author: COPE, J.

text:
    M-I LLC, Appellant, v. UTILITY DIRECTIONAL DRILLING, INC., Appellee.
    No. 3D03-1284.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Welbaum, Guernsey, Hingston Green-leaf Gregory Black & Rune, LLP, and Robert A. Hingston, for appellant.
    Timothy H. Crutchfield, for appellee.
    Before COPE, LEVY and GREEN, JJ.
   COPE, J.

M-I LLC appeals a final order denying its motion to enforce a settlement agreement. We conclude that the settlement agreement should have been enforced, and accordingly reverse the order now under review.

The question presented to the trial court was whether a company named Parchem, Inc. was an intended beneficiary of a settlement agreement. Appellant M-I bought the assets of Parchem and is Par-chem’s successor in interest.

The settlement agreement arose out of construction litigation between Ric-Man International, Inc., the City of Miami, and appellee Utility Directional Drilling, Inc. (“UDDI”). Ric-Man was the prime contractor to the City of Miami for installation of the Watson Island sanitary sewers. UDDI was a subcontractor on the job. UDDI in turn subcontracted its work to various subcontractors, including Parchem.

The settlement agreement provided that a particular sum of money would be held by UDDI’s counsel in a

dedicated trust account and shall not be released to UDDI by that trust account (1) unless and until UDDI provides evidence reasonably satisfactory to Ric-Man of full satisfaction of each and every claim(s) by all subcontractors owed by UDDI for services performed in relation to the Project, including but not limited to Centerline Guidance and Parchem, Inc. and (2) unless and until each of those subcontractors have provided original executed general releases of all claims related to the Project and related to Ric-Man and UDDI and the City in a form which Ric-Man shall provide to UDDI.

(Emphasis added).

Under the settlement agreement, once the subcontractors have been paid, UDDI is allowed to keep the rest of the money in the trust account. Thus, if UDDI can avoid paying its subcontractors, UDDI will be able to keep more money for itself.

M-I (as successor to Parchem) demanded payment for the services Parchem had rendered to UDDI. UDDI refused to pay, arguing that Parchem was not an intended beneficiary of the settlement agreement. The trial court denied M-I’s claim for that reason, and M-I has appealed.

The Florida Supreme Court has said:
The rule in this state is that when a contract shows that it was intended to be for the benefit of a third party, such third party may ... sue thereon. In such cases the test is, not that the prom-isee is liable to the third person, or that there is some privity between them, or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract. It is the undertaking on the part of the promisor, as a consideration to the promisee, to benefit the third person, that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself.
Under the foregoing rule ... where A contracts with B to pay a debt due from C to D, D can maintain an action against A on the contract in the event of A’s default, as much so as if the contract were merely one by which A contracts with B to pay a debt B owes to C.

Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (citations and footnote omitted); see also Technicable Video Sys., Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810, 811 (Fla. 3d DCA 1985).

“Florida law looks to [the] ‘nature or terms of a contract’ to find the parties’ clear or manifest intent that it ‘be for the benefit of a third party.’ ” Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002) (quoting American Surety Co. v. Smith 100 Fla. 1012, 130 So. 440, 441 (1930)).

“[T]he language used in a contract is the best evidence of the intent and meaning of the parties.” Jenne, 814 So.2d at 524 (internal quotation marks and citations omitted).

The settlement agreement in the present case specifically requires UDDI to pay the subcontractors, including Par-chem, which is M-I’s predecessor in interest. The settlement agreement confers a benefit on Parchem. By its terms the contract creates an enforceable right for Parchem to be paid. Parchem is thus an intended beneficiary, and we respectfully disagree with the trial court’s conclusion to the contrary.

UDDI argues that it does not have to pay M-I because the statute of limitations has expired on any lawsuit that M-I might bring against UDDI for breach of the original construction subcontract between UDDI and Parchem. That is not a valid defense here. The settlement agreement is a new contract which binds UDDI to pay the claims of its subcontractors. It is a new contractual undertaking as of the date of the settlement agreement.

UDDI next argues that it was impermissible for M-I to seek enforcement of the settlement agreement by filing a motion for enforcement. UDDI argues that M-I was required to file a new lawsuit. Under the facts of this case, UDDI is incorrect.

When the underlying litigation was settled, the trial court approved the settlement agreement and retained jurisdiction to enforce it. Where that is so, it is permissible to seek enforcement of the settlement agreement by motion. See Buckley Towers Condo., Inc. v. Buchwald, 321 So.2d 628, 629-30 (Fla. 3d DCA 1975), approved, Paulucci v. General Dynamics Corp., 842 So.2d 797 (Fla.2003).

For the stated reasons, the order under review is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-363.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.

      Michael Curry, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Michael Curry appeals from the trial court’s order denying his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.

This is the defendant’s third 3.800 motion raising the same issue. Each time the appellant raised this issue it was denied as conclusively rebutted by the record, and thus the current appeal is procedurally barred as a successive petition.

From a substantive perspective, the record has not changed: the plea colloquy transcript shows Curry accepted a negotiated plea of guilty to two counts of capital sexual battery which resulted in a sentence of thirty years state prison on each count, and one count of burglary of a structure with a resultant life sentence. Curry claims that the sexual batteries were the primary offenses and that as a result he is being imprisoned longer than he legally should. He is incorrect. The most severe offense was made the primary offense at sentencing, that is, the burglary as a first degree felony with a punishment of up to life in prison. Curry has raised this issue several times already, and each time the judge has pointed him to the record, which shows that his sentence is legal. From both a substantive and procedural standpoint the order denying relief is affirmed. See Kelly v. State, 739 So.2d 1164, 1164 (Fla. 5th DCA 1999)(holding that “[s]uccessive 3.800(a) motions re-addressing issues previously considered and rejected on the merits and reviewed on appeal are barred by the doctrine of law of the case”).

Affirmed.


author: STONE, J.

text:
    Jimmy Lee SANFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1661.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Sanford’s convictions of three counts of attempted second-degree murder, shooting into an occupied vehicle, and aggravated fleeing and eluding, but write to address Sanford’s argument that the trial court gave an incorrect jury instruction on aggravated fleeing and eluding.

Following a shooting, a sheriffs deputy heard a BOLO describing Sanford’s car which, at that time, passed him. The deputy followed Sanford and activated his emergency lights. Sanford took a sharp turn and a fourteen minute car chase ensued. When Sanford stopped, there was an exchange of gunfire.

The aggravated fleeing and eluding charge, governed by section 316.1935(2), Florida Statutes (1998), in effect at the time of the crime, provides:

(2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle ... with siren and lights activated commits a felony of the third degree.

Although the trial court gave the standard jury instruction, Sanford contends that the trial court’s instruction to the jury erroneously added an element that was not set forth in subsection (2) of the statute. The court instructed:

[T]o prove the crime of Aggravated Fleeing to Elude a Law Enforcement Officer, the State must prove the following four elements beyond a reasonable doubt:
One, that Jimmy Lee Sanford is operating a motor vehicle upon a street or highway in Florida;
Two, that a duly authorized law enforcement officer ordered to stop and remain stopped;
Jimmy Lee Sanford, knowing he had been directed to stop by a duly authorized law enforcement officer, willfully refused or failed to stop the vehicle in compliance with the order, or having stopped the vehicle, willfully fled in an attempt to elude the officer;
And four, the law enforcement officer was in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated.

(Emphasis added)

Relying on Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), Sanford contends that the addition of the highlighted portion, which is not a stated element of felony fleeing, but is, instead, spelled out in section 316.1935(1) as an element of a misdemeanor, renders the jury instruction erroneous and that, notwithstanding the defense concurring in the given instruction, giving the instruction constitutes fundamental error. See id.

Anderson was a factually unique case. There, like here, the defendant was charged with felony fleeing and eluding under subsection (2). Unlike here, however, the following instruction was given:

... that a duly-authorized law enforcement officer directed Eston Anderson to stop or remained stopped; that Eston Anderson, knowing he had been directed to stop by a duly-authorized law enforcement officer, willfully fled in attempt to allude [sic] the police officer after having stopped....

Id. at 1013.

On the facts in Anderson, we concluded that the jury instruction prejudiced the defendant by adding an extra element in the language “having stopped, flees in an attempt to elude ...” where that language from section 316.1935, subsection (l)(misdemeanor) does not appear in the subsection (2)(felony). Id. There; unlike here, evidence showed that Anderson fled after stopping and being partially restrained and that the arresting officer acknowledged that he did not believe Anderson was trying to flee prior to stopping. Id. In fact, in Anderson, officers followed Anderson as he turned into his driveway, engaged him, and attempted to handcuff him as he exited the car. Id. Anderson then broke free and ran. Id.

On those facts, this court in Anderson opined:

the erroneous instruction could not be deemed harmless as the jury may have believed that Anderson did not intend to flee or elude when he failed to stop, but could reasonably have been misled into believing they could convict on the third-degree felony if Anderson, having stopped, then fled or attempted to elude the law enforcement officer when he broke free and ran to his door, facts which in this case supported his conviction on the companion charge of resisting arrest but would not support a charge of felony fleeing or eluding.

