author: ERVIN, J. BOOTH, J.,

text:
    Henry Maynard BARNUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4759.
    District Court of Appeal of Florida, First District.
    June 2, 2003.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Kathleen Stover, and Deborah Whisnant, Assistant Public Defenders; Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Trisha E. Meggs, Assistant Attorney General; Tallahassee, for Appellee.
   ERVIN, J.

Appellant, Henry Barnum, appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, wherein he claimed that a supreme court decision, Thompson v. State, 695 So.2d 691 (Fla.1997), should be retroactively applied to reverse his judgment and sentence for attempted murder of a law-enforcement officer. We conclude that Barnum is entitled to relief under Moreland v. State, 582 So.2d 618 (Fla.1991), on the basis of fundamental fairness.

Barnum was convicted of attempted first-degree murder of a law-enforcement officer in violation of sections 782.04(l)(a)(l), 777.04(1), and 784.07(3), Florida Statutes (1991). Section 784.07(3) reclassified attempted murder from a first-degree felony to a life felony if the victim was performing his or her duties as a law-enforcement officer. Section 775.0825, Florida Statutes (1991), provided that any person who was convicted under section 784.07(3) must serve a 25-year minimum-mandatory sentence before becoming eligible for parole. The evidence at trial showed that on July 13, 1992, Florida Highway Patrol Trooper Roy Swatts was spending the night in a Tallahassee hotel when he heard a car being burglarized in the parking lot. He went outside in civilian clothing and confronted two men, Barnum and Henry Lynn. He told them he was an officer, but he did not display his badge. Barnum testified that he did not believe the man was a police officer.

In 1991, this court had indicated that knowledge of an officer’s status was not an essential • element of section 784.07(3), when it held that the provision was not unconstitutionally vague for failing to include a requirement that the defendant knew the victim was a law-enforcement officer. Carpentier v. State, 587 So.2d 1355 (Fla. 1st DCA 1991). Barnum was convicted in 1993 and sentenced to 27 years for attempted murder with the 25-year minimum-mandatory sentence under section 775.0825. His attorney did not raise the knowledge issue at trial, but it was a disputed fact and appellant asserted fundamental error on appeal, because the state had failed to prove as an essential element that he knew the victim was a law-enforcement officer.

While Barnum’s appeal was pending, the Fifth District held that knowledge is an essential element of the crime. Grinage v. State, 641 So.2d 1362 (Fla. 5th DCA 1994). In Barnum’s appeal, this court affirmed the attempted-murder conviction without discussion of the knowledge issue, but reversed on another issue not pertinent to the instant case. Barnum v. State, 662 So.2d 968 (Fla. 1st DCA 1995). In a motion for rehearing, Barnum asked for a certified question on the knowledge issue, but this court denied the motion and issued mandate on December 20, 1995.

The Third District subsequently agreed with Carpentier and held in Thompson v. State, 667 So.2d 470 (Fla. 3d DCA 1996), that knowledge is not an element under section 784.07(3). The supreme court accepted jurisdiction to resolve the conflict and approved Grinage in Thompson v. State, 695 So.2d 691 (Fla.1997), holding that knowledge of the victim’s status as a law-enforcement officer is a necessary element of the offense. The court reasoned that section 784.07(2), pertaining to assault or battery upon a law-enforcement officer, expressly required the state to prove that the offense was “knowingly” committed upon an officer, and it would be “illogical and unreasonable” to dispense with such element when proving attempted murder of an officer under subsection (3). Id. at 692.

Barnum timely filed the instant 3.850 motion on December 19, 1997. He claimed he was denied due process under Thompson, because the jury was not asked to determine whether he knew the victim was a law-enforcement officer. He also claimed his trial counsel was ineffective by failing to request a jury instruction on knowledge as an essential element.

The following year, while Barnum’s 3.850 motion was pending, the Fourth District refused to apply Thompson retroactively in Sweeney v. State, 722 So.2d 928 (Fla. 4th DCA 1998). The court analyzed Thompson under Witt v. State, 387 So.2d 922 (Fla.1980), and concluded that the supreme court in Thompson had “merely applied principles of statutory construction in holding that the statute implicitly requires a factual finding that the defendant have knowledge of the victim’s status,” and thus the decision was not constitutional in nature, and would not apply on collateral review. Sweeney, 722 So.2d at 931.

Various procedural impediments delayed an evidentiary hearing on Barnum’s 3.850 motion until February 23, 2001. The prosecutor conceded that knowledge had been a disputed element in Barnum’s trial. The trial court nevertheless denied Barnum’s 3.850 motion, ruling that in the absence of a decision from this court or the supreme court, it was bound to follow the Fourth District’s decision in Sweeney; consequently, Thompson could not be considered retroactive, nor could trial counsel be deemed ineffective for failing to anticipate a change in the law.

We decline to follow Sweeney in this case, because the Fourth District did not consider Moreland v. State, 582 So.2d 618 (Fla.1991), which we find controlling. The supreme court stated in Moreland that fundamental fairness may require the retroactive application of a decision, even when a Witt analysis might favor finality. Moreland was convicted of first-degree murder and sentenced to life in prison. He claimed at trial and on appeal that African Americans had been unconstitutionally excluded from his jury pool pursuant to an administrative order dividing Palm Beach County into eastern and western jury districts. While his appeal was before the Fourth District, a defendant who was convicted of murder and sentenced to death in Palm Beach County raised the same issue on appeal to the supreme court. After the Fourth District affirmed Moreland’s conviction and sentence without an opinion, the supreme court issued Spencer v. State, 545 So.2d 1352 (Fla.1989), holding that the jury districts in Palm Beach County were unconstitutional.

Moreland filed a motion under rule 3.850, asking to have his conviction and sentence vacated under Spencer. The trial court applied Spencer retroactively, but the Fourth District concluded that it was an evolutionary refinement under Witt that could not be made retroactive. The supreme court agreed that Spencer was not a major jurisprudential change, but nevertheless reversed, stating that it would apply the case to Moreland’s situation based upon fundamental fairness and uniformity of adjudications. “If Moreland had been sentenced to death, he would have appealed to this Court, rather than the district court, and would have obtained the same relief as Spencerf,]” and it would be fundamentally unfair to deny the same relief to Moreland “because his sentence directed his appeal to a court other than this one.” Moreland, 582 So.2d at 620. Accord Fannin v. State, 751 So.2d 158 (Fla. 2d DCA 2000); Benedit v. State, 610 So.2d 699 (Fla. 3d DCA 1992).

In the case at bar, if this court had certified conflict with Grinage in Barnum’s direct appeal, the supreme court could have considered Barnum’s case, decided it in the manner it did Thompson, and remanded for a new trial. We therefore reverse, and certify conflict with Sweeney.

In deciding this case, we have considered State v. Klayman, 835 So.2d 248 (Fla.2002), and Bunkley v. State, 833 So.2d 739 (Fla.2002), in which the court explained that supreme court decisions that “clarify” statutory law apply to all cases, pending or final, while decisions that “change” the law require a Witt analysis. We are unable to reconcile Thompson with either category. Section 784.07(3) did not contain broad terms evincing that the legislature expected the courts to engage in judicial construction, but instead used language that was intended to include a knowledge requirement from the date of the law’s enactment, which, under Klayman, would indicate that the court in Thompson was simply clarifying the meaning of the statute. Yet the court also stated that when deciding the applicability of a decision to final cases, a “key consideration” is whether prior ease law shows that the lower courts were imposing criminal sanctions under the statute in question where none were intended. Klayman, 885 So.2d at 254; Bunkley, 838 So.2d at 745. As examples of decisions that clarified rather than changed the law, the court cited cases in which it could be readily determined from the record that the convictions or sentences had been imposed contrary to the statutes in question as a matter of law, and did not involve factually disputed matters. Klayman, 835 So.2d at 254, n. 8 & 12. In contrast, it cannot be said in this case that the trial court imposed a criminal sanction where none was intended, because the jury might have convicted Barnum of attempted murder of a law-enforcement officer if it had been properly instructed.

Nevertheless, we certify the following question as one of great public importance:

WHETHER THE ANALYSIS OF STATE v. KLAYMAN, 835 So.2d 248 (Fla.2002), APPLIES WHEN AN ISSUE THAT THE SUPREME COURT HAS CLARIFIED REQUIRES RESOLUTION OF A DISPUTED FACTUAL MATTER?

We REVERSE and REMAND for either a new trial or entry of a conviction for the lesser-included offense of attempted murder and resentencing.

BROWNING, J., concurs; BOOTH, J., dissents with opinion.

BOOTH, J.,

Dissenting.

I dissent. Sweeney v. State, 722 So.2d 928 (Fla. 4th DCA 1998), rev. denied, 733 So.2d 517 (Fla.1999).

      . Section 784.07(3) provided:
      Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.
      This provision, enacted in 1988, was rewritten in 1995 and no longer addresses attempted murder of a law-enforcement officer. Ch. 95-184, § 20, at 1710-11, Laws of Fla.

      . See Reed v. State, 837 So.2d 366 (Fla.2002) (stating that failure to instruct on an essential element of a crime is fundamental error if such element was a disputed issue at trial).

