author: LEWIS, J.

text:
    Raymond James PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1907.
    District Court of Appeal of Florida, First District.
    April 16, 2003.

      Nancy A. Daniels, Public Defender; Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Raymond James Perkins, appeals the trial court’s revocation of his probation. Concluding that the trial court based the revocation on a violation not charged in the probation officer’s violation of probation affidavit, we reverse the trial court’s revocation without prejudice to the right of the State to refile an appropriate affidavit in this case.

By information dated April 30, 1999, the State charged appellant with one count of felony battery. Following appellant’s plea, the trial court sentenced appellant to eighteen months in prison to be followed by eighteen months’ probation. The third condition of appellant’s probation, which is the pertinent one for purposes of this appeal, provided that, “You will not change your residence or employment or leave the county of your residence without first procuring the consent of your Probation Officer.”

On April 18, 2001, appellant’s probation officer filed a violation of probation affidavit, alleging that appellant committed six probation violations. The officer alleged that appellant violated the third condition of his probation for “[flailure to notify officer of change of address his current whereabouts are currently unknown.” Both the officer’s violation report and the warrant issued for appellant’s arrest set forth the same allegation.

During the revocation hearing on April 29, 2002, appellant’s probation officer testified that on April 6, 2001, he went to appellant’s residence and was informed by appellant’s landlord that appellant had “left that day.” According to the officer, he next saw appellant in December 2001 when appellant reported to his office. On cross-examination, the officer testified that he provided appellant’s landlord with his card and requested that she call him if appellant returned to the residence. He also testified that he spoke with appellant on the telephone in October 2001.

Following the officer’s testimony, appellant moved to dismiss the officer’s six alleged violations. As to the allegation concerning appellant’s third condition of probation, appellant argued that the State’s hearsay evidence could not serve as the only basis for the violation. While the trial court dismissed the other five allegations, with regard to the officer’s allegation that is pertinent to this appeal, the trial court stated, “I’m going to deny that motion because that’s not the only evidence. The other evidence is he didn’t report from May through — or at least May through November....”

Appellant next testified that his landlord evicted him from his residence on April 6, 2001. On cross-examination, he testified that he reported to his probation officer during the months of May through November. He also testified that he informed his officer about his address change and that he wrote the change on his monthly report.

Following appellant’s testimony, the trial court stated, “The Court is finding that the defendant has, in fact, violated his probation by absconding for the months 'of May through November. He’ll be adjudicated guilty of the violation of probation.” The court then sentenced appellant to three years in prison with credit for time served. Based upon the record before us, the trial court failed to make a written finding of appellant’s probation violation. This appeal followed.

Appellant argues that the trial court committed reversible error in finding a violation of probation for an allegation that was not contained in the violation of probation affidavit. The revocation of a defendant’s probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law. Richardson v. State, 694 So.2d 147, 147 (Fla. 1st DCA 1997) (citations omitted). While the State contends that appellant did not preserve this issue for appellate review, a contemporaneous objection was not required as a deprivation of the right to due process of law constitutes fundamental error. See id. (citations omitted).

A trial court is not permitted to revoke probation on conduct not charged in the affidavit. Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000) (holding that the trial court erred in finding that the appellant violated his probation for possessing cocaine as the affidavit failed to allege such a violation); see also N.L. v. State, 825 So.2d 509, 510 (Fla. 1st DCA 2002) (reversing the trial court’s finding that the appellant violated probation as it did not find that the violations that were alleged were proven, and as it ordered revocation on a ground never alleged); Grimsley v. State, 830 So.2d 118, 119 (Fla. 2d DCA 2002) (noting that, while the trial court found that the appellant violated probation for failing to report to her probation officer, the officer’s affidavit neither mentioned the reporting requirements nor alleged that the appellant.had neglected to report); Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000) (reversing and remanding the trial court’s finding that the appellant violated probation as neither the violation of probation affidavit nor the violation report specifically alleged that appellant violated condition five of his probation when he broke a stockade rule by testing positive for alcohol); Harrington v. State, 570 So.2d 1140, 1142 (Fla. 4th DCA 1990) (reversing and remanding the trial court’s finding that the appellant violated probation for smoking marijuana as the affidavit specified that the intoxicant used was cocaine).

“An affidavit upon which a permanent revocation of probation, is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence.” Hines v. State, 358 So.2d 183, 185 (Fla.1978). Here, appellant’s probation officer alleged in his April 18, 2001, affidavit that appellant violated condition three of his probation for “[fjailure to notify officer of change of address his current whereabouts are currently unknown.” In other words, as of the middle of April, appellant’s whereabouts were unknown. However, the trial court found that appellant violated his probation for absconding during the months of May through November. While appellant’s probation officer testified at the hearing that appellant had not reported during the months of May through November, he did not file an amended affidavit alleging such a violation. Nor did the State move to orally amend the affidavit during the revocation hearing. See Rosser v. State, 658 So.2d 175, 176 (Fla. 3d DCA 1995) (noting that it is settled that the State may substantively amend its eharg-ing document during trial over the defendant’s objection unless there is a showing of prejudice to the substantial rights of the defendant).

In Johnson v. State, 811 So.2d 749 (Fla. 2d DCA 2002), the Second District addressed a similar issue in rihich both the affidavit and the trial court’s finding included similar conduct that occurred on different dates. In Johnson, the appellant was charged by affidavit with violating his community control by failing to remain confined to his approved residence on March 31, 2000. Id. During the revocation hearing, the State orally moved to amend the affidavit to include an allegation that the appellant also failed to remain confined on April 11, 2000. Id. After granting the State’s request, the trial court heard testimony from the appellant’s community control officer about the alleged March and April violations. Id. Following the trial court’s continuation of the revocation hearing, in order that the appellant could gather and produce evidence as to why he was absent from his residence on April 11, 2000, the officer filed an amended affidavit, which contained the March 31, 2000, allegation and five new allegations, but did not contain the April allegation. Id. at 750. After the appellant failed to produce any evidence regarding the April allegation during the final hearing, the trial court entered a written order that set forth that the appellant violated the conditions “as alleged in the amended affidavit.” Id.

The Second District, in reversing and remanding the trial court’s order, followed prior case precedent that a trial court is not permitted to revoke probation on conduct not charged in the affidavit. Id. Because the allegation that the appellant was not home on April 11, 2000, was not charged in the amended affidavit, the court held that it was not a permissible ground for the revocation. Id. The court reversed the revocation without prejudice to the right of the State to refile an appropriate affidavit. Id.

Although the instant case deals with a probationer who allegedly absconded, while the appellant in Johnson failed to remain confined to his approved residence, Johnson is instructive on the issue of how specific allegations in violation affidavits must be stated in order to form the basis of a trial court’s violation order. While the appellant in Johnson engaged in the same “conduct” on both March 31, 2000, and on April 11, 2000, by allegedly failing to stay confined, because the specific date of April 11, 2000, was not included in the amended affidavit, the Second District reversed the trial court’s order. Here, like Johnson, the trial court’s revocation of appellant’s probation was based upon conduct not charged in the officer’s affidavit. The affidavit did not allege that appellant violated his probation by absconding during the months of May through November. Therefore, the trial court could not revoke appellant’s probation on this basis.

While the State contends that appellant’s violation actually began in April 2001, notwithstanding the trial court’s express reference to the month of May, we decline to speculate as to what the trial court actually meant in its finding. Accordingly, because the trial court found that appellant violated his probation for conduct not specifically charged in the violation of probation affidavit, we reverse the trial court’s revocation of appellant’s probation without prejudice to the right of the State to refile an appropriate affidavit in this ease.

REVERSED.

VAN NORTWICK and HAWKES, JJ., CONCUR.

      . Although not an issue on appeal, we note that a trial court must enter a written order specifying the terms and conditions of probation that have been violated. See Jones v. State, 638 So.2d 126 (Fla. 1st DCA 1994).


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    John MOSELY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3512.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Bennett H. Brummer, Public Defender and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   GREEN, J.

Appellant, John Mosely, appeals his conviction and sentence for strong armed robbery. Mosely argues that the trial court abused its discretion by refusing to allow defense counsel the opportunity to individually question each prospective juror about his defense of misidentifieation. He also asserts that on the motion for new trial, the trial court erroneously failed to consider and rule on his claim that the weight of evidence did not support the jury’s verdict. We find no merit to his second argument, but we do, however, agree with his first argument, and reverse for a new trial.

Rose Marshall was walking toward North Miami Avenue and 57th Street when she saw an African-American man wearing a dark red short-sleeved T-shirt walking toward her on the opposite side of the street. She could not recall the color of the man’s pants. He was carrying a gas tank in one hand, and something Marshall described as “a long tool used to cut grass with,” presumably a weed whacker, in the other hand. Marshall also noticed that this man crossed over to the same side of the street that she was on after they had passed one another. Marshall testified that moments after she saw the man cross the street, she heard a loud noise from behind that startled her. When she turned around, the man was there, grabbed for a gold chain she was wearing, tore it off and caused her to stumble. The man fled the scene when another man approached. Marshall did not notice if the man had the gas tank or weed whacker, or if he dropped them either before or after he stole the chain.