Id. at 1015.

This case does not pose the concerns expressed in Anderson. In that case, Anderson was not charged with violating the statute by his act of fleeing after stopping. Id. Further, the state’s theory in that the case involved a willful failure to stop, not flight in an attempt to elude after having stopped. Id. Contrary to the facts here, this court’s concern was that Anderson risked being convicted of a third-degree felony fleeing and eluding offense solely upon proof of what occurred after he stopped. Id. Under those circumstances, we concluded that the jury instruction was essentially inconsistent, in that Anderson could be convicted of the felony simply by fleeing after stopping, even if the state failed to prove that he was pursued with sirens and flashing lights. Id.

Here, not only is the instruction different, but there is also no risk that the jury was misled by the instruction. Also different is that the present case involved a fourteen minute pursuit that spanned miles, after which Sanford stopped in the middle of the road, exited the car with a shotgun and, refusing to drop the gun after two requests by the officer, opened fire or, according to the defense witnesses, turned and began to walk or run toward his residence with the officer firing at him.

In the present case, even if the jury believed the defense witnesses, there is no risk that the jury would believe that the fleeing and eluding felony was committed solely by Sanford’s act of leaving the car and attempting to go to his residence. We, therefore, reject Sanford’s contention that Anderson mandates that a defendant who flees a marked vehicle with lights and siren engaged and subsequently stops and runs away, is excused by the latter act from the offense of aggravated fleeing and eluding or that his act of fleeing the scene is not a factor in committing the charged offense.

GROSS and HAZOURI, JJ., concur.

      . We note that although we used the term "harmless,” it is apparent, from the context of the opinion, that the court’s concern was with whether the error in the instruction was prejudicial, as misleading, and not with consideration of "harmless error” application.

      . Anderson’s jury was charged as follows:
      knowing he had been directed to stop by a duly-authorized law enforcement officer, willfully fled in an attempt to allude [sic] the police officer after having stopped.

      Sanford’s jury was charged:
      knowing he had been directed to stop by a duly authorized law enforcement officer, willfully refused or failed to stop the vehicle in compliance with the order, or having stopped the vehicle, willfully fled in an attempt to elude the officer....


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. P.M., a child, Appellee.
    No. 4D02-3396.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellee.
   TAYLOR, J.

The state appeals the trial court’s dismissal of the delinquency petition filed against P.M. for failure to arraign the child within the speedy trial period. We reverse, because, based on our court’s recent ruling in C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004)(en banc), the state was entitled to the ten-day recapture period within which to try the child.

On October 4, 2001, P.M. was arrested for selling one crack - cocaine rock to an undercover detective. On November 80, the state filed a petition for delinquency against the child. The ninety-day speedy trial period expired on January 2, 2002. Because of the state’s four unsuccessful attempts to serve him with a summons, the child was not arraigned until July 10, 2002.

On July 23, 2002, the child filed a written motion to dismiss. At the hearing on the motion, the child asserted that his speedy trial rights were violated and that the state was not entitled to the recapture period because he was not arraigned until approximately five months after the expiration of the speedy trial period, through no fault of his own. He relied on D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002)(holding that the state was not entitled to the benefit of the recapture period because, although the petition was filed within the speedy trial period, the child was not arraigned until after speedy trial had expired, and the failure to arraign the child within the speedy trial period was attributable to the state). The trial court agreed and dismissed the petition.

We recently receded from D.D. in C.D. In C.D., we decided to “adhere to the bright line” that Rule 8.090 of the Florida Rules of Juvenile Procedure already provides. We held:

When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

865 So.2d at 610; see also State v. C.E., 866 So.2d 757 (Fla. 4th DCA 2004); State v. S.C., 865 So.2d 684 (Fla. 4th DCA 2004).

Because none of the factors in subsection (d) were found to exist, the state was entitled to the ten-day recapture period within which to try this case. Accordingly, we reverse the dismissal and remand for further proceedings.

REVERSED and REMANDED.

STONE and KLEIN, JJ., concur.


text:
    Lament Tarenc GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4B04-1401.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Lamont Tarenc Gray, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Lamont Tarenc Gray appeals the trial court’s Order denying his Motion for Transcripts. This court originally treated the appeal as an appeal from a Florida Rule of Criminal Procedure 3.850 motion. However, it appears from the record before us that Gray has not yet filed a Rule '3.850 motion, therefore we re-designate the appeal as an appeal from an order entered after final judgment and grant review pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D). The trial court denied Gray’s Motion on the basis that it was legally insufficient. We affirm without prejudice for Gray to file a Rule 3.850 motion.

Gray’s Motion for Transcripts requests that the trial court enter an order directing the court reporter to furnish him a copy of the transcripts of his trial and sentencing hearing. He alleges that the transcripts are “essential to effectively litigate defendant’s collateral appeal.” However, the motion does not include a copy of the motion for post-conviction relief nor does it state that he has filed any motion for post-conviction relief. The filing of a motion for post-conviction relief is a prerequisite to the trial court’s consideration of any motion for transcription. See Carr v. State, 495 So.2d 282 (Fla. 2d DCA 1986) (holding that a prisoner seeking post-conviction relief must first prepare and file his motion before he may secure those portions of the record relevant to that motion).

Since the trial court did not have before it a post-conviction motion attacking the judgment or sentence to which transcripts may be relevant, the trial court’s denial of Gray’s Motion for Transcripts was proper.

AFFIRMED.

POLEN, GROSS and HAZOURI, JJ., concur.


text:
    Akeem MUHAMMAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-742.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Akeem Muhammad, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kathleen Von Hoene, Assistant Attorney General, Bureau Chief, Civil Litigation Division, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Moore v. Burns, 796 So.2d 1261 (Fla. 3d DCA 2001).

GUNTHER, TAYLOR and HAZOURI, JJ., concur.


author: GUNTHER, J.

text:
    R.S., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-3601.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Pamela Wynn, Lake Worth, for appellant.
    Jeffrey Dana Gillen of the Department of Children and Family Services, West Palm Beach, for appellee.
   GUNTHER, J.

The parental rights of R.S. were terminated. R.S. raises multiple issues on appeal. We write to address only the issue of whether the trial court erred by terminating R.S.’s parental rights on a ground not pleaded in the termination petition. On that issue, we reverse.

The Department of Children and Families (DCF) filed a petition for termination of parental rights as to R.S. and her four children. In the petition, DCF stated five grounds for termination: Florida Statutes sections 39.806(l)(b), 39.806(l)(c), 39.806(l)(d)3., 39.806(l)(e), and 39.806(1)®. During DCF’s opening statement at the termination hearing, DCF requested termination on three grounds: 39.806(l)(b), 39.806(l)(b)3. [presumably 39.806(l)(d)3.], and 39.806(l)(e).

At the conclusion of the termination hearing, the trial court made findings supporting termination under 39.806(l)(d)l. and 39.806(l)(e). In the written order of termination, the trial court indicated that it was terminating R.S.’s parental rights under 39.806(l)(d) and 39.806(l)(e), incorporating findings relevant to both 39.806(l)(d)l. and 39.806(l)(d)3., as well as 39.806(l)(e).

R.S. contends that it was error for the trial court to terminate her parental rights on a ground, 39.806(l)(d)l., not pleaded in the termination petition. See In the Interest of A.D.J., 466 So.2d 1156, 1163 (Fla. 1st DCA 1985)(recognizing the principle in the conteict of permanent commitment). We agree. The termination petition does not allege 39.806(l)(d)l. as a ground for termination, nor did DCF seek termination under this ground during its opening statement or by amendment of the petition. Additionally, the termination was not tried by consent. Nonetheless, the trial court terminated R.S.’s parental rights on this ground. This fact is not altered by the termination order’s focus on 39.806(l)(d) as a whole where the un-pleaded ground of 39.806(l)(d)l. was considered and incorporated by the trial court. Such is error because it is a denial of the procedural due process rights of notice and a fair hearing. See Wood v. State, 544 So.2d 1004, 1006 (Fla.1989)(“adequate notice and meaningful hearing” required before termination of substantive rights). R.S. was unaware that her parental rights were subject to termination at the hearing on the ground not pleaded, and consequently, she was unprepared to rebut the ground, especially where the ground was not even mentioned until the trial court’s ruling.

Therefore, on this issue, we reverse and remand for the entry of a termination order removing all findings and references relevant to 39.801(d)l. However, because another ground, 39.806(l)(e), supports termination, the ultimate outcome of this case is not impacted by the need to correct this error.

We find none of the other issues raised by R.S. to be persuasive. As such, we affirm on all other grounds not addressed in this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FARMER, C.J., and HAZOURI, J., concur.


author: WARNER, J.

text:
    Olgierd SWIDA, Petitioner, v. Maria RAVENTOS, Respondent.
    No. 4D03-4377.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Tracy Belinda Newmark of Fixel & La Rocco, Hollywood, for petitioner.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, Mclntrye & Gregoire, P.A., Fort Lauderdale, and Peter L. Gladstone of Gladstone & Weissman, P.A., Fort Lauderdale, for respondent.
   WARNER, J.