      . If the legislature employs terms with broad or fluid meanings, such as "careful and prudent," "reasonable,” and "probable cause,” which may encompass different conduct over the course of time, then a decision interpreting the law is considered an evolutionary refinement that is not applied retroactively. Klayman, 835 So.2d at 253, n. 10; Bunkley, 833 So.2d at 745, n. 14.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jethro WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1558.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 29, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

ERVIN, KAHN and HAWKES, JJ., concur.


author: HAWKES, J.

text:
    William AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2854.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Rehearing Denied July 15, 2003.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Anne C. Toolan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

During cross-examination of the arresting officer, Appellant attempted to elicit testimony as to the contents of his statement at the scene of his arrest. According to the proffered testimony, Appellant told the arresting officer the currency in his possession came from a paycheck he had cashed earlier that day. The trial court excluded the statement after the State objected, arguing it was self-serving hearsay. We affirm.

Appellant concedes the statement was self-serving hearsay and that the rule of completeness does not apply. See Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000) (holding rule of completeness, also referred to as doctrine of curative admissibility, entitles defendant to admit exculpatory portions of his statement when a state witness has testified about incriminating remarks contemporaneously made by the defendant). However, he argues that suppressing the statement violated due process because the court then instructed the jury that it could infer guilt from the unexplained possession of recently stolen property when, in fact, there was an explanation. We need not reach the merits of Appellant’s argument because the suppressed statement did not attempt to explain possession of the victim’s recently stolen currency. Instead, it was a statement that the currency found in his possession was not the currency that was recently stolen. The victim’s purse was stolen just minutes before Appellant gave his statement to the arresting officer. Thus, if the currency found in Appellant’s possession was the same as the currency stolen from the victim just minutes before, Appellant could not have obtained it earlier that day when he cashed his paycheck. Because the statement was a denial that the currency was stolen, it could not be offered to explain why Appellant possessed recently stolen currency.

Appellant also argues that, in any case in which the unexplained possession of recently stolen property jury instruction is given, it constitutes an impermissible comment on the evidence. We decline to address this issue because it was not preserved, and it does not constitute fundamental error. See Currington v. State, 711 So.2d 218 (Fla. 5th DCA 1998); see also Wright v. State, 789 So.2d 1246 (Fla. 1st DCA 2001), review denied, 816 So.2d 131 (Fla.2002).

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., CONCUR.


text:
    Jerry WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0114.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Rehearing Denied July 14, 2003.
    Appellant, pro se.

      Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court correctly denied the appellant’s motion alleging that his consecutive sentences violate Hale v. State, 630 So.2d 521 (Fla.1993), we affirm.

The appellant was convicted of four counts of burglary, four counts of grand theft, one count of possession of burglary tools, and one count of aggravated fleeing and eluding a law enforcement officer. The appellant was sentenced as a habitual felony offender to ten years’ imprisonment on each count. In the appellant’s motion for postconviction relief, the appellant challenges the trial court’s imposition of consecutive sentences for two counts of burglary. The appellant argues that because his crimes were deemed to be part of one criminal episode for the purposes of consolidation at trial, then his crimes should also be deemed part of one criminal episode for the purposes of Hale analysis. However, separate offenses may be joined or consolidated for trial without precluding the trial court from imposing consecutive habitual offender sentences.

In order to join or consolidate cases, the cases must be connected in time, in location, by their nature, and by the manner in which they were perpetrated or there must be a significant causal link between the cases. Smithers v. State, 826 So.2d 916, 923 (Fla.2002). However, in determining whether a court may impose consecutive habitual offender sentences, “the court must consider whether separate victims are involved, whether the crimes occur in separate locations, and whether there has been a temporal break between the incidents.” Woods v. State, 615 So.2d 197, 199 (Fla. 1st DCA 1993).

Thus, joinder is an issue when there is a series of crimes that are linked in a significant way, see e.g., Smithers v. State, 826 So.2d 916 (Fla.2002); Fotopoulos v. State, 608 So.2d 784 (Fla.1992); Bundy v. State, 455 So.2d 330 (Fla.1984) abrogated on other grounds by Fenelon v. State, 594 So.2d 292 (Fla.1992); and consecutive habitual offender sentences may not be imposed when one incident or simultaneous actions support convictions for multiple crimes. See e.g., Hale v. State, 630 So.2d 521 (Fla.1993) (holding that a defendant cannot receive consecutive habitual offender sentences for sale of cocaine and possession of cocaine with the intent to sell for the same piece of cocaine); Whitfield v. State, 804 So.2d 1274 (Fla. 5th DCA 2002) (holding that a defendant cannot receive consecutive habitual offender sentences for battery on a law enforcement officer and resisting an officer with violence for the same altercation); Valdes v. State, 765 So.2d 774, 775 (Fla. 1st DCA 2000). Because joinder and the imposition of consecutive habitual offender sentences depend on separate standards, the fact that the appellant’s crimes were properly joined does not necessarily prevent the trial court from imposing consecutive habitual offender sentences.

In the instant case, the appellant was charged with the burglary of four convenience stores on June 12, 1998, June 16, 1998, and June 24, 1998. These offenses were properly joined because the burglaries occurred over a short time span, they all occurred in the same county, they were all convenience stores, and the locks were removed in a unique manner. The trial court’s decision to run one of the appellant’s sentences for burglary consecutively to another burglary sentence was also proper. In the first count, the appellant was charged with the burglary of a Jiffy Food Store on June 24, 1998, and in the other count, the appellant was charged ■with burglary of a Jiffy Food Store on June 12,1998. Thus, the convictions arose out of separate acts on separate dates. In contrast, if the trial court had imposed consecutive habitual offender sentences for the burglary convictions and the grand theft convictions that arose out of each incident, then the appellant’s sentence would have violated the rationale of Hale. Thus, it was proper for the trial court to deny the appellant’s motion for postconviction relief.

AFFIRMED.

WOLF, LEWIS and POLSTON, JJ., concur.


author: KLEIN, J.

text:
    Lillian Susanne WRIGHT, Appellant, v. David E. LEWIS and American Airlines, Appellees.
    No. 4D01-3319.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    Rehearing Denied July 30, 2003.

      Harvey A. Nussbaum of Beiner & Nuss-baum, P.A., Boca Raton, and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
    Cynthia L. Greene & Associates, P.A., Miami, and Paula Revene of Paula Revene, P.A., Fort Lauderdale, for appellees.
   KLEIN, J.

The Uniform Child Custody Jurisdiction Act (UCCJA) gives Florida courts personal jurisdiction over a nonresident parent to establish, enforce or modify child support orders, if the child resides in Florida “as a result of the acts or directives” of the nonresident parent. The issue in this case is whether the nonresident father, who merely acquiesced in his daughter residing in Florida, is subject to personal jurisdiction. We conclude he is not.

The father and mother were divorced in California in 1985, when the child was two, and, he paid child support, but had no child visitation since 1988. In the 1990’s the child and her mother moved in with the child’s grandmother in Florida. The mother died in 1999 and, when the father learned about it, he terminated child support payments.

The grandmother then filed this suit in Florida to domesticate the California dissolution judgment, and the father moved to dismiss on the ground that Florida had no personal jurisdiction over him. In opposition, the grandmother filed an affidavit stating that after the mother’s death the father telephoned her and advised her that the child would continue to live with her in Florida but that he would not pay child support. The father’s affidavit acknowledged the telephone conversation with the grandmother but denied that he stated that his daughter would continue to reside with her or that he would not pay child support. He further stated that his child, with the agreement of the grandmother, refused to have contact with him.

The trial court, without holding an evi-dentiary hearing to resolve the factual disputes, concluded that the father’s failure to pay child support and his “decision to leave the child” in Florida subjected him to personal jurisdiction under the UCCJA, section 88.2011(5), Florida Statutes (2000). It provides that Florida may exercise personal jurisdiction over a nonresident for purposes of child support if the child resides in Florida “as a result of the acts or directives” of the nonresident. The trial court also held that refusing to pay child support was a tortious act which would give Florida personal jurisdiction under section 48.193(l)(b).

Although the grandmother prevailed on the issues of jurisdiction and enforcement, she has appealed the trial court’s order awarding her only a portion of the attorney’s fees she incurred. The father cross-appeals, asserting no personal jurisdiction. Because we find that there was no personal jurisdiction we need not address the order awarding attorney’s fees except to vacate it.

Accepting the facts alleged in the grandmother’s affidavit pertaining to personal jurisdiction as true, we conclude that Florida does not have personal jurisdiction over the father. We cannot agree with the grandmother that this child was residing in Florida as a result of the father’s “acts or directive.” If we were to hold that the father’s mere acquiescence in the child remaining in Florida would subject him to personal jurisdiction, it would violate the due process clause of the Fourteenth Amendment which requires minimum contacts. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)(a nonresident father was not subject to personal jurisdiction in California, in order to establish a foreign judgment of divorce, merely because he consented to the mother and children moving to California).

Nor can we agree that the father committed a “tortious act” in Florida under our long-arm statute section 48.193(l)(b). The closest case relied on to support the proposition that the father committed a tortious act is Bell v. Tuffnell, 418 So.2d 422 (Fla. 1st DCA 1982). In that case it was alleged that the nonresident father impregnated a Florida resident in Florida and refused to pay child support. The first district held that the father was subject to long-arm jurisdiction, based on cases from other states holding that failure to pay support in a paternity case is a tortious act within the meaning of similar long-arm statutes. We need not decide whether we agree with Bell because it is distinguishable factually in that the father in Bell was in Florida when the child was conceived. If he had not been in Florida, the case would have been indistinguishable from Kulko.