As Marshall went to a nearby house to call the police, she observed the man entering another home nearby, and exit wearing a beige shirt. She saw the man again shortly thereafter on her way to the supermarket, and pointed him out to an off-duty police officer, Officer Narron, that was on the scene. Officer Narron testified at trial that the man Marshall pointed out was wearing red pants and a blue shirt. After Officer Narron approached the man and called out to him, the man fled, jumping over a nearby fence. Officer Narron then lost sight of the man, and set up a perimeter in the area in order to apprehend him.

Fifteen minutes later, Officer Narron and another officer witnessed John Mosely enter a tailor shop and exit through the rear door. Soon after that, Mosely was apprehended by a police canine unit in a vacant lot and arrested. At the time of his arrest Mosely was wearing a dark red tank top and dark red pants. There was no evidence as to what happened to the beige or blue shirt, other than they were not found within the established perimeter.

During voir dire, defense counsel questioned the prospective jurors individually regarding their feelings about the state’s burden of proof, the reasonable doubt standard, and the defendant’s right to silence at trial. After permitting defense counsel to individually question five potential jurors about their ability to understand and accept the defense of misidentification, the trial judge stopped the individual questioning, and questioned the jury panel collectively on the issue. Defense counsel requested a sidebar in order to discuss the matter with the court. The court denied the request and instructed defense counsel to move on to another topic. The appellant preserved this issue by later renewing his objection to the court’s refusal to allow individual questioning about his defense prior to the jury being sworn.

At trial, the victim, Rose Marshall, testified that the man who stole her gold chain was the same man she saw get arrested in the vacant lot. However, when asked to identify her attacker in court, Marshall pointed to a different man in the courtroom audience, not to Mosely. Mosely was convicted of strong armed robbery and resisting without violence, and sentenced to 35 years in prison, with a thirty-year minimum mandatory term. Mosely appeals, claiming that the trial court abused its discretion in prohibiting defense counsel from individually questioning the prospective jurors on the defense of mis-identification, the sole defense presented at trial. We agree.

Although trial judges are vested with broad discretion in regulating the extent and scope of the examination of prospective jurors, such discretion must be tempered with the right of both the state and defense to examine jurors orally on their voir dire which is guaranteed by Fla. R.Crim. P. 3.300(b). In construing this rule, we recently held that the trial court cannot question prospective jurors on critical areas such as the presumption of innocence, burden of proof, and the right to silence, and then preclude counsel from further individual examination under the guise that it would be repetitive. Miller v. State, 785 So.2d 662, 663 (Fla. 3d DCA 2001)(citing Sanders v. State, 707 So.2d 664, 668 (Fla.1998)); see also Miller v. State, 683 So.2d 600, 602 (Fla. 2d DCA 1996)(stating that “[ajlthough the trial judge certainly has the discretion to limit repetitive and argumentative voir dire, a trial judge must allow counsel the opportunity to ascertain latent or concealed prejudgments by prospective jurors.”).

The issue of misidentification was the core or critical issue in this case, and we conclude that the defendant was effectively denied his right to a fair and impartial jury by virtue of the trial court’s restriction on the individual questioning of the venire panel about his sole defense. See, e.g., Lavado v. State, 492 So.2d 1322, 1323 (Fla.1986)(holding that trial court’s refusal to allow defendant to question prospective jurors on their willingness to accept a voluntary intoxication defense denies the defendant’s right to fair and impartial jury); Walker v. State, 724 So.2d 1232, 1234 (Fla. 4th DCA 1999)(finding that trial court erred in refusing defendant’s request to question prospective jurors as to their willingness to accept the defense of entrapment). In Lavado, the Supreme Court adopted the dissent of Judge Daniel Pearson in Lavado v. State, stating, inter alia, that

[wjhat is a meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried. The scope of voir dire therefore “should be so varied and elaborated as the circumstances surrounding the juror under examination in relation to the case on trial would seem to require.... ” Thus, where a juror’s attitude about a particular legal doctrine ... is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.

469 So.2d 917, 919-20 (Fla. 3d DCA 1985)(Pearson, J., dissenting)(internal citations omitted).

Thus, for the foregoing reasons, we reverse the appellant’s conviction and remand for a new trial.

      . See Williams v. State, 744 So.2d 1103, 1106 (Fla. 3d DCA 1999).


author: PER CURIAM.

text:
    Harold Wayne BLACKWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-830.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Bennett H. Brummer, Public Defender, and Andrew M. Teschner, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before GODERICH, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Lee v. State, 770 So.2d 231 (Fla. 3d DCA 2000); Perez v. State, 479 So.2d 266 (Fla. 5th DCA 1985).


text:
    Jennifer J. YORK, Appellant, v. Keith M. McCARRON and Jessica Anne, etc., Appellees.
    No. 1D02-4512.
    District Court of Appeal of Florida, First District.
    April 16, 2003.

      Jessica Joan York, pro se, Tallahassee, for Appellant.
    Keith Michael McCarron and Jessica Anne McCarron, pro se, Tallahassee, for Appellees.
   PER CURIAM.

Appellant, Jennifer Joan York, seeks review of an order denying her motion to dissolve a permanent injunction against repeat violence. We reverse and remand with directions. Because section 784.046(7)(e), Florida Statutes (2000), provides that “[ejither party may move at any time to modify or dissolve the injunction,” the trial court should have allowed appellant to present evidence regarding the initial procurement of the injunction at a hearing. Without passing on the merits of appellant’s motion, we reverse and remand to the trial court with directions to conduct a hearing on appellant’s motion. See Madam v. Madan, 729 So.2d 416, 416 (Fla. 3d DCA 1999) (reversing and remanding as the trial court should have allowed the appellant to present evidence regarding the initial procurement of the injunction at the hearing).

REVERSED and REMANDED with directions.

VAN NORTWICK, LEWIS and HAWKES, JJ., concur.


text:
    Joseph CONCEPCION, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0263.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    A. Richard Troell, Crestview, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 10, 2003, the appeal is hereby dismissed for lack of jurisdiction. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999). In light of the dismissal, the appellant’s motion to supplement the record and motion for extension of time to file initial brief, both filed February 6, 2003, are denied.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


author: PER CURIAM. FLETCHER, Judge

text:
    John L. JACKSON, Appellant, v. BARNETT DEALER FINANCIAL SERVICES, INC., a Florida Corporation, and Miami Lincoln Mercury, Inc., a Florida Corporation, Appellees.
    No. 3D01-1851.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Keith E. Hope, Tallahassee; John G. Crabtree, Key Biscayne; Timothy Carl Blake, Miami, for appellant.
    Stearns, Weaver, Miller, Weissler, Alha-deff & Sitterson, P.A., and Mark D. Solov, and Mark P. Dikeman, and Christopher L. Barnett, Miami; Adams & Quinton, P.A., Boca Raton, and Kenneth L. Paretti, for appellees.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988) (stating that: “A litigant cannot, in the course of litigation, occupy inconsistent and contradictory positions. Rigg v. Vernell, 428 So.2d 668 (Fla. 3d DCA 1982); Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970), cert. denied, 240 So.2d 641 (Fla.1970).”). See also McCurdy v. J.C. Collis, 508 So.2d 380, 384 (Fla. 1st DCA 1987) (doctrine of estoppel against inconsistent positions provides that party who assumed certain position in legal proceeding may not thereafter assume contrary position).

GODERICH and GREEN, JJ., concur.

FLETCHER, Judge

(concurring).

I would only point out that the appellant benefited (albeit not in an overly substantial manner) from the first position that he took. See State Farm Mut. Automobile Ins. Co. v. Smalley Transport Co., 696 So.2d 522 (Fla. 3d DCA 1997)(Intended to be avoided is allowing a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.)


text:
    Laura SANCHEZ, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION and Williamson Saturn, Inc. d/b/a Saturn of West Dade, Appellees.
    No. 3D01-3054.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Keith E. Hope, Tallahassee; John G. Crabtree, Key Biscayne; Timothy Carl Blake, Miami, for appellant.
    Akerman Senterfitt, and Nancy A. Cop-perthwaite, and Lawrence D. Silverman, Miami; Adams & Quinton, P.A. and Kenneth L. Paretti, for appellees.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988) (stating that: “A litigant cannot, in the course of litigation, occupy inconsistent and contradictory positions. Rigg v. Vernell, 428 So.2d 668 (Fla. 3d DCA 1982); Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970), cert. denied, 240 So.2d 641 (Fla.1970).”). See also McCurdy v. J.C. Collis, 508 So.2d 380, 384 (Fla. 1st DCA 1987) (doctrine of estoppel against inconsistent positions provides that party who assumed certain position in legal proceeding may not thereafter assume contrary position).

GODERICH and GREEN, JJ, concur.

FLETCHER, Judge

(concurring).