The former husband petitions for a writ of prohibition to prevent the trial judge from continuing to preside over the post-dissolution proceedings. He filed a motion to recuse the trial judge after she denied him an opportunity to present any case at all on the former wife’s motion to hold him in contempt for failure to provide financial accountings with respect to certain non-marital assets. We agree and grant the writ.

The motion to recuse alleges, and the transcript of the hearing reveals, that at the hearing on the motion for contempt the judge refused to permit the former husband to present any defense at all on the motion. While the former wife’s attorney was allowed to fully examine the first witness, an accountant, the judge cut off cross-examination. Then the former wife called the former husband for a few short questions regarding documents he produced in connection with a particular business in which he had invested. When the former wife’s attorney had asked only a few questions, the time for the hearing had run. The former husband’s attorney requested to continue the hearing until the next week when more time had been set aside. Instead, the judge determined that she had sufficient knowledge of the case from prior proceedings and would hold the former husband in contempt. The judge stated that the former husband had not successfully explained his conduct, but his attorney rightfully pointed out that the court had not given him the opportunity to do so. Both an oral motion to recuse, followed by a timely written motion, were denied by the judge, prompting this petition for writ of prohibition.

Our recent case of Peterson v. Asklipious, 833 So.2d 262 (Fla. 4th DCA 2002), is controlling. There, as here, the judge was hearing a motion for contempt against a former husband when he asked the con-temnor’s counsel why he expected the judge to believe that he had no money when the judge had not believed him in the past. Counsel responded, but the court cut him off and, without hearing evidence, held the husband in contempt. We held that the trial judge’s comments gave the appellant a well-founded fear that he would not receive a fan- hearing before the judge. See 833 So.2d at 264.

Here, the trial judge refused to permit the former husband to present any case with respect to the motion for contempt and instead determined that she knew more than the attorneys about what was transpiring, relying on prior hearings with the former husband, much as the court did in Peterson. This was sufficient to show that the trial court had prejudged the case. The judge did not give the former husband the opportunity to explain his conduct, even though that is his right and obligation when facing civil contempt. See Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985) (noting defaulting party has the burden of dispelling presumption that he has ability to comply with order). Before hearing his side of the case, the judge stated that she had a “deep-seated suspicion” regarding the former husband’s conduct and that he had not explained himself. She ordered him to provide a “full accounting” of all of his business transactions within ten days or face jail.

We conclude that the motion to recuse was legally sufficient. We therefore grant the writ and direct that the case be assigned to a successor judge.

GROSS and MAY, JJ., concur.


author: STEVENSON, J.

text:
    WINSTON PARK, LTD., a Florida Limited Partnership, Appellant, v. CITY OF COCONUT CREEK, a Florida Municipal Corporation, Appellee.
    No. 4D03-5.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      William S. Spencer, Fabienne E. Fah-nestock and Christian A. Petersen of Gun-ster, Yoakley & Stewart, P.A., Fort Laud-erdale, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, and Maurice M. Garcia of Abrams, Anton, P.A., Hollywood, for appellee.
   STEVENSON, J.

This appeal concerns a breach of contract and declaratory action by appellant, Winston Park, Ltd. (Winston Park), against appellee, the City of Coconut Creek (City), regarding the parties’ rights, duties and obligations with respect to a 1983 agreement concerning the construction and use of certain water and sewage transmission. facilities. Because we find the existence of genuine issues of material fact, we reverse the trial court’s order granting summary judgment in favor of defendant/appellee, the City.

The 1983 Agreement

In 1983, a group of property owners (Participants) in the City of Coconut Creek formed the Coconut Creek Pollution Elimination Company (Company). Winston Park, a developer in the City, is the successor in interest to one of the original Participants in the Company.

On June 23,1983, the City and Company entered into an Agreement (“1983 Agreement”), wherein the Company agreed to finance, construct and then convey to the City a portion of the primary water distribution pipelines and sewage transmission facilities through which the City would provide water and sewer services to the Participants’ properties and the properties of others to be served by the City. By entering into the 1983 Agreement, the City was relieved of the obligation to build and finance the construction of the water and sewer transmission facilities.

The 1983 Agreement provided the minimum capacity of the water distribution pipelines and sewage transmission facilities to be constructed by the Company and defined how the capacity would be measured:

The COMPANY warrants that the facilities to be constructed shall provide a minimum of 10,000 ERC’s [Equivalent Residential Connections] of water and sewer capacity. An ERC, for purposes of this Agreement, will be defined as a unit of measurement equal to a water flow of 350 gallons per day and a sewer flow of 285 gallons per day.

Each of the original Participants to the 1983 Agreement, including the City, reserved for itself a specific number of ERC’s making up the 10,000 ERC’s. It is undisputed that the City reserved 3,000 ERC’s for itself and has since utilized all 3,000 ERC’s. Winston Park was assigned a total of 3,000 ERC’s from its predecessor in interest and original Participant in the Company. The total cost attributed to the construction of the facilities supported 10,-000 ERC’s. Under the 1983 Agreement, the City could not divert the Company’s share of water and sewer capacity to other areas within the City limits of the City without the Company’s express written consent.

The 1983 Agreement made it mandatory for each Participant to surrender any “unused capacity’ or ERC’s to the City when it- completed construction of its development and provided the means for a Participant to allocate or sell its unused ERC’s to a third party. The 1983 Agreement provides:

[A]ny unused capacity shall be surrendered to the CITY in writing on a form of an affidavit supplied by the CITY that shall include the name of the owner/holder of any such unused capacity, the exact amount of any unused capacity expressed in ERC’s currently available and the cost of said capacity as hereinafter defined. Upon the surrender of such capacity, the COMPANY ... shall be given a right of first refusal as to those ERC’s surrendered by other shareholders or participants.
... Any purchase by any such shareholders, participants and successors shall be the first to respond in writing and pay for the same in cash and in full to the City Manager. In the event no such participant ... responds in writing and pays for said ERC’s within 30 days, the CITY shall be free to dispose of said unused ERC’s as hereinafter provided.
Upon the allocation of said ERC’s as determined by the CITY to any third parties by the CITY, the former owner/holder of said unused ERC’s shall, within 30 days of the receipt by the City of the full amount then charged, receive from the CITY a sum equal to .80% of the full amount then charged for such capacity by the CITY. Hoivever, the CITY shall not be required to accept at any time, any unused ERC’s offered to the CITY by the shareholders, participants and successors, (emphasis added).

The City does not operate or maintain a water treatment plant or a sewage treatment and disposal collection system. Instead, the City receives bulk potable water and its allocation of sewer capacity under a Water Agreement and Wastewater Agreement (collectively “Large User Agreement”), entered into between the City and Broward County in 1973 and 1981, respectively. As such, the 1983 Agreement contemplated that the .City would be required to increase its projection of bulk potable water and the allocation of sewer capacity it receives from Broward County to meet and secure the 10,000 ERC’s of water and sewer capacity reserved by the Participants. If City could not secure the commitment from Broward County, the Company was not obligated to construct the water and sewer transmission facilities.

The Lawsuit

In the mid 1990’s, Winston Park completed development on a community it was building and determined it had 296 excess unused ERC’s and sought to surrender them to the City for allocation to another developer, Engle Homes, who was building a community called Banyan Trails in the City. Winston Park orally agreed to sell its excess ERC’s to Engle Homes for $2,400 each. Subsequently, Winston Park tendered to the City of Coconut Creek a surrender of unused ERC capacity, specifically expressed as “296 ERC’s.” The City, however, refused to allow Winston Park to transfer its excess ERC’s to Engle Homes and informed Winston Park that it was exercising its right under the agreement to decline to accept the unused ERC’s, Instead, the City sold 296 ERC’s to Engle Homes directly for $3,200.00 each. The City later declined to pay Winston Park 80% of the money received from the sale as requested.

Winston Park subsequently filed the instant lawsuit for breach of contract and declaratory relief, alleging that the City allocated or sold Winston Park’s water and sewer capacity within the Company system to Engle Homes without paying it 80% of the money received from the sale.

The parties took differing positions at the hearing on the motion for summary judgment. Winston Park argued that the pipelines built by the Company under the 1983 Agreement had a finite transmission capacity and, as such, it could carry no more than 10,000 ERC’s of water and sewer capacity. Thus, the City had ERC’s available for allocation to Engle Homes only because of the 296 unused ERC’s it owned. Winston Park, through a series of exhibits, showed that the master utilities plan for the development of Banyan Trails was connected to and receives water from the pipelines the Company built under the 1983 Agreement. Alternatively, Winston Park argued that even if it could be assumed that the pipelines were capable of carrying more than 10,000 ERC’s, the City was required to first reimburse it for the remaining available ERC’s, up to 10,000 ERC’s, and then it could sell ERC’s above and beyond that.