We therefore reverse for entry of an order dismissing for lack of personal jurisdiction.

GROSS and TAYLOR, JJ. concur.

      . Bell was not followed in Department of Health & Rehabilitative Services v. Wright, 489 So.2d 1148 (Fla. 2d DCA 1986) and the Florida Supreme Court approved Wright in Dept. of Health & Rehabilitative Services v. Wright, 522 So.2d 838 (Fla.1988).


text:
    Faustino BLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1875.
    District Court of Appeal of Florida, Third District.
    June 11, 2003.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and RAMIREZ, JJ.

       Chief Judge Schwartz did not hear oral argument.

   PER CURIAM.

Faustino Blanco appeals from an order sentencing him to ten years in prison as a habitual felony offender. For the following reasons, we reverse.

Blanco was charged with one count of third degree theft of an automobile. The court offered Blanco a plea offer of 366 days, well below the guidelines, all credit time served, in exchange for a guilty plea on the aforementioned charge and a charge that was pending in another case. Blanco rejected this offer. The transcript of the proceedings shows that the following took place just prior to the commencement of jury selection:

COURT: This is Faustino Blanco which is before the Court. And I think this is going to be the case for trial. We have a jury that is waiting outside on 01-13563.
PUBLIC DEFENDER: The charge of grand theft.
COURT: Grand theft auto, correct.
PUBLIC DEFENDER: Correct. Page 27.
COURT: The guidelines of the defendant is 39 months, ten years at the top. And there has been a notice of enhancement filed in this case?
PROSECUTOR: Correct, Your Honor. As a habitual offender.
COURT: And he was offered to close both of the cases out 366, is that correct?
PROSECUTOR: At one point the Court has offered 366 and I believe he rejected that.
COURT: We are going to find out now. Swear Mr. Blanco in.
[Defendant sworn in and gives his name]
COURT: All right. Now, you have two cases before this Court Mr. Blanco ... On the [01-12333] case, you are looking at the bottom of the guidelines 31 months at the bottom and 5 years at the top. And on the 01-13563 which the State of Florida has filed seeking to treat you as an habitual offender, you are looking at the bottom 39 months State penitentiary and possible maximum is ten years as a habitual felony offender?
PROSECUTOR: That’s correct.
COURT: My understanding is this Court has made you an offer of 366 all credit time served concurrent on both case are you aware of that, sir?
DEFENDANT: Witness nods.
COURT: You need to speak out loud.
DEFENDANT: No, I am not taking no 366.
COURT: I am not asking you that. I am asking you are you aware that this court has made an offer of 366 days in the State penitentiary, all credit time served, are you aware of that?
DEFENDANT: Yes.
COURT: And you had an opportunity to discuss [the offer] with your lawyer. Is that correct?
DEFENDANT: Yes.
COURT: Okay. And you have decided to reject that offer and you want a trial. Is that correct, sir?
DEFENDANT: Yes.
PROSECUTOR: Your Honor, so that he knows once a jury is brought down the offer is off the table.
PUBLIC DEFENDER: That’s the Court offer anyway.
COURT: It’s still off the table. He has rejected it. It’s been offered before. There is nothing new.

Jury selection commenced. The following morning, Blanco, having a change of heart, indicated that he wanted to accept the plea offer of 366 days. In response, the trial court said:

I took the time before starting to go over jury selection as to whether you desire to take the Court’s offer which is a below the guidelines plea. You have made it very clear to this Court that you wanted your day in Court and that’s exactly what you have.

The court then extended the following offer to close out the case:

The bottom of the guidelines of 39.16 months, that will be as an habitual felony offender.... And if you are inclined to plead guilty as a matter to close both cases I will offer you the 39.15, concurrent as an H.O. on one and no classification on the other, with all credit time served. That’s it sir. If you don’t we have a jury. We will go forward.

Blanco rejected this offer as well. The jury returned a verdict of guilty as charged and the court sentenced Blanco to the statutory maximum of ten years as a habitual felony offender. At the sentencing hearing, the trial court indicated that when she extended the original offer, she was unaware of the facts of the case. We reverse the sentence of ten years.

We agree with Blanco that the ten year sentence is vindictive. In the context of sentencing, “the word ‘vindictive’ has lost its dictionary definitions.... The sentencing term “vindictive’ has become a ‘term of art,’ describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge.” Nairn v. State, 837 So.2d 519, 520 (Fla. 3d DCA 2003).

Recently, in Wilson v. State, 845 So.2d 142 (Fla.2003), the Supreme Court of Florida held that the district courts should look at the totality of circumstances when determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea discussions which included the trial court’s participation. Specifically, the court held that:

[¡Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a ‘reasonable likelihood’ that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial (citation omitted). The other factors that should be considered include but are not limited to: (l)whether the trial judge initiated the plea discussions with the defendant in violation of Warner ; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial (footnote omitted); (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing (footnote omitted).

Id. at 156.

Here, the trial court made an extremely lenient offer without being familiar with the facts of the case and ultimately sentenced the defendant to the statutory maximum. That the court was admittedly unfamiliar with the facts at the time of the pre-trial offer leads to the inescapable conclusion that the offer hinged upon future procedural choices, as prohibited by Warner. Moreover, apart from a brief mention of the sheer volume of Blanco’s priors, information that was readily available pretrial, the court failed to explain the reasons for the significant disparity between the pre-trial offers and the sentence imposed. We think that under the totality of these circumstances, there is a reasonable likelihood that the harsher sentence was imposed in retaliation for Blanco exercising his right to proceed to trial. Although Blanco is no longer entitled to the offer which he originally rejected, he is entitled to be re-sentenced by a different judge. Id. at 156.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

       In State v. Warner, 762 So.2d 507 (Fla.2000), the court held that a judge may participate in, without initiating, the plea dialogue. However, the court can "neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. at 514.


text:
    Juan DaSILVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2905.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.
    Rehearing Denied July 31, 2003.
    Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.-
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Peart v. State, 754 So.2d 723 (Fla. 4th DCA 1999).

KLEIN, STEVENSON and GROSS, JJ., concur.


text:
    Donna SCRIMA, Appellant, v. Christopher HUTCHINS and Roseann Hutchins, his wife, Appellees.
    No. 4D02-3504.
    District Court of Appeal of Florida, Fourth District.
    June 11, 2003.

      Gina E. Caruso of Hinshaw & Culbertson, Fort Lauderdale, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellees.
   PER CURIAM.

The defendant appeals a verdict in favor of the plaintiffs and raises three issues. We find no error in the court’s instruction on res ipsa loquitur or the court’s denial of the defendant’s motion for directed verdict. We also find no error in the court’s refusal to set off the settlement between the plaintiff and another defendant, which occurred prior to trial. See D’Angelo v. Fitzmaurice, 832 So.2d 135 (Fla. 2d DCA 2002) (failure to place the co-defendant’s fault before the jury negates any entitlement to a set-off).

AFFIRMED.

STONE, STEVENSON and MAY, JJ., concur.


text:
    David S. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3426.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cunningham v. State, 795 So.2d 219, 220 (Fla. 4th DCA 2001) (trial court’s finding of probation violation is a question of fact that will not be overturned on appeal unless there is no evidence to support the decision).

THOMPSON, C.J., PETERSON and TORPY, JJ., concur.


author: FULMER, Judge.

text:
    James S. KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2204.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.
    Rehearing Denied July 18, 2003.

      James Marion Moorman, Public Defender, and James T. Miller, Special Assistant, Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck, Horbelt, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

James S. Keller appeals his conviction for vehicular homicide, in violation of section 782.071(2), Florida Statutes (2000). We reverse and remand for a new trial because the trial court erred in denying Keller’s request for special jury instructions.

Keller was the driver of a pickup truck that collided with a car driven by Chris Klueh. Klueh never regained consciousness after the collision and died from his injuries a few days later. Prior to the collision, which occurred after 9:00 p.m. on December 21, 2000, Keller had been drinking and driving erratically. There was evidence that his vehicle’s headlights were not on at the time of the collision. He was traveling at approximately fifty-five miles per hour in a thirty-mile-per-hour zone. Keller’s defense at trial was that Klueh was the sole proximate cause of the collision because Klueh made an illegal left turn into the path of Keller’s oncoming vehicle.

Keller’s passenger, Robert Douches, testified that just prior to the collision, he saw Klueh’s oncoming car with its blinker on to indicate a left turn in front of Keller’s truck. Officer Willmon of the Florida Highway Patrol investigated the collision and interviewed Keller, who stated that Klueh was taking a left turn and Klueh’s car pulled in front of Keller as he was driving straight down the road. Willmon determined that Klueh turned left into the path of Keller’s oncoming vehicle and that Klueh had cut the corner of the intersection. There was some evidence that Keller attempted to brake at the last second. Willmon concluded, however, that the collision would not have occurred if Keller had not been speeding.