I would only point out that the appellant benefited (albeit not in an overly substantial manner) from the first position that she took. See State Farm Mut. Automobile Ins. Co. v. Smalley Transport Co., 696 So.2d 522 (Fla. 3d DCA 1997)(Intended to be avoided is allowing a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.)


author: RAMIREZ, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. Mel Tyrone MOSS, Appellee.
    No. 3D02-1210.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Robert A. Ginsburg, Miami-Dade County Attorney, and Jeffrey P. Ehrlich, Assistant County Attorney, and Jason E. Bloch, Assistant County Attorney, for appehant.
    Mel Tyrone Moss, in proper person.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   RAMIREZ, J.

Miami-Dade County appeals from a summary final judgment which awards the County compensation for the actual number of days served by appellee Mel Tyrone Moss rather than for the number of days to which he was sentenced. We reverse because section 960.293(2)(b), Florida Statutes (2000) provides that the County is entitled to compensation for the days of Moss’ sentence.

Moss entered a plea of nolo contendere to possession of cocaine and was sentenced to 364 days incarceration. He actually served only 271 days, presumably as a result of “gain time” earned for good behavior. After his release, the County filed suit against Moss to recover the costs of incarceration pursuant to section 960.293, Florida Statutes (2000). Section 960.293(2) provides that a convicted offender is liable for incarceration costs and other correctional costs. Subsection (b) specifically provides for “a liquidated damage amount of $60 per day of the convicted offender’s sentence.” (emphasis added). See Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1372-73 (Fla.1998) (holding that the statute is constitutional and addresses the urgent need to decrease the financial burden on the state and its local subdivisions for the expenses of incarcerating convicted offenders).

The County moved for summary judgment to recover incarceration and correctional costs in the amount of $18,200. The trial court held that the statute was intended to compensate the state and its subdivisions for the part of the sentence that was actually served and entered final judgment for the County in the amount of $13,550.

We reverse because the plain language of section 960.293(2)(b) states that damages are liquidated for the number of days of the convicted offender’s sentence, not the number of days actually served. Liability is incurred upon conviction when the actual time served is not known and therefore, damages are determined by the length of the sentence. See Cruz v. State, 742 So.2d 489 (Fla. 3d DCA 1999) (affirming a civil restitution lien assessed while the defendant was still serving his sentence). See also Goad v. Florida Dept. of Corrections, 28 Fla. L. Weekly S176 (Fla. Feb. 27, 2003) (imposing incarceration costs on sentence remaining after statute’s effective date).

Reversed and remanded.


author: SCHWARTZ, Chief Judge. COPE, J.,

text:
    Lissette PEREZ, Appellant, v. AMERICAN MEDICAL, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-1843.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Lissette Perez, in proper person.
    John D. Maher (Tallahassee), for Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   SCHWARTZ, Chief Judge.

This appeal, like the one in Tourte v. Oriole of Naples, Inc., 696 So.2d 1283 (Fla. 2d DCA 1997), is from a decision of the Unemployment Appeals Commission which approved an appeals referee’s factual finding determining that the claimant was entitled to unemployment compensation benefits because she had voluntarily left her employment “for good cause attributable to the employer”, 696 So.2d at 1284, but concluded as a matter of law that there was no such good cause. As in Tourte, “[bjecause the appeals referee’s decision that Ms. Tourte left for good cause attributable to the employer was supported by substantial, competent evidence,” 696 So.2d at 1284, we reverse the Commis-siop’s action under review as an improper substitution of its judgment for that of the referee.

The appeals referee’s decision was based upon his assessment of the legal effect of the following factual circumstances which underlay Ms. Perez’s departure from her position:

The claimant became employed by the operator of a hospital, as a certified nursing assistant on March 6, 2001. The claimant had been promised a position as a patient care technician, a somewhat higher position that she held in her previous job. The claimant was told to work in that position until a higher position came up. During the ensuing eight months the claimant complained frequently because she continued to work as a certified nursing assistant. At around her last complaint, the claimant was asked if she wanted to work as a secretary. The claimant accepted. After training, the claimant was promoted to the position, which is actually labeled secretary/technician. In this type of position, if services were necessary in patient care, the secretary/technician could be of help. After training and several weeks of working in the position, the claimant received some complaints regarding mistakes. On January 30, 2002, the claimant called in ill. The claimant was off on Thursday and Friday, the 31st of January and February 1. In the meantime, the nurse manager had decided that the claimant was not going to work as a secretary unless she received some training, and changed her schedule beginning Saturday to work as a certified nursing assistant. Although the claimant frequently received calls at a new number or through her mother’s number, she was not called at this time. When the claimant reported for work on February 2, 2002, she found someone working in her position. When no one could explain to her why, including the charge nurse, the claimant called the nursing office and spoke to a supervisor. The supervisor advised the claimant that there was a note from the nurse manager that was assigning the claimant to another section to work as a certified nursing assistant. The claimant advised the supervisor that she would not work as a certified nursing assistant. The claimant was offended because she had been changed to the position of certified nursing assistant without discussing it with her beforehand. The supervisor warned the claimant that if she left, she would be terminated. The claimant did not work as a certified nursing assistant on the day in question. The claimant was separated from her employment effective February 2, 2002.

The Commission’s contrary decision was, almost self-avowedly, merely a reassessment of the legal effect of these facts. Its order stated:

The referee found that the claimant quit with good cause when she left work rather than work as a certified nursing assistant. The record reflects that the claimant was hired as a secretary/technician, but she worked primarily in the secretarial position for three months. When the employer noticed problems with the claimant’s performance as a secretary, it was decided to schedule the claimant as a technician, which involved duties as a cértified nursing assistant, while providing the claimant additional training as a secretary. The referee reasoned that the employer “demoted” the claimant because the claimant had not been informed previously of the employer’s plans to provide her additional training. To the contrary, the claimant was hired with the understanding that she would also perform certified nursing assistant duties. While the employer was unable to inform the claimant of its plans to provide her additional training (though the employer’s witness testified that the employer had attempted to do so), the employer has every right to address an employee’s performance problems. Moreover, there is no evidence that the employer reduced the claimant’s wages or changed her hours of work. The claimant left work and did not return rather than discuss her concerns with the employer. The claimant did not make reasonable efforts to preserve her employment prior to quitting; therefore, she voluntarily left work without good cause attributable to the employing unit, [e.s.]

As again elucidated by Tourte, we conclude that this re-interpretation process was unjustified. As Tourte said, in disapproving a Commission decision in language which can be applied, almost word for word, to this case:

We acknowledge this is a close case, and had the appeals referee decided to deny benefits, we would agree with that decision. We would agree because the appeals referee, as the fact-finder, personally heard the testimony, had the opportunity to observe the witnesses as they testified, and reached conclusions which we cannot from the cold record.
It was undisputed that Ms. Tourte was hired as a construction secretary. The dissent implies that because Ms. Tourte did not have a written employment contract, there were no obligations imposed on the employer. If this were a breach of contract action, we would agree. However, just because an at-will employee may be fired without any risk of a breach of contract action against the employer does not prevent that employee from seeking unemployment compensation benefits.
It is also undisputed that Ms. Tourte was to be denied the construction secretary position. It could be argued that her “voluntary” leave was premature because she had not yet been transferred to sales. A careful reading of the record reveals that she was, in fact, performing the duties as a secretary in sales as well as construction, a situation that Oriole conceded was a two-person job. The employer’s solution was to remove Ms. Tourte from the construction secretary position, the job for which she was specifically hired, and have her become the full-time sales secretary, a position she would not have accepted at the time of hire. The question of whether an employee took sufficient reasonable steps prior to resigning for good cause attributable to the employer is an issue to be resolved by the fact-finder.[] See Kralj v. Unemployment Appeals Comm’n, 537 So.2d 201 (Fla. 2d DCA 1989). Here, the appeals referee found Ms. Tourte’s actions reasonable and proper.

Tourte, 696 So.2d at 1286. Accord, e.g., Gary v. Unemployment Appeals Comm’n, 838 So.2d 1251 (Fla. 2d DCA 2003); Ferguson v. Henry Lee Co., 734 So.2d 1161 (Fla. 3d DCA 1999); San Roman v. Unemployment Appeals Comm’n, 711 So.2d 93 (Fla. 4th DCA 1998); Andino v. Lantana Partners, Ltd., 692 So.2d 945 (Fla. 2d DCA 1997); Amato v. Unemployment Appeals Comm’n, 648 So.2d 284 (Fla. 4th DCA 1995).

For these reasons, the decision under review is reversed and the cause remanded with directions to afford Ms. Perez the benefits claimed.

WELLS, J., concurs.

COPE, J.,

(dissenting).

The majority opinion acknowledges, “The [on duty] supervisor warned the claimant [Ms. Perez] that if she left, she would be terminated.” Majority opinion at 287. She left. While the nurse manager should have discussed the reassignment with Ms. Perez directly rather than leaving her a note, the fact remains that the employer had made a decision to reassign Ms. Perez to a nursing assistant position in which she had previously worked. As the Unemployment Appeals Commission correctly points out, the appellant should not have walked off the job under these circumstances. She should have obeyed the order that day, and requested a meeting with the nurse manager on the next business day.