The City disputed that the pipelines built by the Company were sized to carry only 10,000 ERC’s of water and sewer capacity, stating that the “[pipelines are the backbone of the City.” The City also argued that it did not sell Winston Park’s ERC’s to Engle Homes; instead, it acquired additional ERC’s from Broward County through the Large User Agreement.' The City maintained that since the 1983 Agreement contemplated that the water pipelines and sewage transmission lines constructed by the Company would serve other properties within the City, and outside of the designated area for which they were constructed, the City was free to pass these additionally-obtained ERC’s through the facilities. The City further argued that it was not required to accept the 296 unused ERC’s tendered by Winston Park; thus, it was not contractually bound to pay Winston Park for its unused ERC’s.

The trial court granted the City’s motion for summary judgment on the basis that the ERC’s the City sold were “outside the scope of the boundaries of the original [1983] agreement” and that the City was not required to accept Winston Park’s unused ERC’s. It is from this final judgment that Winston Park appeals.

The Decision

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. See Publix Super Mkts., Inc. v. Schmidt, 509 So.2d 977 (Fla. 4th DCA 1987). Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, “the nonexistence of a genuine issue of a material fact.” Besco USA Int’l Corp. v. Home Sav. of Am. FSB, 675 So.2d 687, 688 (Fla. 5th DCA 1996). If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party. See id.

In the instant case, we reverse because we find that the record does not conclusively show that the City did not utilize Winston Park’s unused ERC’s or that the ERC’s Engle Homes purchased were “outside the boundaries” of the agreement. While the 1983 Agreement gave the City the option to refuse to accept the ERC’s “at any time,” questions of fact still remain as to whether the City’s subsequent actions constituted a utilization, and therefore an implicit acceptance of Winston Park’s unused ERC’s.

The record is unclear, and the parties do not agree, as to whether the facilities built by the Company have a water and sewage capacity in excess of 10,000 ERC’s. While the 1983 Agreement speaks in terms of a minimum of 10,000 ERC’s of water and sewer capacity, the Company system could have ultimately been built to accommodate a maximum capacity of 10,000 ERC’s of water and sewer. The City responds to this argument by stating that nothing in the 1983 Agreement demonstrates that the Company system could accommodate no more than 10,000 ERC’s. However, the counter argument is also true. There is no evidence that the Company system could accommodate more than 10,000 ERC’s of water and sewer capacity, ■ and any doubts in the record must be resolved against the City, as movant. At the hearing on the motion for summary judgment, Winston Park showed that the ERC’s the City sold to Engle Homes are connected to the Company System. If the Company System has a finite capacity as Winston Park suggests, then questions of fact remain as to whether the City implicitly .accepted and sold Winston Park’s ERC’s to Engle Homes.

The Large User Agreement attached to the 1983 Agreement provides no clarity on the City’s position that the ERC’s sold to Engle Homes were obtained from Bro-ward County and, as such, are “outside the boundaries of the original agreement.” From what we glean from the record, the Large User Agreement and the amendments thereto contemplated that Broward County would be the City’s source of potable water and sewer treatment. Broward County provided the potable water to, and sewer treatment from, certain “Points of Connection” located at areas mutually agreed to between the City and Broward County; and the City, through its own water distribution system, like the one built by the Company, brought water to and sewer from the “Points of Connection” to the end users.

We recognize support in the record for the City’s position that the Large User Agreement was a source from which the City could increase its “metered capacity” of potable water or ’“reserved capacity” of wastewater from Broward County to the “Points of Connection.” However, the record does not conclusively establish what affect, if any, Broward County’s agreement to provide additional potable water to the City, and to increase its reserve capacity of wastewater, had on the Company facilities and the agreement between the Company and the City. The pipelines provided by the Company could presumably be one of the many primary distribution systems within the City, and it is also possible that the City could have büilt additional transmission facilities to accommodate the increase in water and sewer capacity as it did in 1983. Because relevant factual issues remain disputed and unresolved on the record, summary judgment was inappropriate. -

Since we reverse, we find it unnecessary to address Winston Park’s additional arguments.

REVERSED and REMANDED.

SHAHOOD, J., and GEIGER, DWIGHT L., Associate Judge, concur.

      . The Water Agreement provides that "[t]here shall be one or more master meters installed, at points mutually agreeable, through which all water supplied to customers of COCONUT CREEK within the areas described in Exhibit A shall be supplied.”
      The Wastewater Agreement states that ''POINT(S) OF CONNECTION” mean "the POINT(S) where the CUSTOMER'S [City] system connects to the COUNTY system for the purpose of delivering wastewater into the COUNTY system from the CUSTOMER'S [City] system.”

      . For example, the Water Agreement states "the Consumer [City] shall not pump water into its water distribution system” and "the Consumer [City] shall not allow any customer [citizen] to connect with the Consumer's [City] distribution system.”
      The Wastewater Agreement also states:
      CUSTOMER [City] agrees to construct where necessary, and to operate and properly maintain at its own cost and'expense, all sanitary gravity sewers, lifts stations, pumping stations, force mains, and other required appurtenances related and directly attributable to the wastewater collection system upstream of the POINT(S) OF CONNECTION that are necessary to properly and continuously collect and convey sanitary wastewater to the POINT(S) OF CONNECTION.


author: MAY, J.

text:
    Stephen MCCLELLAN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D04-1576.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2004.
    Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondent.
   MAY, J.

The defendant petitions this court for a writ of habeas corpus challenging his pretrial detention for the charges of leaving the scene of an accident with serious injury and leaving the scene of an accident with death. We grant the petition and remand the case for an immediate bond hearing consistent with this opinion.

Article I, Section 14 of the Florida Constitution affords trial courts wide latitude in making decisions concerning pre-trial release and bond. However, those latitudes are not without bounds. “Section 907.041 tucks neatly into this constitutional provision by defining the standards for the type of pretrial detention which commences from the inception of a case.” Thomas v. Jenne, 766 So.2d 320, 322 (Fla. 4th DCA 2000). It is these statutory provisions that cause us to grant the petition and issue the writ in this case.

Section 907.041(4)(c), Florida Statutes (2003) provides: “[t]he court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 908.046, and any other relevant facts, that any of the following circumstances exists .... ” The “following circumstance” upon which the trial court relied in this case was subsection (4)(c)5, which states:

The defendant poses the threat of harm to the community. The court may so • conclude, if it finds that the defendant is presently charged with a dangerous crime, and there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a-disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.

§ 907.041(4)(c)5, Fla. Stat. (2003) (emphasis added). The crimes charged must qualify as “dangerous crimes” to satisfy the statute. The legislature defined “dangerous . crimes” in section 907.041(4)(a), Florida Statutes (2003). The crimes with which the defendant is charged are not within those enumerated. Thus, reliance on this provision is misplaced.

While the trial court properly reviewed the relevant criteria set forth in section 903.046, Florida Statutes (2003), there is no provision under section 907.041 under which the charged crimes qualify for pretrial detention. The' trial court therefore erred in ordering pretrial detention of the defendant.

We grant the petition, issue the writ, and remand this case to the trial court for an immediate bond hearing to determine the proper conditions, monetary and otherwise, upon which to base the defendant’s release.

FARMER, C.J. and KLEIN, J., concur.


author: GRIFFIN, J.

text:
    Jerry Layne ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2689.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Timothy C. Hester, Matthew E. Fish-bein, Richard W. Smith and John H. Fu-son, of Covington & Burling, Washington, DC, Clyde E. Wolfe, St. Augustine, and Jerrel E. Phillips, Tallahassee, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Jerry Layne Rogers [“Rogers”], appeals his conviction and sentence for first-degree felony murder in the death of David Smith, a manager of a Winn-Dixie store in St. Augustine. Rogers raises five issues. We find no reversible error and affirm.

We write to address only one of the issues raised in Rogers’ claims — that the trial was rendered fundamentally unfair by a succession of discovery rulings by the trial court. In order to understand this issue, it is necessary to refer to Rogers’ first trial, conviction and appeal. The crime took place on January 4, 1982. David Smith was killed during an attempted robbery by two men. Rogers was tried and convicted of the homicide and received the death penalty. The Supreme Court of Florida affirmed the conviction. Rogers v. State, 511 So.2d 526 (Fla.1987) [“Rogers /”]. Thereafter, however, Rogers filed a motion for post-conviction relief claiming that the State had withheld material impeachment evidence concerning the other robber, Thomas McDermid [“McDermid”], and evidence implicating another individual, George Cope [“Cope”], as McDermid’s accomplice in multiple robberies. The defense theory was that Cope, not Rogers, had been McDermid’s accomplice. In February 2001, the Supreme Court granted Rogers relief, reversing his conviction and sentence and remanding for a new trial. Rogers v. State, 782 So.2d 873 (Fla. 2001) [“Rogers II”].