Keller presented an accident reconstruction expert witness, Dr. Ricardo Galdos, who testified that the collision occurred in Keller’s lane of travel. If Klueh had turned left from the intersection, instead of cutting the corner and turning before the intersection — that is, if Klueh had traveled another six feet before he turned— the accident would not have occurred because Keller would have been past the intersection. Galdos gave his opinion that even if Keller had been traveling at the speed limit, the collision still would have occurred, and the collision was caused by Klueh violating the right of way.

At trial, the judge gave a special instruction on causation, which was requested by the State and which Keller now challenges on appeal. We reject Keller’s argument on this issue because Keller did not object to the instruction below and the challenged instruction does not rise to the level of fundamental error.

Keller also challenges the trial court’s denial of his request for special instructions detailing the traffic regulations governing the definition of an intersection, violation of the right of way by a vehicle turning left, and proper left turns in an intersection. See §§ 316.003(17), 316.122, 816.151(l)(b), Fla. Stat. (2000). The trial court refused to give Keller’s requested instructions on the grounds that they were either not relevant or the relevance was outweighed by the potential for confusion of the jury.

In order to be entitled to a special jury instruction, a defendant must prove that the special instruction was supported by the evidence, was a correct statement of the law and was not confusing or misleading, and the standard instruction did not adequately cover the theory of defense. Stephens v. State, 787 So.2d 747, 756 (Fla.2001). In a vehicular homicide prosecution, evidence of a victim’s negligence is relevant only if the victim’s act was the sole proximate cause of the accident that caused the victim’s death. See Nunez v. State, 721 So.2d 346, 347 (Fla. 2d DCA 1998) (citing Filmon v. State, 336 So.2d 586, 591 (Fla.1976)). Here, Keller presented an expert witness to support his assertion that Klueh caused the accident by turning left against the right of way.

Evidence of Klueh’s negligent driving was properly admitted. The requested instructions were not confusing or misleading, and they were necessary in order for the jury to evaluate the evidence and determine whether Klueh did violate the traffic regulations concerning left turns against the right of way as Keller’s expert had asserted. The requested instructions were relevant to the jury’s task of deciding causation, and the standard instructions did not adequately cover the theory of defense. We reject the State’s argument that the instructions were not necessary because the traffic regulations are a matter of common knowledge.

Because the special instructions were directly related to the question of proximate cause, which was central to the defense, we cannot say that error in denying the instructions was harmless. See Lambert v. State, 728 So.2d 1189 (Fla. 2d DCA 1999) (denial of special instructions not harmless where instructions were relevant to principal defense).

Reversed and remanded for a new trial.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: LAMBERT, B., Associate Judge.

text:
    Pasqual BRACERO, Appellant/Cross-Appellee, v. Carmen BRACERO, Appellee/Cross-Appellant.
    No. 5D02-240.
    District Court of Appeal of Florida, Fifth District.
    June 13, 2003.
    Norman D. Levin and Richard L. Trion-fo of Norman D. Levin, P.A., Longwood, for AppellanVCross-Appellee.
    David Scott Glicken, Orlando, for Appel-lee/Cross-Appellant.
   LAMBERT, B., Associate Judge.

Pasqual Bracero (former husband) appeals the Amended Final Judgment dissolving his marriage to Carmen Bracero (former wife). He contends that the trial court erred in finding no rehabilitative alimony plan for the former wife was presented in this case. He also argues that the trial court erred in awarding the former wife permanent periodic alimony and in failing to make adequate factual findings on the standard of living established during the marriage, as required by section 61.08(2)(a), Florida Statutes. Lastly, the former husband asserts that the trial court committed reversible error when it failed to impute any income to the former wife when determining the alimony and child support awards and when it ordered him to provide life insurance to secure his alimony obligation without appropriate findings, evidence, and pleadings. The former wife cross-appeals, contending that the trial court erred in calculating the former wife’s income for purposes of setting child support, made inconsistent findings of fact in determining both the equitable distribution of assets and liabilities and the amount of permanent alimony, and failed to consider the former husband’s misconduct in fashioning the equitable distribution and alimony awards. We affirm, without further discussion, the issues on the cross-appeal.

The trial judge’s meticulous, nineteen-page Amended Final Judgment included detailed findings of fact that were supported by the evidence at trial. At the time the Petition for Dissolution of Marriage was filed, the parties had been married over nine years but had been living together for approximately seventeen years. The former husband is a medical doctor whose average annual pre-tax income for the three years preceding the divorce was $256,533.30. The parties had three children of this marriage, one of whom is still a minor. The former wife was 41 years of age and the former husband was 47. The former husband is presently in good health while the former wife suffers from chronic allergies and other medical problems that have led to fatigue and tiredness. The former wife has been primarily responsible for raising the children and maintaining the home. At the time of the dissolution, she was not employed and earned no income. The former husband’s job as a medical doctor required him to work long hours. The former wife has a high school education and has taken some college courses, but being a stay-at-home mom, does not have significant recent gainful employment. In the Amended Final Judgment, the former wife was awarded the sum of $5,500 per month permanent periodic alimony and $402.29 per month for support of the parties’ remaining minor child.

The former husband takes issue with the trial court’s finding that the former wife has failed to provide the court with a rehabilitative plan. Recognizing that rehabilitative alimony cannot be awarded absent a rehabilitative plan, Fullerton v. Fullerton, 709 So.2d 162 (Fla. 5th DCA 1998), the former husband argues that since he, in essence, presented a rehabilitative plan to justify an award of rehabilitative alimony to the former wife, the trial court should have at least considered the plan in evaluating the propriety of awarding rehabilitative alimony.

A rehabilitative alimony plan may be written or oral. Beasley v. Beasley, 717 So.2d 208 (Fla. 5th DCA 1998). As we recently stated, the principal purpose for awarding rehabilitative alimony is to provide funds to a requesting spouse so that he or she can establish the capacity for self-support, either through the development of previous skills or the provision of training necessary to develop potential supportive skills. Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003). However, whether an award of alimony is permanent or rehabilitative is a matter left largely to the discretion of the trial court, and the appellate court must affirm the trial court’s decision if there is a reasonable basis in the record to support the determination. Cash v. Cash, 691 So.2d 6 (Fla. 5th DCA 1997); Moore v. Moore, 548 So.2d 252 (Fla. 5th DCA 1989).

The trial court correctly recognized that this nine-year marriage falls into the “gray area” with there being no presumption for or against an award of permanent alimony. Escudero v. Escudero, 739 So.2d 688 (Fla. 5th DCA 1999); Young v. Young, 677 So.2d 1301 (Fla. 5th DCA 1996). Our careful review of the record demonstrates that the trial court did not abuse its broad discretion in determining that permanent periodic, as opposed to rehabilitative, alimony was appropriate. We do find, however, that the trial court committed reversible error when it failed to impute income to the former wife in determining the alimony and child support awards and when it ordered the former husband to provide life insurance to secure the alimony award without the requisite findings.

In the Amended Final Judgment, the trial court found that the former wife had worked during the marriage and there was no reason why she could not be working at present. The record evidence demonstrates that the former wife could work outside the home. The parties have one remaining minor child and, under the shared parental responsibility provisions of the Amended Final Judgment, the child will be with the husband 46.8% of the time. While the trial court was within its discretion, based upon the evidence at trial, to reject the former husband’s argument that income of approximately $28,000 per year should be imputed to the former wife (which arguably would be reflective of the salary she could earn as a registered nurse), the trial court erred in failing to impute at least minimum wage to the wife. Kreisler v. Kreisler, 752 So.2d 1288 (Fla. 5th DCA 2000).

The trial court also ordered the former husband to provide a $500,000 life insurance policy, with the former wife as the beneficiary, to cover his alimony obligations as long as he had an obligation to pay her alimony. Section 61.08(3), Florida Statutes, permits the court to order a party to purchase or maintain a life insurance policy or a bond as security for payment of an alimony award. However, the Amended Final Judgment contains no findings as to the former husband’s insurability, the cost of the proposed insurance, his ability to afford the insurance and whether appropriate circumstances exist to justify the former husband maintaining this life insurance. See Layeni; Lopez v. Lopez, 780 So.2d 164 (Fla. 2d DCA 2001). On remand, the court, in its discretion, may require the former husband to maintain an appropriate amount of life insurance as security for his alimony obligations, but must make the required findings in the final judgment to support that determination.

In summary, we affirm the trial court’s determination that the former wife is entitled to permanent periodic alimony, but reverse and remand for the reasons set forth herein. On remand, the trial court may take additional evidence as to the issue of life insurance, imputation of income to the former wife and recalculation of the amount of child support and, if necessary, alimony, making the necessary, detailed findings required by section 61.08, Florida Statutes. We affirm the Amended Final Judgment in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

SAWAYA and MONACO, JJ., concur.


author: LEWIS, J.

text:
    Leangelo KELLOM, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0173.
    District Court of Appeal of Florida, First District.
    June 18, 2003.

      Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Leangelo Kellom, appeals the trial court’s denial of his dispositive motion to suppress the contraband discovered in his residence. Appellant contends that the officers who executed the search warrant violated the “knock and announce” rule codified in section 933.09, Florida Statutes (2000). We agree and, therefore, reverse and remand with directions that appellant be discharged. We affirm as to appellant’s second issue on appeal without further discussion.