The majority opinion seems to take the position that Ms. Perez quit rather than accept the nursing assistant reassignment. According to Ms. Perez’ brief, that is not correct. Ms. Perez was offended by being reassigned without an in-person discussion with the nursing manager. She indicates that she told the on duty supervisor that she was leaving until she could have such a discussion. On speaking with management several days later, Ms. Perez said that she would accept the nursing assistant position. The hospital refused, since Ms. Perez had left work after being warned that a departure would result in termination.

There is no question but that the hospital handled its communications with Ms. Perez badly. However, in terms of the applicable law, the Commission’s ruling was correct.

      . In this case the Commission stated “the claimant did not make reasonable efforts to preserve her employment prior to quitting.”


author: COPE, J.

text:
    AMERICAN SALES AND MANAGEMENT ORGANIZATION, Appellant, v. ADMANCO OVERSEAS, INC., Appellee.
    No. 3D02-2847.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Feldman Gale & Weber and Lawrence S. Gordon and Alejandro O. Soto, Miami, for appellant.
    Jones, Bodet & Harrison and Marcus G. Bodet, for appellee.
    Before COPE and WELLS, JJ„ and NESBITT, Senior Judge.
   On Rehearing Granted

COPE, J.

On consideration of the motion for rehearing filed by American Sales and Management Organization, the court withdraws its order entered January 30, 2003, and substitutes the following opinion.

American Sales and Management Organization appeals an order relating to arbitration procedure. We treat the initial brief as a petition for certiorari and grant it in part.

I.

Plaintiff-respondent Admanco Overseas, Inc. filed suit for damages against defendant-petitioner American Sales. The plaintiff asserted claims for breach of contract, account stated, and quantum meruit.

The litigation arises out of an agreement for providing airport handling services to an air carrier in Aruba. The underlying contract was between the defendant and General Air Services, Inc. The plaintiff is the assignee of General Air.

After the plaintiff filed suit, the defendant moved to compel arbitration pursuant to an arbitration clause contained in the contract. The trial court correctly granted the motion and stayed the action pending results of the arbitration.

Thereafter, the parties disagreed on whose burden it was to initiate the arbitration proceedings. The plaintiff took the position that since the defendant had moved to compel arbitration, it was the defendant’s burden to initiate the arbitration proceeding. The defendant took the position that since the plaintiff was the party requesting affirmative relief and had filed the lawsuit, it was the plaintiffs burden to initiate the arbitration. The defendant refused to name its arbitrator pending resolution of this dispute.

After further proceedings in the trial court, the court ordered the parties to jointly prepare a notice commencing arbitration and ordered the defendant to name its arbitrator. The defendant has petitioned for a writ of certiorari.

II.

We conclude that the petition is well taken as it relates to the burden of going forward with the arbitration claim. We also conclude that this issue is within our certiorari jurisdiction. See Davidson v. Foshee Enterprises, Inc., 467 So.2d 1118 (Fla. 1st DCA 1985).

When the trial court granted the motion to compel arbitration, it was saying in substance that the plaintiff had filed its claim in the wrong forum. The plaintiff filed a lawsuit in court when the plaintiff should have filed a claim in arbitration. See Davidson, 467 So.2d at 1118.

Since the plaintiff filed the lawsuit and is the party seeking affirmative relief, it follows that the plaintiff now must initiate the arbitration process and prepare its statement of claim. See § 684.08(1), Fla. Stat. (2002); see also 1 Gabriel M. Wilner, Domke on Commercial Arbitration § 14:00, at 215 (Rev. ed. 2002) (“Generally, it is the party seeking substantive relief which must initiate the arbitration, rather than the respondent.”) (footnote omitted). The defending party must then file its response and counterclaim (if any). Id. § 684.08(4).

As the submission of a claim, followed by a response, is the customary procedure, we quash the part of the order which requires a joint submission. The plaintiff must initiate the arbitration proceeding.

The defendant also argues that the trial court should not have ordered the defendant to appoint its arbitrator. Since the defendant has subsequently named its arbitrator, that issue is moot.

Certiorari granted in part, denied in part.

         The arbitration clause is governed by chapter 684, Florida Statutes (2002), pertaining to international arbitrations.


text:
    Louis LUBIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2041.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Louis Lubin, in proper person.
    Charles J. Crist Jr., Attorney General, and Michael Neimand, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Graham v. State, 372 So.2d 1363 (Fla.1979); Cole v. State, 758 So.2d 1289 (Fla. 3d DCA 2000).


author: PER CURIAM. COPE, J.,

text:
    The STATE of Florida, Petitioner, v. Daniel BROCCA, Respondent.
    No. 3D02-2652.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Charles J. Crist, Jr., Attorney General, and Frank J. Ingrassia, Assistant Attorney General (Fort Lauderdale), for Petitioner.
    Richard G. Dunberg, South Miami, for Respondent.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

We affirm the trial court’s finding that Section 90.803(24), Florida Statutes (2001), is unconstitutional. We agree with the trial court’s reasoning, which mirrored the reasoning in the Florida Supreme Court case of Conner v. State, 748 So.2d 950 (Fla.1999).

In concurrence with the Fourth District Court of Appeal’s recent opinion in State v. Hosty, 835 So.2d 1202 (Fla. 4th DCA 2003), we certify the following to the Florida Supreme Court as a question of great public importance:

IS SECTION 90.803(24), FLORIDA STATUTES (2001), AS APPLIED TO DISABLED ADULTS, FACIALLY VI-OLATIVE OF A CRIMINAL DEFENDANT’S RIGHT TO CONFRONT WITNESSES UNDER BOTH THE UNITED STATES AND FLORIDA CONSTITUTIONS?

Petition for certiorari denied; question certified.

GERSTEN and FLETCHER, JJ., concur.

COPE, J.,

dissenting.

First, under controlling precedent of the United States Supreme Court, the hearsay exception for disabled adults, § 90.803(24), Fla. Stat. (2002), is clearly constitutional; it does not violate the Confrontation Clause. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The same conclusion — that the statute is constitutional — follows from Conner v. State, 748 So.2d 950 (Fla.1999).

Second, the majority opinion is also in conflict with Felder v. State, 767 So.2d 1267 (Fla. 3d DCA 2000), as relates to a hearsay declarant who testifies in court.

I.

The State has charged defendant-respondent Daniel Brocea with two counts of sexual battery on a mentally defective person over the age of twelve years. See § 794.011(4)(e), Fla. Stat. (2000).

By chronological age, the victim, N.R., is thirty-two years old. Court-appointed psychologists have opined that N.R. has an I.Q. of approximately fifty with childlike verbal abilities and a developmental age of a seven-year-old.

The defendant is a driver of a transportation service who transported N.R. to and from his job as a bagger at a supermarket. N.R. told his mother that when the defendant drove him home, the defendant entered the house and had sexual relations with N.R. N.R. was examined at the rape treatment center and subsequently interviewed by law enforcement personnel, after which the defendant was arrested.

The State filed a notice of intent to rely on hearsay statements of N.R. In doing so, the State proceeded under subsection 90.803(24), Florida Statutes, which provides a hearsay exception for disabled adults.

The State sought to introduce the statements that N.R. made to his mother regarding the encounter with the defendant in the family’s home. The State also sought to introduce the statements made by N.R. to Pam Garman, an interviewer at the Children and Special Needs Center of the State Attorney’s Office.

The State’s notice did not specify whether it will call N.R. to testify at trial. It is reasonably clear that the State wishes to do so, but a preliminary determination will need to be made whether N.R. is competent to testify. See Charles W. Ehrhardt, Florida Evidence §§ 601.1, 603.1 (2d ed. 2002).

The defense opposed the introduction of the hearsay statements. The defense argued that subsection 90.803(24) hearsay exception for disabled adults violates the Confrontation Clause of the United States Constitution. In so doing, the defense relied on the Florida Supreme Court’s decision in Conner v. State, 748 So.2d 950 (Fla.1999).

The trial court held the statute unconstitutional as relates to disabled adults and excluded the proffered hearsay statements. The State has petitioned for a writ of certiorari.

II.

The Legislature has enacted a hearsay exception for statements of disabled adults and elderly persons. § 90.803(24), Fla. Stat. This exception allows the admission of statements which describe “any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult....” Id. § 90.803(24)(a) (emphasis added).

In order for such hearsay statements to be admissible, the elderly person or disabled adult must either (a) testify, or (b) be unavailable as a witness. Id. § 90.803(24)(a)2.a., b. If the declarant is unavailable as a witness, there must be “corroborative evidence of the abuse or offense.” Id. § 90.803(24)(a)2.b.

In Conner, the Florida Supreme Court held that the part of this hearsay exception which relates to hearsay statements of elderly persons violated the Confrontation Clause of the United States Constitution, and thus could not be applied in criminal eases. The Conner case involved an unavailable declarant, not a declarant who testified at trial.