On November 13, 2001, Rogers filed a motion to dismiss the indictment, alleging that the State had failed to comply with its discovery obligations. In opposition, the State maintained that it had requested from seventy-one different. law-enforcement agencies all robbery reports.in 1981 and 1982 that had referenced Cope, McDermid, or Rogers. Rogers replied that, under the terms of the supreme court’s opinion, the State’s search was too narrow and the State should be looking for all reports from law-enforcement agencies along the 1-4 corridor, concerning retail establishment robberies from the fall of 1981 through the spring of 1982. In an order dated October 12, 2001, the trial court ordered the State “to comply with the Notice of Discovery no later than November 1, 2001.” On December 19, 2001, the State filed a certification with the court that it had complied with its Brady obligation and Rogers filed a renewed motion to dismiss, again urging that the State’s search of law enforcement agencies’ records was inadequate under the terms of the court’s order.

The trial court denied the motion to dismiss the indictment, but indicated a willingness,, to consider lesser sanctions. Thereafter, the trial court held a hearing, at the conclusion of which it granted Rogers’ motion to exclude evidence of Rogers’ other crimes. Rogers had previously been convicted of three robberies with McDer-mid in the Orlando area for which he had been sentenced 'respectively to terms of imprisonment for life, 100 years and twenty years [“the Orlando convictions”].

During the trial, defense counsel filed a motion in limine asking that the defense be allowed to enter evidence of an association between McDermid and Cope without opening the door to Rogers’ Orlando convictions. In denying the motion, the court explained:

[T]he sanction was imposed against the State and they couldn’t use the information. The defense now seeks to pull some of that information off the shelf ... and .use it. It seems to me that that [sic], if it’s offered, is reverse Williams rule and opens — my sense is that that would open the door. Now I’d need to hear it, and my ruling would be subject to the actual words that are used by the witness....

Rogers claims that the court’s limitation on its sanction presented the defense with an untenable choice: (1) permit the introduction of Rogers’ Orlando convictions; or (2) forego exculpatory evidence. Rogers asserts that the evidence of the Cope/MeDermid robberies would have proven that: (1) the two knew each other, (2) McDermid had lied when he denied knowing Cope, (3) Cope and McDermid had engaged in criminal activity about the time of the Winn-Dixie robbery, and (4) Cope fit the physical description of the Winn-Dixie robbery. Moreover, he argues that tying admission of the McDer-mid/Cope crimes evidence to admission of his Orlando convictions prejudiced him because it unfairly restricted his defense.

Rogers somewhat inconsistently maintains that the trial court’s sanction against the State for failure to fully develop evidence of other 1-4 robberies that might reveal a McDermid/Cope association was valid, yet the trial court’s decision to disallow the exclusion of the Orlando crimes if Rogers offered evidence of a McDer-mid/Cope criminal association was illegal and unfair. We disagree. The trial court, as a sanction, precluded the State from offering powerful ‘Williams Rule” evidence of subsequent robberies by McDermid and Rogers in Orlando but subsequently determined that sanctions should not apply if Rogers offered evidence of other McDer-mid/Cope robberies. Plainly, the scope of this sanction, both when initially imposed and during trial, was within the court’s discretion. See, e.g., State v. Tascarella, 580 So.2d 154, 157 (Fla.1991). The court expressed its reluctance to impose the sanction in the first instance and gave several reasons, including the lack of evidence that any fact of significance had been concealed or that the defense was truly prejudiced.

Rogers was given a strategic decision to make: offer evidence of the McDer-mid/Cope association and allow the jury to hear about the Rogers/McDermid association, or forego both. The Florida supreme court had already determined in Rogers I, 511 So.2d at 531, that the Orlando convictions were admissible as Williams rule evidence, so the defense had a clear-eyed view of how this issue would play out at trial. The choice may have been hard, but it was not unfair. Whether the jury might have been persuaded to acquit if it had heard Rogers’ McDermid/Cope evidence along with the Rogers/McDermid evidence is impossible to know. Rogers elected to accept the benefit of the exclusion of the Orlando crimes evidence. The trial judge did not err.

AFFIRMED.

SHARP, W., and ORFINGER, JJ., concur.

      . George William Cope had been identified as one of two robbers of the Ormond Beach Publix Supermarket on December 3, 1981, and the Long John Silver's restaurant in South Daytona. McDermid confessed to also taking part in these crimes.


text:
    Adalberto TOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3811.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.
   PER CURIAM.

Adalberto Tovar challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

In his motion, Tovar alleged that he pleaded guilty to trafficking in fourteen grams or more but less than twenty-eight grams of methamphetamine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(f)(l)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). To-var’s claim is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Williams v. State, 870 So.2d 213 (Fla. 2d DCA 2004). According to Tovar’s motion, he committed the offense of trafficking in methamphetamine on November 5, 1999, which is within the Taylor window. Pursuant to Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), if Tovar committed the offense within the Taylor window, the trial court is required to resentence him under the 1997 version of section 893.135(l)(f)(l)(a). See McCabe v. State, 844 So.2d 703, 705 (Fla. 2d DCA 2003).

The trial court denied Tovar’s motion on the basis that this court’s opinion in Taylor has prospective application only. In support of its ruling, the trial court relied on State v. Callaway, 658 So.2d 983 (Fla. 1995), and Witt v. State, 387 So.2d 922 (Fla.1980). The trial court’s reasoning is erroneous. We reviewed an almost identical order in Williams, and in reversing the order of the trial court in the present case, we rely on the legal conclusions enunciated in that case.

Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

NORTHCUTT, STRINGER, and SILBERMAN,' JJ., Concur.

      . See Green v. State, 839 So.2d 748, 749 n. 1 (Fla. 2d DCA 2003).


author: PETERSON, J.

text:
    SPECIALIZED MACHINERY TRANSPORT, INC., Appellant/Cross-Appellee, v. Henry H. WESTPHAL, Appellee/Cross-Appellant.
    No. 5D03-1707.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.

      Rexford H. Stephens and Stacey L. Cole of Akerman Senterfitt, Orlando, for Appellant/Cross-Appellee.
    Mark 0. Cooper of O’Neill, Liebman & Cooper, P.A., Orlando, for Appellee/Cross-Appellant.
   PETERSON, J.

Specialized Machinery Transport, Inc., (“Specialized”), appeals a final summary judgment entered in favor of Henry H. Westphal who sought the final payment under a contract for the sale of his business to Specialized. We reverse.

Westphal sold certain assets of his trucking and specialized transport business to Specialized including all licenses, permits and authorities to operate the assets and business. The sale also included the goodwill of the business and West-phal’s agreement not to compete directly or indirectly with Specialized for a period of three years. Payment was to be made in installments within a two-year period and when the last installment went unpaid, Westphal sued.

Among the assets that Specialized purchased was a license issued by the Interstate Commerce Commission, number MC-186433, known as an “authority.” After the purchase, Specialized placed authority MC-186433 in an inactive status because it had another, authority under which it could operate the trucking business purchased from Westphal. It is undisputed that Westphal had operated his trucking business only under this one authority. Specialized believed that it had purchased Westphal’s trucking business in its entirety, including all names by which Westphal had previously conducted business, when it purchased authority MC-186433.

Westphal continued to work for Specialized after the sale for over a year, but then retired. Shortly after Westphal’s departure, Specialized’s business revenue decreased by sixty percent within four months. The reason became apparent when Specialized discovered a truck operated by Westphal’s son bearing the name “H & D Westphal” was transporting freight for at least one of Specialized’s former customers. The renewed competition resulted in the closing of Specialized’s business.

Westphal testified at his deposition that the business he sold to Specialized was the trucking business he personally had been operating and that the sale included the unregistered fictitious name “H & D Industrial Equipment.” He confirmed that authority MC-186433 had been issued to “H. D. Westphal, dba H & D Industrial Equipment Engineering & Rigging Co.” Nevertheless, he denied that he breached his promise not to compete by “selling” the name “H & D Westphal” to his son. More revealing is the fact that Westphal admitted applying for a new authority which was denied and then reactivating MC-186433 instead. When asked why he reactivated it and what he was going to do with the authority, he responded “no special reason” and “nothing.”

The trial court granted summary judgment to Westphal based upon Specialized’s admission that it did not make the final installment payment and Westphal’s self-serving affidavit that he did not engage in any conduct which constituted prohibited competition.

We are unable to glean from the judgment why the trial court granted summary judgment in view of the facts before it disputing Westphal’s conclusion that he did not breach his non-competition agreement. If the court seized only upon the notion that Westphal’s “sale” of the business name “H & D Westphal” to his son was not inconsistent with the sale of “H & D Industrial Equipment” or “H. D. West-phal, dba H&D Industrial Equipment Engineering & Rigging Co.,” that limited consideration was not correct. The intention of the parties in this sale must be determined from an examination of the entire contract and not from separate phrases or paragraphs. E.g., Lalow v. Codomo, 101 So.2d 390 (Fla.1958). Thus, the meaning is not to be gathered from any one phrase, but from a general view of the whole writing, with all of its parts being compared, used, and construed, each with reference to the others. E.g., Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963) (holding that all the various provisions of a contract must be construed, if it can reasonably be done, as to give effect to each). “Looking to the other provisions of a contract and to its general scope, if one construction would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability.” Id. at 315-16.