By information, the State charged appellant with one count of possession of cocaine, (count one), one count of possession of less than twenty grams of cannabis (count two), and one count of obstructing a police officer without violence (count three). Appellant subsequently filed a motion to suppress the contraband found ■within his residence as a result of the officers’ execution of the search warrant. Deputy O’Leary testified at the hearing that appellant had been suspected of selling crack cocaine -from his single residence. O’Leary further testified that, after securing a search warrant, he and the other officers executed the warrant at approximately 5:30 p.m. that same day.

According to O’Leary, the officers knocked on appellant’s back door, announced their presence only once, and, upon receiving no response, waited “several seconds” before forcibly entering appellant’s residence. When questioned by the State as to the reason for making such a quick entry on a case such as this, O’Leary replied that on this particular case, the officers were not sure whether weapons were involved or whether evidence would be destroyed. O’Leary stated, “They do get rid of the dope once they know — once we knock, they usually get rid of the dope

On cross-examination, O’Leary testified that his Affidavit for Search Warrant set forth that the confidential informant observed “a substantial quantity of cocaine,” although, according to O’Leary, the informant may have stated that there was a truckload of cocaine in the residence. The affidavit made no mention of possible weapons or of the possibility that the suspected contraband would be destroyed as O’Leary had no knowledge of such at that time either. O’Leary further testified that, prior to their forcible entry, the officers did not hear any noise coming from inside the residence. Nor did the officers know, after knocking and announcing, whether weapons were involved. Upon their forcible entry, the officers found appellant located on his bed attempting to retrieve the contraband that was beside the bed.

Alfred Smith, another officer, testified that he was last in the group of three officers headed towards the back door of appellant’s residence. According to Smith, by the time he made it to the back door, entry was already being made. Smith estimated that he was approximately five to ten seconds and ten to fifteen feet behind the other officers.

The trial court subsequently denied appellant’s motion to suppress without stating any grounds in support of its ruling. During appellant’s trial, the trial court set forth that appellant retained his right to appeal the court’s ruling as to his motion. Following ■ jury deliberations, the jury found appellant guilty as to counts one and two and not guilty as to count three. Thereafter, the trial court sentenced appellant to five years’ imprisonment as to count one and one year’s imprisonment as to count two with credit for time served, the sentences to run concurrently. This appeal followed.

The Fourth Amendment to the United States Constitution and article I, section 12 of the Florida Constitution guarantee the people of this nation the right to be secure in their homes from unreasonable searches and seizures. The common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 930, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The knock and announce rule has been recognized as a part of the common law of Florida. Wilson v. State, 673 So.2d 505, 508 (Fla. 1st DCA 1996). The Florida Legislature codified the knock and announce rule in section 933.09, which provides as follows:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Section 933.09 imposes two requirements. First, law enforcement must provide due notice of their authority and purpose. Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001). The statute also requires that law enforcement be refused admittance, which can be express or implied. Id. A lack of response is deemed a refusal. Id. Regardless of whether the ultimate refusal will be express or implied, section 933.09 and case law interpreting such require that some quantity of time, sufficient under the particular circumstances, be permitted for an occupant to respond. Id.

The policy underlying section 933.09 “derives from the sentiment that there ‘is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. That is why the law protects its entrance so rigidly.’ ” State v. Bamber, 630 So.2d 1048, 1053 (Fla.1994) (quoting Benefield v. State, 160 So.2d 706, 709 (Fla.1964)). Where officers knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09. Holloway v. State, 718 So.2d 1281, 1282 (Fla. 2d DCA 1998). The trial court’s decision on the issue of due notice is a decision of fact that is binding on this Court if it is supported by competent, substantial evidence. See State v. Robinson, 565 So.2d 730, 732 (Fla. 2d DCA 1990) (citation omitted).

In the instant case, Deputy O’Leary testified that several seconds elapsed between the officers’ knock and announce and their forcible entry into appellant’s residence. While O’Leary did not elaborate upon this “several second” period, Officer Smith testified that he was five to ten seconds and ten to fifteen feet behind the other officers. By the time Smith reached the back door of appellant’s residence, entry was already being made. During oral argument, the State conceded that it was more likely that some length of time closer to five seconds elapsed between the officers’ knock and announce and their forcible entry.

Moreover, O’Leary testified on direct examination that he was not sure whether weapons were involved or whether the evidence would be destroyed. On cross-examination, he similarly testified that the officers did not know, after knocking and announcing, whether weapons were involved. O’Leary’s affidavit did not mention the possibility of weapons because he had no knowledge of such at that time either.

Based upon these circumstances, we hold that the officers’ execution of the search warrant violated the knock and announce rule in section 933.09. While the quantity of time sufficient to provide a suspect with due notice will vary depending upon the particular circumstances at issue, the facts of this case do not establish that the quantity of time between the officers’ knock and announce and their hasty entry was sufficient to permit appellant to respond. See West v. United States, 710 A.2d 866, 869 (D.C.Cir.1998) (holding that the officers’ five-second wait between knocking and announcing their presence and their forcible entry at approximately 9:40 p.m. was insufficient, as a matter of law, as the time was simply too short to warrant a conclusion that the occupants had deliberately refused the police entry); United States v. Joyner, No. 96-CR-20063, 1997 WL 129181, at *4 (C.D.Ill. Mar.5, 1997) (holding that the officers’ five- to six-second pause between their knock and announce and their forcible entry at approximately 10:15 p.m. was not a reasonable time to conclude that the suspect was denying them entry as the government produced no evidence that the suspect was dangerous or possessed firearms or that he was likely to dispose of the contraband); Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220, 223 (1992) (holding that a five- to ten-second delay between the officers’ knocking and announcing and their forcible entry at 5:30 p.m. was not a reasonable time for an occupant to respond). Cf. United States v. Lucht, 18 F.3d 541, 550 (8th Cir.1994) (holding that the officers’ vulnerable tactical circumstances, their knowledge of the suspect’s extensive criminal record and his current parole status, and their suspicion that the suspect had consummated a drug transaction on the previous day excused their six- to eight-second pause between their knock and announce and their forcible entry into the suspect’s residence at 7:00 a.m.); United States v. Markling, 7 F.3d 1309, 1318 (7th Cir.1993) (holding that the officers’ seven-second wait between their knock and announce and their forcible entry at approximately 6:00 p.m. was sufficient because there was no noise coming from the suspect’s small motel room and because the officers had been informed by two women who had just bought cocaine from the suspect that he was likely to destroy the contraband).

Because we conclude that the officers in this case violated section 933.09 by failing to provide appellant with due notice before forcibly entering his residence, we must also determine whether any exigent circumstances existed to excuse the officers’ actions. The supreme court has recognized four exceptions to the knock and announce rule: (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose; or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Benefield, 160 So.2d at 710. This Court must presume that a search that does not comply with the knock and announce rule is invalid, unless the State proves that the officers’ conduct comes within one of these recognized exceptions. See Holloway, 718 So.2d at 1282 (citations omitted).

With regard to the .destruction of evidence and officer peril exceptions, the two exceptions relied upon by the State, the supreme court has held that an officer’s belief of the immediate destruction of evidence must be based upon particular circumstances existing at the time of entry and must be grounded on something more than his or her generalized knowledge as a police officer. See Bamber, 630 So.2d at 1055. In holding such, the supreme court rejected the State’s argument that a “blanket approach” should apply as an exception to section 933.09 and should excuse forcible entry if police generally believed that a small quantity of drugs were present in a residence with standard plumbing. Id. at 1053; see also Craft v. State, 638 So.2d 1011, 1013 (Fla. 2d DCA 1994) (holding that an officer’s belief that he or she may be in peril if the knock and announce procedure is followed should be based on particular circumstances existing at the time of entry and should be based on something more than generalized knowledge that a defendant has been known to carry a weapon at some time in the past).

As we previously stated, O’Leary testified that he was not sure whether appellant would destroy the evidence or whether appellant possessed any weapons. As O’Leary’s testimony demonstrates, the officers’ actions resulted from their generalized belief that individuals in possession of contraband will “usually get rid” of such. However, this generalized belief is not sufficient to excuse the officers’ violation of section 933.09. See Bamber, 630 So.2d at 1055. Therefore, because the officers had no particularized belief that appellant was likely to destroy the contraband or that he was likely to be armed, no exigent circumstances existed to excuse the officers’ violation of section 933.09.