The Conner court declined to reach the constitutionality of this hearsay exception as it applies to disabled adults. Conner, 748 So.2d at 960 n. 11. This case now presents that question.

III.

The Confrontation Clause of the Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

Professor Ehrhardt has explained that the relevant case for Confrontation Clause analysis of subsection 90.803(24) is Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Professor Ehrhardt stated:

Rather than focus on the criteria outlined in Ohio v. Roberts, [448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ] to determine whether a recently adopted hearsay exception complies with the Confrontation Clause, one should look to Idaho v. Wright. Wright is a better guide because it interpreted a statement of a child abuse victim to a pediatrician that was admitted under a state’s residual hearsay exception, and because Justice O’Connor established the parameters for determining whether a statement admitted under an exception that is not firmly-rooted has “particularized guarantees of trustworthiness.”

Charles W. Ehrhardt, When Children and the Elderly are Victims: Balancing the Rights of the Accused Against Those of the Victim, 55 U. Miami L.Rev. 645, 652 (2001) (footnotes omitted).

In Idaho v. Wright, the United States Supreme Court summarized the test “for determining when incriminating statements admissible under an exception to the hearsay rule also meet the require-m'ents of the Confrontation Clause.” 497 U.S. at 814, 110 S.Ct. 3139 (citation omitted). The Court said:

“First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Second, once a witness is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”

497 U.S. at 814-15, 110 S.Ct. 3139 (quoting Ohio v. Roberts) (emphasis added).

A.

The first question under Idaho v. Wright is whether the hearsay declarant will testify. Id. at 814, 110 S.Ct. 3139.

If the declarant testifies, then there is no Confrontation Clause issue. Id.; Felder v. State, 767 So.2d 1267 (Fla. 3d DCA 2000). That is so because once the declar-ant is on the witness stand and subject to examination, the witness can be asked about his or her hearsay statements.

Turning now to subsection 90.803(24), one option is that the disabled adult actually testifies at the trial. Id. § 90.803(24)(a)2.a., Fla. Stat. If N.R. testifies, the statute is clearly constitutional from a Confrontation Clause standpoint. Idaho v. Wright, 497 U.S. at 814, 110 S.Ct. 3139; Felder v. State, 767 So.2d at 1267.

B.

The second possibility is that the hearsay declarant is unavailable to testify. In that situation, the hearsay is admissible if the declarant’s “statement ... bears adequate indicia of reliability.” Id. at 815, 110 S.Ct. 3139 (citations and internal quotation marks omitted). If the hearsay exception is not firmly rooted — and subsection 90.803(24) is not — then there must be “a showing of particularized guarantees of trustworthiness.” Id. (citations and internal quotation marks omitted).

Subsection 90.803(24) satisfies the requirements of Idaho v. Wright. Under the statute the trial court must determine that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” § 90.803(24)(a)1., Fla. Stat. The statute contains a nonexclusive list of factors to be considered in assessing reliability:

In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate....

Id.

In addition, case law criteria have been developed. The standards for child hearsay cases are instructive where, as here, the declarant is a mentally disabled adult.

In [State v.] Townsend, [635 So.2d 949 (Fla.1994),] in an effort to ensure the reliability of any statement that would be admissible, we set forth additional factors that may be considered by the court including
the statement’s spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.

Conner, 748 So.2d at 957-58.

Those criteria are certainly applicable to statements by a mentally disabled adult. Although chronologically thirty-two, N.R. functions at the level of a seven-year-old. He lives at home, is dependent on others for transportation, and is able to work only in a supervised setting.

In Conner, the court expressed concern that the factors identified in subsection 90.803(24) were not tailored for determining the reliability of hearsay statements made by elderly persons. 748 So.2d at 958-59. But see Charles W. Ehrhardt, supra, 55 U. Miami L.Rev. at 654.

Those concerns are not applicable here, because N.R. is, as a practical matter, a child. Certainly the body of law which has developed with respect to the hearsay statements of child victims applies intact (or with little modification) to the situation of a mentally disabled adult.

In Ohio v. Roberts, the Supreme Court said that the public interest in enforcing the law is a factor which weighs in favor of the admission of reliable hearsay of an unavailable declarant: “Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings.” Ohio v. Roberts, 448 U.S. at 64, 100 S.Ct. 2531 (citations omitted).

IV.

The Conner opinion is being interpreted by the majority and by the Fourth District as having struck down the elderly person hearsay exception in its entirety. State v. Hosty, 835 So.2d 1202 (Fla. 4th DCA 2003); majority opinion at 291 (following Hosty). That is not a correct reading of Conner, and conflicts with Felder v. State, 767 So.2d at 1267.

The facts of the Conner case involved an elderly victim who was unavailable to testify at trial. The elderly victim died before the trial took place. 748 So.2d at 953. The entire discussion in Conner was whether there were sufficient indicia of reliability to allow the elderly victim’s hearsay statements to be admitted into evidence — given that the victim himself was unavailable. In that context, the court held the elderly person hearsay exception unconstitutional.

Under another part of the statute, however, elderly person hearsay is also admissible if the hearsay declarant testifies at trial. If the elderly victim testifies at trial then there is, of course, no Confrontation Clause objection. Idaho v. Wright, 497 U.S. at 814, 110 S.Ct. 3139. This court has already so held. Felder v. State, 767 So.2d at 1267.

It is plain that in speaking as it did, the Conner court only intended to address the issue presented — an unavailable elderly declarant — and did not reach a question not before it: the appropriate analysis where the elderly victim actually testifies at trial.

V.

The Legislature pursued an important policy objective in enacting subsection 90.803(24). As a result of Conner, however, the force of subsection 90.803(24) has been reduced or eliminated in criminal cases.

There is a straightforward legislative solution to this, one I hope the Legislature will see fit to adopt. The Legislature should consider enacting a residual hearsay exception to Florida’s Evidence Code, patterned on Federal Rule of Evidence 807.

Twenty-eight states have already taken this step. Thus, the residual hearsay exception now represents the majority rule in the United States — twenty-eight states plus the entire federal system. See 6 Weinstein’s Federal Evidence, Table of State and Military Adaptions Federal Rules of Evidence, at T-159 through T-162 (Joseph M. McLaughlin, ed., 2d ed.2002).

Adoption of a residual hearsay exception would effectively reenact subsection 90.803(24) in a form likely to withstand facial constitutional challenge. In criminal cases, Confrontation Clause analysis would proceed as outlined in Idaho v. Wright.

The federal residual hearsay exception is now numbered as Federal Rule of Evidence 807. It provides:

RULE 807. RESIDUAL EXCEPTION
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

In the long run it is likely to be more effective to adopt a widely-accepted residual exception instead of crafting a series of specific statutes aimed at specific groups to be protected.

VI.

For the stated reasons, the order now before us should be quashed. The trial court should proceed to a determination whether the victim is competent to testify, in which case the Confrontation Clause has been satisfied. If the victim is not competent to testify, then the court must proceed to analyze the reliability of the hearsay statements § 90.803(24)(a)1.; Conner, 748 So.2d at 958 (listing factors to be considered), as well as a determination that there is corroborative evidence of the sexual offenses. Id. § 90.803(24)(a)2.b.

      . The alleged crime date was May 22, 2000.

      . In his interview with Ms. Garman N.R. stated that it is bad to tell a lie and that he had told the truth about the driver having sex with him.

      . While the State has not made this argument in its petition, it amounts to fundamental error. We cannot countenance the striking down of this part of the statute on a fundamentally flawed analysis.

      . Although no one has raised the point, N.R.’s statements might be independently admissible under subsection 90.803(23), Florida Statutes, the hearsay exception for child victims. For child hearsay purposes, subsection 90.803(23) defines a child victim as one with a “physical, mental, emotional, or developmental age of 11 or less...." Id. § 90.803(23)(a) (emphasis added). See State v. Green, 667 So.2d 756, 757-58 (Fla.1995) (applying subsection 90.803(23) to mental age of seven); Mathis v. State, 682 So.2d 175, 177 (Fla. 1st DCA 1996) (developmental age less than eleven); State v. Campbell, 664 So.2d 1085, 1086 (Fla. 5th DCA 1995) (mental age of seven or eight). This court has described the statute as applying to children who are eleven years of age or less, E.B. v. State, 733 So.2d 1145 (Fla. 3d DCA 1999), but the case did not involve any issue of mental or developmental age under eleven.
      In the present case, N.R. has a mental age of seven. The charged crimes appear to fit the description of "any offense involving an unlawful sexual act ... on the declarant child ...."§ 90.803(23)(a), Fla. Stat.

      . This was formerly Federal Rule of Evidence 803(24). It became Rule 807 in 1997. See 5 Weinstein’s Federal Evidence, ch. 807, at 807-1.


text:
    M. Abigail IKEHARA, etc., Appellant, v. William L. VIANDS, Jr., Appellee.
    No. 3D02-3381.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Robert A. Mercer, Miami, for appellant.
    Kevin Coyle Colbert, Miami, for appel-lee.
    Before JORGENSON and GODERICH, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See § 737.208, Fla. Stat. (2002).


text:
    A.J.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3148.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before JORGENSON, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

A.J.D. appeals the revocation of his community control claiming the trial court erred by basing the revocation solely on hearsay evidence. We agree and reverse.