Additionally, the departure of Westphal from employment with Specialized followed by a truck appearing at a former customer of Specialized with the name “H & D Westphal” painted on it and West-phal’s reactivation of an authority in which he had no interest because of the prior sale to Specialized, certainly raises concerns that Westphal was not honoring his agreement not to compete and those concerns cannot be resolved by summary judgment.

We vacate the summary final judgment and remand for further proceedings. We affirm the trial court’s denial of Westphal’s motion for attorney’s fees. The contract provision for attorney’s fees was correctly interpreted in accordance with Massachusetts law. See, e.g., Precision Tune Auto Care, Inc. v. Radcliffe, 815 So.2d 708 (Fla. 4th DCA 2002).

REVERSED IN PART, AFFIRMED IN PART and REMANDED.

THOMPSON and ORFINGER, JJ., concur.

      . Westphal may have used the authority to operate his trucking business under nine different names.


author: THOMPSON, J.

text:
    Steven CHESHIRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-620.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Steven Cheshire, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Steven Cheshire appeals an order summarily denying his post-conviction motion for DNA testing. See Fla. R.Crim. P. 3.853. We reverse and remand for further proceedings.

Cheshire was charged with two counts of first-degree murder for the murder of his wife and Darrell Durbin. After a jury trial, Cheshire was convicted of both counts of first-degree murder and received the death penalty for the murder of his wife. After the death penalty on that conviction was vacated, he was sentenced to life imprisonment. Cheshire v. State, 568 So.2d 908 (Fla.1990).

Six weeks before the murders, Cheshire’s wife left him and began living with Durbin. In the early morning hours of 30 October 1988, Cheshire’s wife and Durbin were shot , and killed in their home by an intruder. At trial, the state introduced into evidence a blue pullover shirt containing at least one blood' stain. That shirt ■was seized from Cheshire’s ■ pickup truck upon his arrest. Cheshire states that the evidence custodian of the Putnam' County Sheriffs Office has possession of the shirt. Cheshire asserts that he is innocent of the crimes for which he was convicted and that the identification of the perpetrator was a genuine, disputed issue of fact. Cheshire alleges that the shirt was previously tested for DNA by FDLE, but that the results were inconclusive. He claims that as a result of scientific developments in DNA testing, a definitive result could now be obtained which would be admissible at trial. Cheshire further alleges that if DNA testing had shown that the blood on the shirt did not match the victims’ blood, there is a reasonable probability he would have been acquitted as the physical evidence against him was slight.

In Cheshire v. State, 568 So.2d 908 (Fla.1990), the supreme court summarized the evidence against him. Witnesses testified that Cheshire had threatened his wife’s life. On the night of the murders, Cheshire was seen driving his vehicle in the area where the murders took place. The physical evidence was a blood stain on Cheshire’s shirt and, in the driveway of the residence where the murders took place, a shoe print “most probably” made by Cheshire’s right shoe. Although’ the supreme court found that the physical evidence was “scant,” it held that all of the evidence, when considered together, was legally sufficient to support the convictions. Id. at 910, 912-913.

The circuit court denied the Rule 3.853 motion as legally, insufficient. The court noted that the DNA tests previously conducted by FDLE were found to be inconclusive because there was not enough blood on -the shirt to perform “confirmatory” tests. Attached to the order was a portion of the trial transcript, with testimony indicating that the blood sample was too scant even to determine whether it was human blood. In denying relief, thé court noted that Cheshire had not identified what new DNA testing methods would produce a confirmatory result. The court also found that Cheshire had not shown a reasonable possibility of acquittal if the shirt were to be re-examined.

Although characterized as legally insufficient by the court, Cheshire’s motion was legally sufficient in that it contained all of the required allegations listed in Florida Rule of Criminal Procedure 3.853(b). If a legally sufficient motion is filed, the trial court must order the prosecuting authority to respond. See Fla. R.Crim. P. 3.853(c)(2). The court in the instant case should have ordered a response from the state. Under the proper procedure, once the court receives the response from the state, it then determines whether the motion should be summarily denied on the merits or scheduled for an evidentiary hearing. Cf. Manual v. State, 855 So.2d 97 (Fla. 2d DCA 2003). Instead of following this procedure, the court incorrectly ruled the motion insufficient and then attempted to refute its allegations.

Rule 3.853 was not intended to provide indigent defendants with a broad entitlement to conduct “fishing expeditions” at public expense in search of new evidence that might exonerate them. We do not suggest that Cheshire, at this stage, is entitled to a re-examination of the shirt for DNA results, or to an evidentiary hearing. We merely hold that the Rule 3.853 motion is legally sufficient and that the trial court should have ordered a response from the state before deciding whether the motion should be summarily denied or set for an evidentiary hearing. See Fla. R.Crim. P. 3.853(c)(3).

The court stated that the motion was legally insufficient, but then addressed the motion on the merits. The court attempted to refute Cheshire’s allegation that scientific developments in DNA testing would produce a definitive result, and referred to trial testimony which indicated that the blood sample was too insignificant for further analysis. The court also refuted Cheshire’s allegations that DNA testing would likely exonerate him. We do not hold that Cheshire is entitled to relief, but because the motion is legally sufficient, the court should order a response from the state before deciding whether to deny the motion or schedule a hearing. The state should first be given an opportunity to investigate whether the evidence custodian retains possession of Cheshire’s shirt more than fifteen years after trial. The state might also dispute Cheshire’s claim that scientific developments in DNA testing would provide a definitive result, or argue that the blood stain is too old for meaningful testing. However, if the state finds that the shirt cannot be located and is no longer available for testing, these other issues would be moot.

We reverse the order denying relief, and remand the case to the circuit court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

PETERSON and MONACO, JJ., concur.


text:
    Brian David KABLITZ, Petitioner, v. Ed BIELUCH, Sheriff of Palm Beach County, Respondent.
    No. 4D04-1211.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    David C. Kotler of Schwartz, Gold, Cohen, Zakarin & Kotler, P.A., Boca Raton, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Brian Kablitz filed a habeas corpus petition challenging as illegal his detention for violation of supervised release. This court earlier granted that petition, advising that an opinion would follow.

In this case, Kablitz is charged in Palm Beach County with aggravated stalking, throwing a deadly missile and making a false report of a non-existent crime. He was arrested and released on a $10,000 bond and conditions for supervised release. He posted that bond and was released. Kablitz is separately charged in another case pending in Palm Beach County. Apparently it was not known at the time that he was released that Kablitz had earlier committed the other separately charged and unrelated offenses. He was later arrested in that other case, and released on a $5,000 bond, which he also posted. At that time, he learned that there was a warrant for violation of his supervised release in this case. He filed a motion to review his custody status in this case, and explained to the court that he had not actually violated his supervised release because the other offense had occurred earlier than the time of his release in this case. This was not disputed. Thus, he could not have violated the conditions of his supervised release in this case. His counsel further advised the court that the clerk’s office apparently had made an error in stating the date of the other offenses, prompting the court to issue the warrant for violation of supervised release. Kablitz asked the court to withdraw the warrant for violation of supervised release and reinstate the bond as posted in this case. The trial judge denied that request, apparently agreeing with an argument made by the prosecutor that the other offense was new information not known by, or disclosed to, the judge at the time of the bond and supervised release in this case.

It is settled that a trial court may not increase a defendant’s bond “unless the state shows that the increase is warranted by information not available to the committing magistrate who set the initial bond.” Montgomery v. Jenne, 744 So.2d 1148, 1149 (Fla. 4th DCA 1999); see also Homerding v. Jenne, 804 So.2d 349, 349 (Fla. 4th DCA 2001). Here, the trial court did not actually increase or revoke the earlier imposed bond, but rather it denied release and discharge of a warrant for violation of supervised release, which both petitioner and the state conceded was factually erroneous. It was undisputed that petitioner did not violate the conditions of his release in this case based on the earlier committed offenses in the other case.

For these reasons, we previously granted the petition for writ of habeas corpus by order, and remanded this case to the trial court to dismiss or discharge the warrant for violation of supervised release, and to order Kablitz’s release on the bond and conditions already in place.

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


text:
    Benjamin COFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2248.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Coffield was convicted on two counts of lewd and lascivious battery. The record, however, does not support adjudication on separate counts because of the manner in which each act occurred in the course of a single sexual assáult. .. Therefore, Cof-field’s convictions on the two counts constituted a double jeopardy violation.

The evidence reflects that the thirteen year old victim met the twenty two year old defendant earlier in the day at a park. The two engaged in a conversation and each claimed to be sixteen. Coffield walked the victim home where, after the two conversed outside her apartment, the victim told Coffield that he should leave. Coffield agreed, so long as the victim gave him a hug. After the two engaged in hugging and kissing, Coffield brought the victim into a meter room within the apartment complex wherein, despite her telling him to stop, he both touched and inserted his penis into her vagina. The episode lasted about ten minutes. Coffield contended that he and the victim had consensual sex.