The State also contends on appeal that if the officers’ actions violated section 933.09 and were not excused through exigent circumstances, suppression of the contraband would be unnecessary as the evidence would have been inevitably discovered. However, we conclude that the inevitable discovery doctrine is not applicable in cases in which section 933.09 is violated, as the application of the doctrine to evidence seized in violation of the knock and announce rule would render section 933.09 and the policy behind the rule meaningless. In doing so, we agree with the majority of other jurisdictions that have addressed this issue. See State v. Robinson, 565 So.2d 730, 733 (Fla. 2d DCA 1990) (noting that if the rule of inevitable discovery was applied to all cases in which primary evidence was seized in violation of the knock and announce requirement, the rule would emasculate the requirement); see also United States v. Shugart, 889 F.Supp. 963, 977 (E.D.Tex.1995) (noting that the application of the inevitable discovery doctrine to the evidence seized after a clear violation of the knock and announce requirement would completely eviscerate the fundamental privacy and safety interests that the requirement seeks to secure); Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648, 657 (1999) (rejecting the State’s argument that the exclusion of evidence seized in violation of the knock and announce rule was not appropriate as the evidence would have been inevitably discovered); District of Columbia v. Mancouso, 778 A.2d 270, 275 n. 10 (D.C.2001) (declining to apply the inevitable discovery doctrine to a suppression case involving a violation of the knock and announce rule); People v. Tate, 323 Ill.App.3d 905, 257 Ill.Dec. 152, 753 N.E.2d 347, 350 (2001) (concluding that the inevitable discovery exception did not apply where the knock and announce rule required the suppression of the seized evidence); Carroll v. State, 149 Md.App. 598, 817 A.2d 927, 937-38 (Md.2003) (holding that the application of the inevitable discovery exception would permit the exception to swallow the exclusionary rule and “disembowel” the Fourth Amendment); State v. Taylor, 135 Ohio App.3d 182, 733 N.E.2d 310, 312 (1999) (holding that the inevitable discovery doctrine did not apply where evidence was gathered as a result of a violation of the knock and announce rule); Commonwealth v. Rudisill, 424 Pa.Super. 313, 622 A.2d 397, 400 n. 7 (1993) (rejecting the argument that the inevitable discovery doctrine may be applied to save evidence from suppression as a result of a violation of the knock and announce rule). As such, the trial court’s order denying appellant’s motion to suppress is not supported by competent, substantial evidence. Accordingly, because the officers violated section 933.09 and because no exigent circumstances existed at the time of entry to excuse the violation, we reverse and remand with directions that appellant be discharged.

REVERSED and REMANDED with directions.

VAN NORTWICK and HAWKES, JJ., concur.


text:
    MIED, INC., J.E. Carter, Jr., Anne S. Carter, Joe E. Cowart and Edith Cowart, Appellants, v. SUMMIT HEALTHCARE INC., Appellee.
    No. 4D02-3042.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2003.
    Michael Bowlus and Katherine Schnauss of Ford, Jeter, Bowlus, Duss, Morgan, Kenney & Safer, P.A., Jacksonville, for appellants.
    Steven J. Gutter of Kahn & Gutter, Plantation, for appellee.
   KLEIN, J.

The issue in this case is whether judgment creditors of an insolvent corporation, who are also insiders, are fraudulent transferees as to payments made on those judgments, under the Uniform Fraudulent Transfer Act. We conclude that they are and affirm.

Appellants J.E. Carter and Joe Cowart were officers and directors of Southlake Nursing and Rehabilitation Center, which was insolvent. They obtained substantial judgments, uncontested, against Southlake in 1996, for loans they had allegedly made to Southlake.

In 1999 Southlake sold its assets to Mied, Inc., which was owned and controlled by Carter, for $11.7 million, but Mied paid only $9.8 million to Southlake. As part of the transaction Carter and Co-wart assigned their judgments against Southlake to Mied, which executed satisfactions of the judgments. From the proceeds of the closing, Southlake paid Carter $68,192 and Cowart $39,716 as interest payments. At the time these payments were made, appellee Summit Healthcare, Inc. was a creditor of Southlake, which was insolvent.

After obtaining a judgment against Southlake, which was uncollectible, Summit commenced these supplementary proceedings against Mied, Carter and Cowart, alleging fraudulent transfers under Chapter 726, Florida Statutes (2002). The trial court found that the interest payments were fraudulent transfers and entered a judgment for Summit against Carter and Cowart, which is the subject of this appeal.

Appellants argue that, because they were judgment creditors of South-lake, and these judgment liens had to be satisfied before Southlake could be sold to Mied, they were as a matter of law not fraudulent transfers. What this argument ignores is section 726.106(2) of our Fraudulent Transfer Act, which provides:

A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

The payments to Carter and Co-wart satisfy all of the requirements of section 726.106(2). It is undisputed that Carter and Cowart were insiders, that Summit’s claim arose before the payments were made to Carter and Cowart, and that Carter and Cowart knew that Southlake was insolvent at the time of the transfers. Their argument that this statute does not apply to insiders who have judgments against the insolvent transferor is without merit. The statute does not distinguish between creditors who hold judgments and those who do not. If insiders could avoid section 726.106 by obtaining consent judgments, as these appellants did, it would take all of the teeth out of it. We have considered the other issues raised and find them to be without merit. Affirmed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    STATE of Florida, Appellant, v. Lawrence DAVIS and Naeem John, Appellees.
    Nos. 4D02-5038, 4D02-4892.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Clayton R. Kaeiser and Rayfield McGhee, Miami, for appellees.
   PER CURIAM.

The state appeals non-final orders of the trial court granting co-defendants’, Lawrence Davis’s and Naeem John’s, joint motion to suppress evidence because of an illegal investigatory stop. We have jurisdiction. Fla. R.Crim. P. 9.140(c)(1)(B).

Defendants, Davis and John, were charged with robbery with a firearm. They moved to suppress evidence seized pursuant to an investigatory stop alleging various grounds. The trial court granted the suppression motion concluding the defendants were stopped on a mere hunch. The state appeals. Because the totality of the circumstances established a reasonable suspicion that the suspects had engaged in criminal activity, we REVERSE.

Captain McCann, an off-duty police officer, was walking his dog at his apartment complex on the day of the offense. Although it was early evening, the area was well lit with street lights. McCann heard numerous police sirens approaching and turned on his hand-held police radio to find out what was going on. McCann learned a robbery had just occurred at a bank one block north of his apartment complex. The BOLO described the suspects as two black or hispanic males, ages 18-20, about 5'9" in height with thin builds, armed with black handguns, wearing hooded sweatshirts. McCann then saw a hispanic or black male walk quickly by him only a few steps away. The man briskly walked through the parking lot and climbed the fence into an adjacent apartment complex. The man was wearing a hooded sweatshirt and had come from the general direction of the reported robbery. McCann radioed police and reported his observations, suggesting that police adjust their perimeter.

Officer Kroger responded to the BOLO and drove to an exit gate of the apartment complex where McCann reported the suspect jumped. Kroger arrived within four to five minutes to establish a perimeter. The complex was gated and three to four blocks from the location of the robbery. Kroger was on the lookout for subjects matching the description provided in the BOLO. Kroger was aware that McCann reported seeing a man matching the description of the suspects jump the wall into the complex. With the police lights of his vehicle on, Kroger watched cars leave the complex. Kroger saw two black males in a car who appeared nervous and were sweating profusely despite 70 degree November weather. Kroger observed that the occupants appeared to be the same height, build, and age as the suspects. Based on his observations, Kroger initiated an investigatory stop. A search of the vehicle produced two black handguns, hooded sweatshirts consistent with the victim’s description, and a wallet belonging to the victim. Captain McCann arrived later and identified John as the man he saw jump the wall.

The trial court granted the defense motion to suppress the evidence seized and statements made by defendants finding the stop was not based on an articulable, well-founded suspicion but rather on a mere hunch.

A police officer may, in appropriate circumstances, stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause for an arrest, as long as the officer has reasonable suspicion that the person is engaged in criminal activity. See Terry v. Ohio, 892 U.S. 1, 19-23, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968); § 901.151(2) Fla. Stat. (2002).

An officer must have an articulable suspicion (a reasonable or founded suspicion), that a person has committed, is committing, or is about to commit a crime before the officer can lawfully detain the person. A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience. State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).

To establish a well-founded suspicion to stop a vehicle pursuant to a BOLO, a police officer should consider several factors, including: 1) the length of time since the offense; 2) the distance from the offense; 3) the route of flight; 4) the specificity of the description of the vehicle and its occupants; and 5) the source of the BOLO information. State v. Wise, 603 So.2d 61 (Fla. 2d DCA 1992).

A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be reasonable in light of the facts known to the officer at the time. Grant v. State, 718 So.2d 238, 239-40 (Fla. 2d DCA 1998).

In this case, the totality of the circumstances, when interpreted in light of the officer’s knowledge, establishes a reasonable suspicion justifying the stop. Kroger arrived at the gate of the apartment complex four to five minutes after receiving the BOLO. The crime itself had occurred only minutes earlier and the complex was geographically close to the scene of the crime, only three to four blocks away. Although the description provided in the BOLO was somewhat general, either black or hispanic males about 5'9" with thin builds wearing hooded sweatshirts, Kroger’s suspicion was heightened by the report provided by Captain McCann. Kroger was monitoring this location because McCann, a reliable source, had reported seeing a suspicious person, matching the description of the suspects, jump the wall into the complex. Kroger knew this person might exit the complex through a mechanical gate such as the one he was monitoring. The avenues of escape were limited and circumscribed by a police perimeter. The men Kroger detained in the perimeter matched the description provided in the BOLO, acted nervous upon seeing Kroger, and were sweating profusely. Kroger knew the robbers fled the crime on foot and, at least one of them, was seen jumping fences. Sweating was consistent with the men having recently engaged in this kind of activity or with extreme nervousness.