A.J.D. was originally sentenced to community control. Subsequently, the State filed an affidavit of violation of community control alleging that A.J.D. failed to attend school as required by the conditions of his community control.

At the revocation hearing, AJ.D’s probation officer testified A.J.D. failed to attend school every day. Defense counsel objected on hearsay grounds. The probation officer stated that she had the school records with her. The State, however, failed to move these records into evidence or introduce any other non-hearsay evidence. The trial court found A. J.D. violated his community control and ordered A.J.D. into a residential treatment program.

A.J.D. asserts error because the State failed to introduce non-hearsay evidence to support its affidavit. The State contends the trial court’s order should be affirmed because the school records were admitted under the business record exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2002).

It is clear that hearsay is admissible in revocation proceedings, however, it cannot be the sole basis for revocation. See Hall v. State, 744 So.2d 517 (Fla. 3d DCA 1999). Therefore, the probation officer’s testimony alone is insufficient to revoke A.J.D.’s community control.

AJ.D.’s probation officer had no personal knowledge as to whether A.J.D. attended school. Although the probation officer testified that she reviewed the school records, the State did not move these records into evidence. See Adams v. State, 521 So.2d 337 (Fla. 4th DCA 1988)(probation officer’s testimony based on review of probation department’s records was insufficient to sustain revocation order).

Regardless, even if the State moved to admit the school records as a business record exception, the probation officer was not the custodian of records nor was she qualified to testify as to the preparation or the reliability of the records. See E.C. v. State, 675 So.2d 192 (Fla. 4th DCA 1996)(to have records admitted under the business record exception, school official who either had personal knowledge of defendant’s suspension or who was custodian of records should have testified); Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991)(court held that reports admitted at probation hearing were insufficient to support admission under the business record exception).

Accordingly, because hearsay evidence alone is insufficient to establish a violation of community control, we reverse the revocation order.

Reversed.


text:
    Warren ROBERTS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-398.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Adelstein and Matters, P.A., Miami; Gary Kollin, P.A., and Gary Kollin, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for respondent.
    Before GREEN and RAMIREZ, JJ„ and NESBITT, Senior J.
   RAMIREZ, J.

Warren Roberts petitions for a writ of prohibition to prevent the respondent State of Florida from prosecuting him due to the expiration of the speedy trial period as provided for in Florida Rule of Criminal Procedure 3.191. We deny the petition because we find that the trial court properly denied Roberts’ motion for discharge.

Rule 3.191(c) provides that a trial commences “when the trial jury panel for that specific trial is sworn for voir dire examination. ...” See also McDermott v. State, 383 So.2d 712, 714 (Fla. 3d DCA 1980). It is undisputed that the trial in this case commenced within the speedy trial period because a jury panel was brought to court and sworn pursuant to rule 3.300(a) within the time provided under rule 3.191.

During voir dire, however, Roberts successfully moved to strike the panel. The next morning, when a new jury panel had been assembled and voir dire was to begin, the State requested a continuance to seek a grand jury indictment, arguing that Roberts had waived his speedy trial rights and the State was entitled to an additional 90 days pursuant to rule 3.191(m). The trial court granted the continuance, finding that the State can add or upgrade charges following a mistrial.

Roberts argues on appeal that his situation is similar to McDermott. We cannot agree. In McDermott, after the jury had been selected and sworn, the State was granted a 55-day continuance to secure the presence of witnesses. McDermott did not in any way contribute to the delay. Additionally, the State had not shown good cause to warrant a continuation. Id. at 715. This case does not deal with a situation where the State, through its own fault, caused a delay. The delay here was caused by Roberts’ motion to strike the panel. At that point, Roberts had been timely brought to trial because the trial commenced when the jury panel was sworn. Rule 3.191(m) provides, in pertinent part:

Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court....

Although it does not specifically mention a motion to strike the panel, we interpret rule 3.191(m) to apply to a situation where the defendant makes such a motion, thereby becoming “a person to be tried again.” The State, therefore, had ninety days from the date in which Roberts’ motion was granted to bring him to trial.

Petition denied.


text:
    Anthony HODGES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-457.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Anthony Hodges, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Lewis v. State, 841 So.2d 582 (Fla. 3d DCA 2003); § 958.04(1)(c), Fla. Stat. (2000).


text:
    FIRST AMERICAN TELECOMMUNICATIONS CORP., Appellant, v. CITY OF MIAMI BEACH, and Florida Department of Transportation, Appellees.
    No. 3D03-454.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Ward, Damon & Posner, and Michael Posner, West Palm Beach, for appellant.
    Murray H. Dubbin, Miami Beach, and Robert Dixon, Miami, and Debora J. Turner, Miami Beach, and Gary M. Held, Miami; and Pamela S. Leslie, and Marianne A. (Vos) Trussell, Tallahassee, for appel-lees.
    Before COPE, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Bacardi U.S.A., Inc. v. Gallo Wine Distributors, 829 So.2d 963 (Fla. 3d DCA 2002) (temporary injunction denied where legal prerequisites — substantial likelihood of success on the merits, absence of an adequate remedy at law, existence of irreparable injury in the absence of injunctive relief, and non-disservice of the public interest — -are absent).


text:
    Eric WHEELER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-694.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Eric Wheeler, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Major v. State, 814 So.2d 424, 428, 431 (Fla.2002)(eoncluding that neither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future); Wood v. State, 750 So.2d 592 (Fla.1999)(providing that all defendants previously adjudicated would have two years from the date the opinion was issued (May 27, 1999) within which to file Florida Rule of Criminal Procedure 3.850 motions raising claims traditionally cognizable under coram nobis).


author: SHARP, W., J.

text:
    Michael James PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-683.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.

      Douglas L. Kirkland of Douglas L. Kirkland, P.A., Ocala, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Respondent.
   SHARP, W., J.

Michael James Perry seeks a writ of habeas corpus after his bail was revoked. We agree with the trial judge that the motion to revoke bond was properly granted and thus we deny Perry’s petition. However, this case poses an interesting and rarely presented issue of law, which merits being addressed.

Perry claims his bail was wrongfully revoked after a hearing in which the trial court found probable cause he had committed new crimes while on pretrial release, because the only evidence considered at the hearing was a probable cause affidavit showing Perry had been arrested for armed robbery and false imprisonment. The probable cause affidavit alleged that three individuals went into the victims’ home with firearms and woke up all the family members. The family members were all placed into one room. A co-defendant was still in the house when the police arrived, and had a gun pointed to the head of one of the victims. One of the victims later identified Perry as being one of the armed men in the house. Perry was subsequently charged by information with armed burglary and seven counts of kidnapping, based on this incident.

Perry argues that the probable cause affidavit is hearsay and cannot be relied on as the only basis for making a probable cause determination that he committed a new crime while on pretrial release. He also argues he was denied his “constitutional” right to cross-examine the state witness who prepared the affidavit, or to confront the evidence.

Section 903.0471, Florida Statutes, provides for revocation of bail under the circumstances presented in this case. It states:

Notwithstanding section 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.

The constitutionality of this statute has been addressed and upheld by the Florida Supreme Court, in Parker v. State, 2003 WL 1563567, 843 So.2d 871 (Fla.2003). The supreme court held that section 903.0471 is consistent with the pretrial release and detention provision of Article 1, section 14, Florida Constitution, because it assures the integrity of the judicial process. The supreme court also found that section 903.0471 does not violate substantive due process or procedural due process.

This proceeding presents the question of what quality of evidence is required in a proceeding brought under section 903.0471, upon which to base a probable cause finding. Can it be based on hearsay evidence, alone, in the form of a probable cause affidavit?

Perry argues that Florida Rule of Criminal Procedure 3.132(c)(1) requires that an order of pretrial detention not be based exclusively on hearsay evidence. It is the procedural counterpart to section 907.041, the pretrial detention statute. However, section 903.0471 is independent of section 907.041, and the procedures and requirements of the two are different.

The supreme court in Parker indicated that the probable cause determination required under section 903.0471 is similar to the probable cause determination which supports an arrest warrant or the probable cause determination made at first appearance.

In making a probable cause finding to support an arrest warrant, a judge considers a sworn affidavit prepared by a law enforcement officer. See, e.g., Ryan v. Worch, 755 So.2d 818 (Fla. 2d DCA 2000). It is often based on hearsay information, and sometimes double-hearsay, as the officer may refer to statements made by eyewitnesses who observed the alleged crime and identified the defendant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (probable cause may be established by hearsay and information received from informants); Johnson v. State, 660 So.2d 648 (Fla.1995), rev. denied, 517 U.S. 1159, 116 S.Ct. 1550, 134 L.Ed.2d 653 (1996) (it is within a magistrate’s discretion to determine weight to be given to hearsay and there will be cases in which hearsay alone establishes probable cause).