In this case, there is insufficient record support for a finding that Coffield formed a separate criminal intent as to each charged act. ■ In deciding whether multiple acts must be charged in a single count, we consider the spatial and temporal aspects of the surrounding circumstances in order to determine whether the defendant had time to “pause, reflect, and form a new criminal intent between occurrences.” Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001).

In Eaddy, the state charged that the touching of the victim’s breasts and her vagina during a sexual assault constituted two separate lewd acts. Id. at 1094. This court reversed a dual conviction, concluding that the appellant did not have adequate and sufficient time to pause, reflect and form a new criminal intent between touching the victim’s breasts and touching the victim’s vagina, so as to lawfully deem the acts distinctly separate. Id. at 1095. Similarly, in King v. State, 884 So.2d 311, 312 (Fla. 5th DCA 2003), the defendant attempted to have intercourse with the victim and fondled her breasts. On appeal, the court concluded that it was error to adjudicate the defendant of two counts of lewd and lascivious assault as the sex acts occurred in a single episode and location, with one act immediately following the other. Id. at 313.

Here, as in Eaddy and King, the sexual acts occurred almost simultaneously, with no temporal breaks, and without the requisite time for Coffield to pause and reflect in order to form a second criminal intent. Further, both sexual acts occurred at the same location and within an uninterrupted span of approximately ten minutes.

The circumstances here are clearly distinguishable from those in Saavedra v. State, 576 So.2d 953, 955 (Fla. 1st DCA 1991), where the defendant kidnaped the victim and engaged in three separate incidents of intercourse, all within the same night, but occurring at three distinct times and locations. There, the First District concluded that, whilfe the acts were of the same type, they were sufficiently separate because they occurred in different locations and at different times. Id. at 958. Therefore, the Saavedra perpetrators had enough time in between each sexual encounter to reflect on the last act and form a new criminal intent to commit the next sexual act. Id.

As to the other issues raised, we find no reversible error. We, therefore, reverse and remand with directions to vacate and set aside one of the convictions for lewd and lascivious battery.

KLEIN and TAYLOR, JJ., concur.


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    Charles M. WALDEN, Appellant, v. CHASE MANHATTAN BANK, USA, N.A., Appellee.
    No. 4D03-1718.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Mary Alice Gwynn of Mary Alice Gwynn, P.A., Delray Beach, for appellant.
    Steven Michael Staes of Seyfarth Shaw LLP, Atlanta, for appellee.
   MAY, J.

Charles Walden appeals a summary judgment against him and in favor of Chase Manhattan Bank. Among other issues, he argues that the trial court erred in not considering the affidavits submitted with the motion for rehearing. We agree and reverse.

Chase sued Walden for monies owed on credit card accounts. Walden filed an answer and affirmative defenses, one of which raised Chase’s alleged failure to properly perform an audit of Walden’s accounts once notified of discrepancies.

Chase moved for summary judgment. Walden filed his wife’s affidavit, attesting to her familiarity with the specific credit card accounts and that she sent several letters to Chase disputing the charges. She also attested to the specific contents of some of her letters to Chase. The letters, which should have been attached to the affidavit, were mistakenly attached to Walden’s response to the motion for summary judgment. At the hearing on the motion, the court refused to consider the wife’s affidavit as a whole because the letters were not attached to the affidavit. The court entered summary judgment for Chase.

Walden moved for rehearing and corrected the clerical error, this time attaching the letters to the affidavit. In addition, he submitted three supplemental affidavits addressing the audit defense. The trial court denied the motion for rehearing.

An order granting summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). Summary judgment should only be granted when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. • Id.

In this case, Walden raised an affirmative defense that Chase failed to perform an audit, pursuant to 15 U.S.C. § 1666(a)(3)(B)(ii). Chase filed an affidavit attesting that Walden never objected to the billing statements, and therefore never triggered the statutory audit. Walden countered with his wife’s general attestation that she wrote several letters to Chase, objecting to certain billings on . the statements. Regardless of whether the actual letters were attached to the wife’s affidavit or whether the attestations contained within the affidavit regarding the contents of her letters could be considered, the general attestation by itself created a genuine issue of material fact preventing the entry of summary judgment. See Humphrys v. Jarrell, 104 So.2d 404, 409 (Fla. 2d DCA 1958) (where an affidavit contains inadmissible matter, the court should not disregard the whole affidavit, only the portion containing inadmissible evidence).

A summary judgment is not final until a motion for rehearing is considered. Elser v. Law Offices of James M. Russ, P.A., 679 So.2d 309 (Fla. 5th DCA 1996). Not only did the wife’s affidavit raise a genuine issue, the subsequent correction of the clerical error and the supplemental affidavits filed with the motion for rehearing further supported the existence of a genuine issue of material fact regarding the audit defense. As such, the trial court erred in granting the motion for summary judgment and denying Walden’s motion for rehearing.

We find no merit in the other issues raised. The summary judgment is reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

POLEN, J. and DAMOORGIAN, DORIAN, Associate Judge, concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. The Interest of E.E., R.B. and J.K., minor children, Respondents.
    No. 4D04-663.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Crystal Y. Yates-Hammond, Fort Pierce, for petitioner.
    No response for respondent.
   PER CURIAM.

We deny the petition for writ of prohibition seeking disqualification of the trial judge because of prejudice. The motion to disqualify the trial judge, filed by the Department of Children and Family Services in the trial court, was legally insufficient because it was not sworn to by the Department or its representative. See Fla. R. Jud. Admin. 2.160(c) (“A motion to disqualify shall be in writing and specifically allege the facts and reasons relied on to show the grounds for disqualification and shall be sworn to by the party by signing the motion under oath or by a separate affidavit.”). The affidavit attached was signed by an individual whose connection with the case is unknown, but she is not designated as a representative of the Department.

GUNTHER, WARNER and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    Jimell SHINGLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-672.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Jimell Shingles was charged with robbery with a firearm for events occurring on December 4, 2001. Shingles filed a motion to suppress his confession and another to suppress evidence obtained upon a warrantless search of a room he occupied in his grandmother’s home. The trial court denied both motions.

Shingles entered a nolo contendere plea reserving his right to appeal the denial of his motions to suppress. The state and the trial court agreed that the motions,' if both were reversed, were dispositive of the entire case. In accordance with the negotiated plea, the trial court sentenced Shingles' to ten years with a ten-year minimum mandatory pursuant to sections 775.087(2) and (3), Florida Statutes (2001). We reverse the denial of the motions to suppress and remand to the trial court to discharge Shingles.

At the hearing on Shingles’s motions to suppress, Detective Charles Howard of the Wilton Manors Police Department testified that he had been called to investigate a robbery that occurred at a store located at 2349 N.W. 9th Avenue. The police had set up an observation sight at 3398 N.W: 23rd Court in Lauderdale Lakes where a car believed to belong to the suspect was located. Howard heard over his police radio that the suspect was getting into a car and starting to drive away. The Broward Sheriffs Office (BSO) effected the traffic stop and took Shingles into custody. Howard received information that Shingles was in custody and that he matched the description given by the victim of the crime.

When Howard arrived , on the scene of the traffic stop, Shingles had been formally arrested for armed robbery and was in the back of the BSO patrol car. After speaking with Detective Dicristofalo, Howard decided to take Shingles back to his home at 3398 N.W. 23rd Court. However, prior to going there Howard interrogated Shingles. He told Shingles that he had information that a firearm had been used in the robbery and asked Shingles the whereabouts of the gun. . Howard did not read Shingles his Miranda rights before questioning him and, as far as he knew, no one else had read Shingles his Miranda rights prior to his arrival. Shingles denied all knowledge of a robbery.

Shingles was transferred from the BSO patrol car to a Wilton Manors patrol car and taken back to the house the police had been surveilling. Howard again questioned Shingles about the firearm. However, he had still not advised Shingles of his rights under Miranda. Shingles again denied any knowledge of the robbery or the firearm. Howard then asked Shingles for permission to search his bedroom, but Shingles refused.

When Howard could not obtain permission from Shingles to search his room, he exited the patrol car, went up to the house, and obtained permission from Shingles’s grandmother to search the bedroom. Howard did not advise the grandmother that Shingles had refused Howard’s request to search his room. Howard found a black jacket on Shingles’s bed. Upon further search, he found a money order for $500, a firearm inside a case and “some type of bill” with Shingles’s name on it in the top middle drawer of Shingles’s night stand. Neither the firearm nor the money order were in plain sight. Shingles remained handcuffed in the back of the patrol car parked outside the house while Howard performed the search. Howard claimed that he was prepared to get a search warrant if necessary, but admitted that in order to obtain a search warrant, he would first have to have probable cause. At that point in time, Howard only had information that someone matching the suspect’s description had been inside the house, and a vehicle matching the suspect’s vehicle was parked across the street from the house. Howard had no information that the firearm or the money order were inside Shingles’s room.