Kroger’s suspicion was more than a hunch. In light of the circumstances and what Kroger knew about the armed robbers, Kroger’s investigatory stop was justified by a reasonable suspicion. The temporal and geographic proximity of the stop to the crime, the matching description of the men to the BOLO, the presence of the defendants in the police perimeter, the limited avenues of escape for the suspects, coupled with the defendants’ appearance and behavior consistent with flight from the robbery are articulable facts supporting a founded suspicion for the stop. Critical to this finding is Captain McCann’s report about the location of the suspicious individual matching the description provided in the BOLO.

We do not decide, nor do we express any opinion, as to the other issues raised in the joint motion to suppress regarding the validity of the continued detention, search, or arrest. The trial court did not address these issues as it found the initial stop to be improper. Resolution of the remaining issues involves factual questions and requires credibility determinations which should be first addressed by the trial court. Accordingly, the order granting the joint motion to suppress based on the illegality of the initial stop is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

POLEN, FARMER and GROSS, JJ., concur.


author: CASANUEVA, Judge.

text:
    Robert Christopher JEFFERIES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1026.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.

      James Marion Moorman, Public Defender, and Judith Ellis, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Robert Christopher Jefferies challenges his conviction for felony battery and the resulting sentence. We reverse because we find that the trial court erred in instructing the jury on a lesser-included offense.

The facts of this case are essentially undisputed. Outside a convenience store shortly after 6 a.m. in April 2000, the victim, with whom Mr. Jefferies was acquainted, had a confrontation with Mr. Jef-feries’ companions and began arguing with Mr. Jefferies as he returned to his car with his purchases. The victim pushed him, and Mr. Jefferies retaliated by striking the victim three times with his fist, causing him to fall to the ground; some witnesses said he also kicked the victim after he fell, but Mr. Jefferies vehemently denied this. The victim died within minutes, but Mr. Jefferies was unaware of this as he and his friends had already continued on their way. Later that morning, after voluntarily presenting himself to law enforcement when he heard the news of the death, Mr. Jefferies was interviewed and gave a statement outlining these facts. The State charged him with manslaughter by culpable negligence using the following language: “by his own act or culpable negligence, and without lawful justification or excuse, did kill a human being, [the victim], by striking and beating the [victim] in violation of Section 782.07, Florida Statutes.... ” The jury returned a verdict of guilty of felony battery as a lesser-included offense of manslaughter by culpable negligence.

Mr. Jefferies contends that the jury should not have been instructed on felony battery as a permissive lesser-included offense. He does not claim that there was insufficient evidence presented to prove the crime of felony battery. Indeed, he cannot do so, based on the undisputed facts and his own statement. Rather, he argues that all the elements of felony battery are not subsumed within the elements of manslaughter, so that felony battery is precluded from being charged as a lesser-included offense of manslaughter by culpable negligence. We agree to the extent that felony battery is not a category I lesser-included offense of manslaughter by culpable negligence, although it may be a permissive or category II lesser-included offense depending on the allegations contained in the charging document and the proof adduced at trial. “The law requires that an instruction be given for any lesser offense all the elements of which are alleged in the accusatory pleadings and supported by the evidence adduced at trial.” State v. Weller, 590 So.2d 923, 926 (Fla.1991); Epps v. State, 728 So.2d 761, 762 (Fla. 2d DCA 1999). Thus, the information must allege the essential elements of the crime of felony battery. Farley v. State, 740 So.2d 5, 6 (Fla. 1st DCA 1999). We reverse because we find that the charging document did not include an essential element of the crime of felony battery, namely, an intentional striking.

Manslaughter by culpable negligence is the third of the three possible ways manslaughter can be charged in Florida. The other two possible manslaughter charges are intentionally causing the death of the victim or intentionally procuring the death of the victim, neither of which the State chose to charge based on the facts of Mr. Jefferies’ case. See Fla. Std. Jury Instr. (Crim.) Manslaughter. At Mr. Jefferies’ trial there was lengthy discussion on several occasions between the court, the prosecutor, and defense counsel about the proper way to charge the jury on the lesser-includeds. These discussions contrasted the lack of intent for the crime of manslaughter by culpable negligence with the specific intent required for felony battery.

We agree with the observation of Mr. Jefferies’ trial counsel that the intent element for felony battery is inconsistent and mutually exclusive with the negligence aspect of manslaughter by culpable negligence. The two elements that constitute manslaughter by culpable negligence are (1) the fact of the death and (2) a causative link between the death and the culpable negligence of the defendant. State v. Richards, 639 So.2d 680 (Fla. 2d DCA 1994). In Looney v. State, 756 So.2d 239, 240 (Fla. 2d DCA 2000), we noted that the Florida Supreme Court distinguished manslaughter by act or procurement from manslaughter by culpable negligence. Manslaughter by act or procurement requires an intent to cause death while manslaughter by culpable negligence does not. The supreme court in Taylor v. State, 444 So.2d 931, 934 (Fla.1983), noted that this difference is rooted in the common law distinction between voluntary manslaughter and involuntary manslaughter. Thus, no offense that contains an intentional element can be considered a category I lesser-included of manslaughter by culpable negligence, although that remains a possibility for manslaughter by act or procurement.

In comparison, the elements of felony battery are (1) an actual and intentional touch or striking of the victim against the victim’s will that (2) caused great bodily harm, permanent disability, or permanent disfigurement. Fla. Std. Jury Instr. (Crim.) Felony Battery. The prosecutor argued to the court during the discussions about the proper charge to the jury, and defense counsel generally agreed, that in 1997 the legislature enacted section 784.041, defining the crime of felony battery, to fill the gap between simple battery and aggravated battery. Mr. Jefferies’ trial counsel correctly observed that the State could have charged him, in the alternative, with a crime of negligence (manslaughter by culpable negligence) or an intentional crime (felony battery) with an unintentional death. By doing so, the jury would have had all possible choices before it that corresponded with the facts of the case and could have decided Mr. Jefferies’ intent appropriately. Thus, the State could have covered all bases because each count of an information stands on its own. Pea v. State, 737 So.2d 1162, 1163 (Fla. 5th DCA 1999).

The language of the charging document in Mr. Jefferies’ case was deficient in supporting the intentional crime of felony battery. Cf. Looney, 756 So.2d at 240 (holding that an information that charged manslaughter because the defendant “did unlawfully, by his intentional act, kill [the victim] by striking her and causing her to receive wounds or injuries which resulted in her death,” was ambiguous so as to require reversal; (the intent element was unclear). Based on Mr. Jefferies’ statements to law enforcement, the State knew that he admitted to the specific intent crime of battery. Felony battery is clearly a species of the specific intent crime of battery (the intent to strike), but with resulting and unintended great bodily harm, as distinguished from aggravated battery, in which the resulting harm is intended, and as distinguished from manslaughter by culpable negligence, which is not an intentional crime at all. Because this court has recognized that in these instances it is fundamental error to instruct the jury on a crime not charged in the information, the resulting verdict is a nullity. See Wise v. State, 833 So.2d 882, 883 (Fla. 2d DCA 2003) (citing O’Bryan v. State, 692 So.2d 290 (Fla. 1st DCA 1997).

Because our disposition is not based on the sufficiency of the evidence but on an error in the proceedings, we reverse and remand for a new trial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding that where reversal is not based on insufficient evidence retrial does not violate the Double Jeopardy Clause). As the jury has acquitted Mr. Jefferies of manslaughter at his first trial, the State may not, on remand, seek to retry Mr. Jefferies on that charge.

Reversed and remanded.

FULMER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

      . Although mooted by our disposition in reversing the conviction, the State properly conceded the second issue, that victim death points were wrongly added to the defendant’s sentencing guidelines scoresheet. See Key v. State, 779 So.2d 525 (Fla. 2d DCA 2000).

      . § 784.041, Fla. Stat. (1999).

      . The standard jury instruction on manslaughter defines culpable negligence in the following manner:
      Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

        The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
      Fla. Std. Jury Instr. (Crim.) Manslaughter.

      . Although death is not the generally expected outcome of a crime of battery, there can be no doubt that if death does result, it fulfills the element of "great bodily harm.” See Eversley v. State, 748 So.2d 963, 970 (Fla.1999) ("We find that the trial court erred in reducing the felony child abuse conviction. The fact that the baby died is adequate proof of the 'great bodily harm’ element.”).

      . Ch. 97-183, § 1, at 3453, Laws of Fla.


text:
    Vincent JOHNSON, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D03-1900.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Vincent Johnson, pro se, appellant.
    No appearance for appellee;
   PER CURIAM.

DISMISSED. See Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001); Polilla v. State, 776 So.2d 1027 (Fla. 1st DCA 2001).

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Victor BOYD, Appellant, v. CARYVILLE DEPARTMENT OF TRANSPORTATION and Eugene Pippin, Appellee.
    No. 1D03-1058.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Appellant, pro se.
    Pamela S. Leslie and Gregory G. Costas, Tallahassee, for Appellee Department of Transportation.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 12, 2003, the Court has determined that the order on appeal is not a final appealable order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BOOTH, BENTON and POLSTON, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Petitioner, v. Thomas TREWORGY, Richard Kresge, Gail Meadows and Jeffrey Davis, Respondents.
    No. 3D03-626.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.