If an arrest warrant is not issued, the judge at first appearance makes a similar probable cause determination. Florida Rule of Criminal Procedure 3.133(a)(3) states that this is a non-adversary determination, and the court should apply the same standard as is required for issuing an arrest warrant. The probable cause finding at first appearances may be based on sworn complaints, affidavits, depositions under oath, or if necessary, on testimony under oath properly recorded.

Following Parker, we conclude that with regard to bail revocations pursuant to section 903.0471, if a defendant has already been arrested in a second case as occurred here, the court may revoke bail in the first case based solely on a probable cause affidavit prepared in the second case for an arrest warrant or a probable cause determination at first appearance. There is no indication in the language of section 903.0471, in contrast to section 907.041, that the Legislature intended there be an adversary hearing or that there be proffered anything other than the kind of evidence required to support an arrest warrant or probable cause determination at first appearances. Nor do the federal or state constitutions or other statutes and rules of this state require anything more.

Petition for Writ of Habeas Corpus DENIED.

THOMPSON, C.J., and MONACO, J., concur.

      . Section 907.041, Florida Statutes (2002), is the pretrial detention and release statute governing the procedure after an arrest.

      . "Probable cause" means a reasonable ground of suspicion supported by circumstances strong enough to warrant a cautious person to believe that the named suspect is guilty of the charged offense. See Johnson v. State, 660 So.2d 648, 653 (Fla.1995).


author: MONACO, J.

text:
    Wyman LAWRENCE, Appellant, v. PEP BOYS-MANNY MOE & JACK, INC., Appellee.
    No. 5D02-1057.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.

      Raymond A. Haas, Paul L. Kutcher, Carol L. Castleberry, and Christopher B. Clark of Haas, Dutton, Capito, Blackburn, Lewis & Longley, Tampa, for Appellant.
    Kendall B. Rigdon, Maria B. Vazquez, Rigdon, Alexander & Rigdon, L.L.P., Orlando, for Appellee.
   MONACO, J.

Wyman Lawrence, appeals the final summary judgment rendered in favor of the appellee, Pep Boys-Manny Moe & Jack, Inc. (“Pep Boys”), in this trip-and-fall case brought by Mr. Lawrence. Because the trial court erroneously failed to consider an affidavit filed by Mr. Lawrence when it granted the summary judgment, we reverse.

Summary judgments are reviewed de novo by an appellate court. See Volusia County v. Aberdeen of Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002). The standards to be used in the review of a summary judgment are familiar. In order to determine the propriety of a summary judgment, an appellate court must resolve whether there is any “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, the moving party has the burden to prove conclusively the nonexistence of any genuine issue of material fact. City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000)(citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). Accordingly, we must view the evidence contained in the record, including any properly asserted supporting affidavits, in the light most favorable to the non-moving party, and if the slightest doubt exists, the summary judgment must be reversed. See Scheibe.

Mr. Lawrence allegedly tripped on the grounds of a Pep Boys store, and was injured. During his deposition Mr. Lawrence testified that he did not know if he would have noticed the configuration of the depressed and uneven area of the parking lot where he tripped if he had looked at it while walking. His response was not pursued. He did testify, however, that there were no cars or objects blocking the area of concern from his vision. Thereafter, Pep Boys filed its motion for summary judgment.

A few days before the hearing on the motion Mr. Lawrence filed an affidavit attaching a number of photographs that had been discussed in an earlier deposition of another person, and which were taken of the critical area a few days after the incident at the same time of day. In his affidavit Mr. Lawrence asserted that the late afternoon shadows cast by nearby buildings made it difficult to see the faulty area of the parking lot where he tripped.

At the hearing on the motion for summary judgment the trial court granted Pep Boys’ motion to strike the affidavit, concluding that it was contradictory to the previously given deposition testimony. A review of the deposition testimony and of the affidavit demonstrates, however, that the affidavit did not contradict the deposition.

It is well established that a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with new and starkly different sworn affidavit testimony, solely to avoid summary judgment. See Ellison v. Anderson, 74 So.2d 680 (Fla.1954); Ondo v. F. Gary Gieseke, P.A., 697 So.2d 921 (Fla. 4th DCA 1997), rev. denied, 707 So.2d 1126 (1998); Arnold v. Dollar General Corp., 632 So.2d 1144 (Fla. 5th DCA 1994). More specifically, the supreme court held in Ellison that:

[W]hen met by a Motion for Summary Judgment [a litigant] should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.

74 So.2d at 681.

In the present case we cannot say that the affidavit of Mr. Lawrence “baldly” contradicted his earlier deposition testimony. He was never asked about shadows, or specific lighting conditions, and nothing that he said in his deposition is in direct or blatant contradiction to the affidavit. He was only asked if he could have seen the area that he asserts caused him to trip if he had looked, and he responded that he did not know. His response did no more than explain from Mr. Lawrence’s perspective why he was unable to answer this question. Moreover, the photographs associated with the affidavit were part of the earlier discovery in the case, and were not suddenly or unexpectedly produced at the summary judgment hearing. Finally, if the affidavit had been considered by the trial judge, it would have presented a factual issue that would have precluded summary judgment.

We arrive at this result because it appears that the trial court granted the summary judgment when it determined that the defective condition in the parking lot where Lawrence allegedly tripped was “open and obvious” as that term is used in Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA), rev. denied, 604 So.2d 486 (Fla.1992), and Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207 (Fla. 5th DCA 1990). We conclude, however, that a genuine dispute exists with respect to whether the purported dangerous condition was open and obvious, particularly when the affidavit of Lawrence is factored into the equation. See Johnson v. Circle K Corporation, 734 So.2d 536 (Fla. 1st DCA 1999). We are likewise unable to tell from the record, as supplemented by the affidavit, whether the landowner discharged its duty to maintain its property in a reasonably safe condition. See Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001); Hogan v. Chupka, 579 So.2d 395 (Fla. 3d DCA 1991). These issues will require resolution by a jury.

REVERSED and REMANDED.

SAWAYA, J. and LAMBERT, B„ Associate Judge, concur.


author: THOMPSON, C.J.

text:
    Jay CANAVAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2655.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Jay Canavan, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann. M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Jay Canavan appeals the summary denial of his motion to correct an illegal sentence. Canavan pleaded guilty in 1993 to two counts of lewd and lascivious assault upon a child and was sentenced as a habitual felony offender to 25 years in jail on the first count, and a consecutive 15 years of probation on the second count. He alleges that his offenses arose from a single incident, and therefore, his two consecutive habitual offenses must run concurrent under Hale v. State, 630 So.2d 521 (Fla.1993). Canavan points out that the convictions involved similar acts upon the victim, and both occurred on the same day. Canavan alleges that the face of the record, including the information and the pre-sentence investigation report, demonstrates that the two offenses occurred at the same time. After a review of the record, we agree and reverse.

The trial court summarily denied Cana-van’s motion, pointing out that a claim is facially insufficient if the defendant fails to allege where and how the record supports his claim that consecutive habitual offender sentences were imposed for offenses occurring in a single criminal transaction. See Phipps v. State, 806 So.2d 565 (Fla. 1st DCA 2002). The court also found that Canavan did not receive consecutive habitual offender sentences and had failed to state a facially sufficient claim under Hale. A copy of the sentence was attached to the court’s order and shows that Canavan was sentenced to 25 years incarceration for count one, with a notation that he was being sentenced as a habitual offender, followed by 15 years probation, with no express notation that the latter was as a habitual offender.

In West v. State, 790 So.2d 518 (Fla. 5th DCA 2001), we held that a defendant who was adjudicated a habitual offender and sentenced to 10 years incarceration followed by probation received an illegal sentence because the offenses arose from a single criminal episode. See also Whitfield v. State, 804 So.2d 1274 (Fla. 5th DCA 2002); Johnson v. State, 809 So.2d 892 (Fla. 2d DCA 2002); Benjamin v. State, 667 So.2d 437 (Fla. 2d DCA 1996); Taylor v. State, 658 So.2d 635 (Fla. 2d DCA 1995). But see Davis v. State, 710 So.2d 1051 (Fla. 1st DCA 1998) (where defendant was found to be a habitual offender only as to count one, consecutive probation term on count two was not erroneous although the offenses arose from a single episode).

We conclude that Canavan’s motion was facially sufficient because it identified the portions of the record that would show that his offenses arose out of a single criminal episode. Although Canavan attached the information and the plea agreement to his motion instead of, as he probably intended, the information and the presentence investigation report, his motion alleged that the information and the presentence investigation report demonstrate that the two offenses occurred at the same time.

Accordingly, we reverse and remand for the trial court to either attach portions of the record establishing that the offenses in question did not arise from a single criminal episode or correct the sentences. Compare, West; Whitfield.

REVERSED and REMANDED.

GRIFFIN and TORPY, JJ., concur.


author: GRIFFIN, J.

text:
    COOCEN & SONS, CO., INC., Appellant, v. Leighton A. ROSENTHAL, Appellee.
    Nos. 5D02-1056, 5D02-1469.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.