      Charles J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for petitioner.
    Horan, Horan & Wallace and Edward W. Horan, Key West, for respondents.
    Before SCHWARTZ, C.J., and GODERICH, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

The respondents were defendants in the Monroe county court who were charged with harvesting and possessing “short” spiny lobsters — “undersized crawfish tails” — in violation of Florida Administrative Code 68B-24.0003(1). On this application for certiorari, the state challenges the circuit court affirmance of a county court order which dismissed the action on the ground that the provision was unconstitutional. We quash the affirmance and remand with directions to reverse the county court order.

The provision of the code in question, which was promulgated by the Fish and Wildlife Conservation Commission, deals with the unlawful taking and possession of undersized “spiny lobster.” In reaching its decision, the county court specifically found, and the respondents do not argue otherwise, that the commission regulation (which is treated as a statute, see Caribbean Conservation Corp. v. Florida Fish & Wildlife Conservation Commiss’n, 838 So.2d 492 (Fla.2003)), is not itself invalid on its face. It concluded, however, that an invalidity was established because of an alleged “facial conflict” between 68B-24.003(1) and 68B-24.003(5), regarding the permissible size of the crustacean’s carapace and tail respectively which could, in some hypothetical situation not involved in this case, result in an “unconstitutional” application of the rule. For numerous reasons and on several levels, we disagree.

We conclude:

1. First, without detailing the intricacies of the appropriate measurements of the parts of the crustacean regulated by the rule, we do not find that there is any inconsistency whatever between the two portions cited. Any alleged confusion is easily resolved simply by the taker’s measuring the carapace in the water and the tail after the lobster is taken to the boat or dock. See Fla. Admin. Code R. 68B-24.002(4). If either measurement violates the code, the lobster should not be taken or may and should be released into the water without criminal liability as provided by section 68B-24.002(4). See also Tingley v. Brown, 380 So.2d 1289 (Fla.1980).

2. Even if one existed, an alleged conflict between two provisions of the same statute does not give rise to an issue of constitutionality, but rather of statutory interpretation (under which, applying the rule of lenity, any ambiguity would be resolved in favor of the defendant).

3. Even if a claim of unconstitutionality could be properly entertained on a hypothetical set of facts, the statute itself may not be invalidated in actual situations (like this one) in which the constitutionality of its application is not at all involved. See Virginia v. Hicks, — U.S. -, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003); 10 Fla. Jur.2d Constitutional Law § 91, cases collected at n. 47 (1997).

4. Finally, again assuming contrary to our previous conclusions that the issue may be involved, the respondents, who are admittedly not affected by the alleged invalidity, have no standing to raise the claim. See 10 Fla.Jur.2d Constitutional Law § 74 (1997).

For these reasons, the order of affir-mance is quashed and the cause remanded to the circuit court with directions to reverse the county court order on appeal there and to order that the case proceed to trial.

Certiorari granted.

      . Appellees were found to be in possession of 186 undersized crawfish tails each having a tail measurement of less than 5lk inches. Each was charged with violations of Florida Administrative Code 68B-24.003(1) which reads:
      (1) No person shall harvest or possess any spiny lobster with a carapace measurement of 3 inches or less or, if the tail is separated from the body, a tail measurement less than 5 xk inches not including any protruding muscle tissue ...
      Appellees successfully argued to the trial judge that the above-cited section regarding minimum size limits was internally inconsistent and was therefore unconstitutional and the trial court dismissed the charges against them.
      For the reasons stated in Appellee’s Brief this court affirms the trial court's dismissal of the charges.
      When harvested each lobster had a carapace measurement of over 3 inches. Upon arrival at the dock of their home the lobsters were taken out of the live well and their heads separated from the tails. The tails were placed in freezer bags and placed in the freezer. Appellee Treworgy then drove out in the bay and dumped the heads.
      Upon arrival back at the dock Fish and Wildlife officers determined of the 308 craw-fish, 186 had tails of less than S'k inches and Appellees were charged.
      This court agrees with the proposition that the statute, if interpreted as requested by Appellant, would and does create an internal inconsistency which can make innocent conduct criminal conduct, [e.s.]
      Additionally, from a plain reading of 68-B24.003(1) and its companion sections it is not clear that two separate measurements of the animal are required in order to harvest. The disjunctive word "or” does appear in this section between giving the requisite carapace measurement and the 5 {4 inch tail measurement.
      It is also not all together clear from a reading of this section whether if a given lobster has one of the requisite measurements but not the other whether it may still be legally harvested.
      It appears that while measuring devices for the carapace are abundantly available for purchase in various dive shops and sporting good stores, devices to measure the 5Í4 inch tail are not thus indicating the acceptable custom of measuring the carapace in order to determine harvestability.
      Since the spiny lobster do evidently exist in nature which have the requisite 3 plus inch carapace measurement but have tails less than S'k inches, innocent individuals may be arrested for unknowing violations upon wringing the tails once off of the water. Ciccarelli v. City of Key West, (Fla. 3d DCA 1975) 321 So.2d 472, and cases cited therein.
      ... AFFIRMED.

      . The Court finds, as a matter of law, that the language of 68B F.A.C. § 24.003, (1), on its face, provides no basis for constitutional invalidity. It is, in fact, clear on its face and provides the Defendants with no grounds to argue for dismissal.

      . When a person has done all he or she can to abide by the law, and has complied with the law in taking the lobster whose carapace measurement is greater than 3" from the waters of the State of Florida, transporting them in whole condition to the shore and the simple act of wringing the tail from the head then makes that personal [sic] criminal, the courts have an affirmative duty to act and strike down such a regulation. To hold otherwise would mean that a cook could go to a seafood market, purchase a crawfish legally taken by a commercial harvester in whole condition (i.e. having a carapace measurement in excess of 3"), take the crawfish home, boil the craw-fish for her family, and at the instant she separates the tail from the head (and the tail is less than 5j£") she has become a criminal. There is no adequate notice in this case to the housewife of any criminal conduct; she has purchased a legal seafood product from a retailer, grocery, etc., and has done nothing more than take it home and prepare it for herself or her family. Therefore, the Court further finds the tail measurement provision of 68B F.A.C. § 24.003(1), because of its conflict with the subsection (5) to be, unconstitutional on its face.

      . 68B-24.002(4). Definitions.

      (4) “Harvest” means the catching or taking of spiny lobster by any means whatsoever, followed by a reduction of such spiny lobster to possession. Spiny lobster that are caught but immediately returned to the water free, alive and unharmed are not harvested. In addition, temporary possession of a spiny lobster for the purpose of measuring it to determine compliance with the minimum size requirements of this chapter shall not constitute harvesting such lobster, provided that it is measured immediately after taking, and immediately returned to the water free, alive and unharmed if undersized.


text:
    Marion SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-475.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Marion Smith, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marion Smith (“Appellant”) seeks review of an order denying his Rule 3.800(a) Motion to Correct Illegal Sentence wherein he requested 270 days of jail credit for the time he spent in the Palm Beach County Sheriffs Drug Farm program. We affirm.

Appellant seeks our determination that the drug farm is the functional equivalent of a jail for all intents and purposes and asks that he be awarded an additional jail credit. His claim raises questions of fact as to the coerciveness and restrictiveness of the program. Appellant’s motion was properly denied because his claim requires an evidentiary hearing and must be raised in a Rule 3.850 motion. See Whitehead v. State, 677 So.2d 40, 41 (Fla. 4th DCA 1996) (affirming order revoking probation but remanding for an evidentiary hearing to determine whether or not appellant’s service in this drug farm sheriffs facility was sufficiently restrictive to be deemed the equivalent of incarceration). See also Kamerman v. State, 765 So.2d 63 (Fla. 4th DCA 2000) (reversing sworn motion for jail credit for record attachments showing appellant is not entitled to relief or for evidentiary hearing determining whether Turning Point program qualifies appellant for jail time credit); and Columbro v. State, 777 So.2d 1208, 1209 (Fla. 5th DCA 2001) (affirming order denying Rule 3.800 claim which alleged that time served in a drug treatment program was as coercive and restrictive as jail because claim raised factual questions requiring an evidentiary hearing.)

This court makes no determination as to whether a prisoner is entitled to jail time credit for time served in the drug farm. Williams v. State, 711 So.2d 1369 (Fla. 4th DCA 1998); Robinson v. State, 689 So.2d 1147, 1149 n. 1 (Fla. 4th DCA 1997).

Our affirmance, however, is without prejudice for Appellant to raise this claim in a timely filed rule 3.850 motion for post-conviction relief.

FARMER, C.J., GUNTHER and POLEN, JJ., concur.


text:
    Robert KIRCHGESSNER and Janette Kirchgessner, Appellant, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-775.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2003.
    Robert W. and Janette L. Kirchgessner, Orlando, Pro Se.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, for Appel-lee.
   PER CURIAM.

Robert and Janette Kirchgessner appeal a final order issued by the Florida Department of Agriculture and Consumer Services, advising them that their citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order based on Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. Id. at 1050. The stay entered by the court is lifted.

AFFIRMED.

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Johnnie BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3410.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2003.
    Thomas R. Mott, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Parker v. State, 845 So.2d 242 (Fla. 5th DCA 2003).

PETERSON, THOMPSON and TORPY, JJ., concur.