      Ronald W. Sikes, of Moran & Shams, P.A., Orlando, for Appellant.
    Scott J. Johnson, of Holland & Knight, LLP, Orlando, for Appellee.
   GRIFFIN, J.

This is the appeal of a final judgment in an action for breach of a lease and a separate final judgment awarding attorney’s fees. After trial, the court awarded landlord $166,358.32 and denied tenant any recovery on the counterclaim. Landlord also was awarded $58,442.94 in attorney’s fees as the prevailing party under the fees provision in the lease. We affirm.

On August 2Ó, 1999, Leighton A. Rosen-thal [“Landlord”] and Coocen & Sons Co., Inc. [“Tenant”] entered into a lease agreement whereby Tenant leased an industrial warehouse owned by Landlord. The property was apparently in need of repair, so the lease provided that upon taking possession on August 20, 1999, Tenant would make repairs at its own expense in exchange for not paying rent until January 1, 2000. With the exception of Tenant’s deferred obligation to pay base rent, all other obligations under the lease were to commence on August 20, 1999. One of Tenant’s obligations was to provide Landlord with a $17,559.76 security deposit and a $75,000 letter of credit from a bank. Tenant was also obliged to pay real estate taxes and insurance. Tenant paid the security deposit of $17,559.76 upon execution of the lease in August 1999 but did not furnish the $75,000 letter of credit. For his part, Landlord was obligated under the lease to repair the roof as necessary, repair the perimeter fencing as necessary and remove the racking system.

Tenant wrote a letter to Landlord on September 2, 1999, indicating that it had believed the letter of credit was not due until January 1, 2000, and that it could not deliver the letter of credit until October 15, 1999. Landlord agreed to the extension, but Tenant failed to provide the letter of credit by October 15, 1999. Tenant remained in possession and Landlord accepted rent payments from January 2000 until April 2001 when Tenant ceased paying rent, but Tenant never furnished Landlord with the letter of credit. Landlord sent numerous notices of default for failure to provide a letter of credit, including a final demand letter in June 2001. On July 10, 2001, Landlord sued Tenant for eviction and for breach of lease alleging Tenant’s failure to pay rent, cure other defaults or deliver possession of the property to Landlord. Tenant defended and counterclaimed against Landlord alleging breach of contract, constructive eviction, declaratory judgment and negligence based prin-eipally on the contention that Landlord had breached the lease prior to October 15,1999, by failing to repair the roof. The record, however, discloses no evidence that Tenant withheld the letter of credit based on the lack of roof repair or that Tenant complained to Landlord about a failure to make roof repairs. Tenant’s letter of February 11, 2000, which is the first documented communication to Landlord, refers to a wide range of issues pertaining to the lease and its implementation but does not mention the roof. The first record reference to the roof is a letter to the Landlord from Tenant in May 2000 deducting $285 from the rent for a roof repair made by Tenant.

Tenant argues on appeal that it was unclear in the lease whether the letter of credit was due upon the commencement of the lease on August 20, 1999, or upon the first rent payment on January 1, 2000. Tenant further contends that because the Landlord agreed that the letter of credit would be accepted by October 15,1999, the trial court erred in finding the obligation of Tenant to provide the letter of credit arose at the commencement of the lease. Finally, Tenant asserts that Landlord’s failure to begin the repairs set forth in Section 1.08 of the Lease constituted a material breach of the lease which excused Tenant from delivering the letter of credit. Landlord contends that his duty to undertake roof repairs did not arise until the security was in place, that Tenant never demanded the roof repairs be made, and that Tenant never raised the lack of roof repairs as an excuse for failing to supply the letter of credit.

Our review reveals no reversible error. The duty to provide the letter of credit arose on August 20, 1999. It was not provided, even by the extended deadline, and under the evidence presented, its provision was not excused by the Landlord’s failure to make roof repairs.

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . Section 2.01. Commencement of Term — The term of this Lease and Tenant’s right to occupy the Leased Premises shall commence effective August 20, 1999. All terms and conditions of the Lease shall commence August 20, 1999 with the exception of Tenant’s obligation to pay “Base Rent,” which obligation shall commence January 1, 2000 as provided for in Section 3.01 of this Lease below.

        Section 2.02. Length of Term — The term of this Lease shall be a period of five (5) years from January 1, 2000 through December 31, 2004.

      . Section 3.05. Security Deposit-To secure the faithful performance by Tenant of the covenants, conditions and agreements set forth in this Lease to be performed by it, Tenant has deposited with the Landlord the sum of Seventeen Thousand Five Hundred Fifty-nine Dollars and 76/100 ($17,559.76) ... To further secure the faithful performance by Tenant of the covenants, conditions and agreements set forth in this Lease, Lessee shall furnish and provide to Landlord a $75,000.00 letter of credit from a financial institution reasonably acceptable to Landlord, and in form and substance reasonably satisfactory to Landlord ("Letter of Credit”).

      . Section 3.03. Obligation of Tenant in Addition to Rent — Tenant will be responsible for all operating expenses (excluding structural), including all other maintenance expenses, real property taxes, building insurance, content and liability insurance, refuse removal, fire alarm system, electrical, utilities and Florida Sales Tax.

      . Section 1.03. Condition of Premises—
      a) Landlord shall, at Landlord's sole cost and expense, make the following improvements to the Property;
      i) repair the roof of the Building as necessary;
      ii) repair the perimeter fencing as necessary; and
      iii) remove the racking systems in the interior of the Building.
      b) With the exception of the items enumerated in Section 1.03(a) above, the Leased Premises are delivered to and accepted by Tenant in an "as is” condition and Landlord shall have no responsibility with respect thereto ... As part of the consideration herein, Tenant shall (at Tenant’s sole cost and expense) improve the Leased Premises ... All such construction shall be performed by Tenant.


text:
    Shane Alan SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1993.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Shane Alan Sawyer [“Sawyer”] appeals the denial of his motion to suppress. We reverse.

Sawyer was stopped by a police officer for failing to dim his headlights. During the stop, the officer noticed a single white pill sitting in plain view on the console. He reached into the car and seized the pill. After examining it, he believed it to be “Ecstasy” because of the design he observed on it.

Based on this incident, Sawyer was charged by information with one count of possession of methylenedioxymethamphe-tamine (“MDMA”), more commonly know as Ecstasy. He filed a motion to suppress, arguing that the officer had no probable cause to seize the pill. At the hearing on the motion to suppress, the officer acknowledged that, although the pill was in plain view, he could not tell what kind of pill it was until he seized it. It was only after he seized the pill that he saw a design on the pill that caused him to believe it was Ecstasy. The officer explained:

The Ecstacy[sic] pills that I have observed in the past, have had different designs on them and cartoon characters, different designs on them.

Sawyer argued that his motion to suppress should be granted because the pill could have been a legal substance, such as ibuprofen or aspirin, and it was not until the officer seized it that its incriminating nature became apparent.

The court ultimately denied Sawyer’s motion to suppress in a written order. The order recited that:

While speaking with the passenger, Officer Morris observed a white pill on the center console. Officer Morris removed the pill from the center console and examined it. Upon examining the pill, Officer Morris noticed a butterfly design which he determined was consistent with the controlled substance ecstacy[sic].

(emphasis added). The court then made a different finding, however:

[Officer Morris] saw the pill in the center console of the vehicle while talking to the passenger. He didn’t have to search the vehicle to discover the pill, it was in plain view. It was apparent to Officer Morris prior to examining the pill that it was contraband. Based on the reasoning in State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979), this court must conclude that the evidence should not be suppressed based on the “plain view” doctrine and Officer Morris did not conduct a warrantless search when he seized the contraband in plain view,

(emphasis added). Based on this finding, the court denied suppression.

We agree with appellant that no evidence in the record supports the trial court’s finding that “[i]t was apparent to Officer Morris prior to examining the pill that it was contraband.” The officer testified that he could not tell what kind of pill it was until he seized it, and that it was only after he seized the pill that he saw a design on the pill which made him believe it was Ecstasy.

The State argues that an officer is not required to know certain items are contraband or evidence of a crime before seizing them. It argues that seizure is justified if the facts available to the seizing officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime. Here, however, Officer Morris never testified that he believed prior to the seizure that the item was contraband, nor did he testify to any facts which would have rendered that belief reasonable.

The plain view doctrine provides that items in plain view may be seized when (1) the seizing officer is in a position where he has a legitimate right to be, (2) the incriminating character of the evidence is immediately apparent, and (3) the seizing officer has a lawful right of access to the object. Pagan v. State, 830 So.2d 792, 807 (Fla.2002). In this case, the incriminating character of the pill was not “immediately apparent.” Florida courts consistently have held that when closer examination of an item observed in plain view is necessary to confirm the incriminating nature of the contraband, its incriminating nature is not considered “immediately apparent.” See Caplan v. State, 531 So.2d 88 (Fla.1988); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). It was error to deny the motion to suppress.

REVERSED and REMANDED.

PLEUS and TORPY, JJ., concur.

      . According to the police report, the pill carried a butterfly design.