Howard took the evidence recovered from Shingles’s house to the victim who identified the money order, firearm, and jacket. Later that day, Howard spoke with Shingles at the police station where he was being held. Howard estimated that he talked to Shingles for approximately fifteen minutes. Howard did not read Shingles his Miranda rights prior to this questioning. Howard testified that he told Shingles that he had recovered the gun and money order and asked him why he did it. Howard told Shingles that he did not need Shingles’s statement, but he would be more than happy to take one if Shingles wanted to explain himself. Shingles finally agreed to give a taped statement. At no time prior to taking Shingles’s taped statement did Howard ever read Shingles his Miranda rights. Nor did Howard obtain a written waiver of rights from Shingles. Howard admitted that he knew that Shingles had never been arrested before. Shingles was finally-read his Miranda rights as his taped statement was being taken. During the taped statement, Shingles admitted that he had committed the armed robbery.

Shingles’s grandmother, Ms. May Chance, testified that she had lived at 3398 N.W. 23rd Court for sixteen years and Shingles had lived in that bedroom virtually the entire time. Chance said that Shingles shared his bedroom with her son, Timothy, when her son stayed at her home. Timothy had been living there “on and off’ for about a year. Chance said that she was able to enter Shingles’s bedroom any time she wanted to. Chance also testified that Shingles paid her $50 a week when he was working, but had not paid her recently because he had been out of work. Chance explained that she did consent to the police searching Shingles’s room, but when she consented, she was not aware that Shingles had refused to authorize the search.

A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness with regard to the trial court’s determination of the historical facts. Appellate courts, however, independently review mixed questions of law and fact that ultimately determine constitutional issues arising -in the context of the Fourth and Fifth Amendments. See Connor v. State, 803 So.2d 598, 608 (Fla.2001). Therefore, although we must defer to the trial court’s factual findings, we must independently determine de novo whether the warrantless search of Shingles’s- room constituted an illegal search and seizure and whether the taped confession was made willingly and voluntarily.

We first address the issue of the search of Shingles’s bedroom; Shingles asserts that his grandmother could -not give vaiid consent to the search of his room because he was present and had refused his consent. The state responds that Shingles’s grandmother, as the owner of the house, was authorized to give consent for the search.

The state asserts that the Florida Supreme Court’s decision in Preston v. State, 444 So.2d 939 (Fla.1984), sentence vacated on other grounds, 564 So.2d 120 (Fla.1990), supports the trial court’s denial of the motion to suppress the evidence. In Preston, the defendant argued that valid consent had not been, given by his mother to the warrantless search of his room. During the search, - the police found a jacket left in the open and food stamps which were in a garbage can. These items produced incriminating evidence that assisted in proving that Preston was guilty of murdering a night clerk at a convenience store.

Preston’s mother had access to her son’s room to clean it and Preston did not lock his room or take any other precautions that exhibited an expectation of privacy in the articles left out in the open in the room. The court concluded that he had no reasonable expectation of privacy in the items which the mother would have had access to within the regular, scope of. her cleaning activities, that is, out in the open and in the garbage can. Id. at 943.

The court in affirming the fifth district’s reversal of the trial court’s granting of the motion to suppress quoted with approval from the district court’s opinion:

The mother here had access for purposes of doing laundry. The jacket, an article of clothing, was left out in the open; The food stamps were found in a wastebasket, another area over which the mother had access. In addition, there is no reasonable expectation of privacy in regard to articles thrown into the garbage or abandoned. This was not a closet or a bureau drawer, and we respectfully disagree with the trial court.

Id. .

In citing to Preston,- the state relies on the facts that indicate that Shingles’s grandmother had common authority to permit the search. The state totally disregards Shingles’s presence at the scene and his refusal to consent to the search and disregards the fact that in Preston, the evidence seized -was not in a closet or bureau drawer but out in the open with some of the evidence thrown into the garbage or abandoned. Further, the state fails to distinguish the holding in Silva v. State, 344 So.2d 559 (Fla.1977), wherein the supreme court held: .

It is only reasonable that the person whose property is the object of a search should have controlling authority to refuse consent. His rights are personal to him and derive from the United States Constitution. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Though a joint occupant should have authority to consent to a search of jointly held premises if the other party is unavailable, a present, objecting party should not have his constitutional rights ignored because of a leasehold or other property interest shared with another. This is particularly true where the police are aware that the person objecting is the one whose constitutional rights are at stake.

Id. at 562-63.

In the instant case, Shingles was a joint occupant whose constitutional rights were at stake. He was not unavailable, but was present and refused to consent to the search. Therefore, the warrantless search was illegal. See Pinyan v. State, 523 So.2d 718, 721 (Fla. 1st DCA 1988) (a joint occupant or one sharing dominion and control over the premises, may provide consent only if the other party is not present); see also Lawton v. State, 320 So.2d 463 (Fla. 2d DCA 1975) (assuming estranged wife had sufficient control over the premises as to authorize her consent to a search, the search cannot stand because the estranged husband was physically present on the premises and objected to the search); Padron v. State, 328 So.2d 216 (Fla. 4th DCA 1976) (assuming a sixteen-year-old child shared common authority with his father over the premises of a common dwelling place, where the father was pres-ént and objected to the search, the son had no authority to override that objection).

The only case in Florida that directly holds that a search of a person’s room; within a household owned by another, does not constitute an illegal search and seizure, even though the person whose room is searched is both present and objects to the search is State v. S.B., 758 So.2d 1253 (Fla. 4th DCA 2000). The facts in S.B. are distinguishable from the instant case.

In S.B., the father of S.B., after being informed by the police that S.B. was selling drugs and weapons, consented to the police searching S.B.’s bedroom. Because S.B. objected to the search the trial court granted SJB.’s motion to suppress. This court held that by virtue of his parental authority, the father’s consent overrides the juvenile’s objection and we reversed the granting of the motion to suppress. In distinguishing the cases of Silva and United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (the consent of one who possesses common authority over premises or effects is valid as against the absent nonconsenting person with whom the authority is shared), this court stated:

Those cases, however, did not involve the issue of whether a parent could validly consent to a search where the object of the search was the room of a minor who was objecting. Although this appears to be a question of first impression in Florida,'the majority of courts which have considered the .issue have held that a parent can consent to a search of a juvenile’s room even though the juvenile objects ... [W]e analyze [the present case] as containing two issues: (1) whether the non-resident father, by virtue of his ownership and authority to enter the home, could consent to a search of the home, and (2) whether the search of the minor son’s bedroom over the son’s objection was valid based on the father’s consent. According to the transcript, the trial court concluded that the father, under these specific facts, generally had authority to consent to a search of the home. We agree. We disagree with the trial court that the objection by the son precluded a search of the son’s bedroom and follow those cases from other jurisdictions upholding the search on the basis of parental relationship.

S.B., 758 So.2d at 1254-55.

In the instant case, Shingles was not a minor. Although he was residing in a room in his grandmother’s house, there is no “parental relationship” of the type envisioned in S.B. Furthermore, Shingles, according to the testimony of the grandmother, periodically had paid $50 a month rent for use of the bedroom.

As an alternative basis to affirm the trial court’s denial of the motion to suppress the evidence, the state argues that the trial court denied the motion to suppress the evidence on the additional ground of inevitable discovery, i.e., Howard was prepared to obtain a search warrant and therefore, even if the warrantless search was illegal, the trial court’s denial of the motion to suppress should be affirmed. We disagree.

Howard had an insufficient factual basis to establish the necessary probable cause to obtain a valid search warrant of the home and specifically, Shingles’s room. At the time of Shingles’s arrest, he was a suspect who had not been positively identified by the victim. His only other connection to the robbery was that he was seen getting something out of the getaway ear that was parked across the street, from his grandmother’s house. Additionally, Howard testified that he had no idea where the firearm might be located.

We now turn our attention to the trial court’s denial of the motion to suppress Shingles’s confession. Shingles argues that the statements should be suppressed as fruit of the poisonous tree, i.e., a result of his being presented with the evidence found in the house after the illegal search. We agree.

We find the third district’s opinion in Smith v. State, 465 So.2d 603 (Fla. 3d DCA 1985), to be persuasive on this issue. The facts of Smith are strikingly similar except for the fact that the crime involved in Smith was a homicide. Following the shooting death of Smith’s niece’s boyfriend, Smith was taken to the police station and questioned regarding his involvement in the incident. Smith denied shooting the victim and refused permission to conduct a warrantless search of his home. After Smith’s refusal, and while he was undergoing questioning at the police station, a detective spoke to the sister with whom Smith lived and obtained her consent to search the premises. During the. course of the search, the police discovered a gun, rubber gloves, and a shirt in the attic of the house. Several days later, Smith was again taken to the police station for questioning. When confronted with the fact that the gun believed to have killed the victim had been found in the attic of his home, Smith confessed to the homicide. Smith filed a motion to suppress the evidence seized from the attic and to suppress the confession. The trial court denied the motion and the case proceeded to trial, culminating in a jury verdict of guilty.

Smith argued that the trial court erred in denying his motion to suppress the physical evidence and the confession obtained as a direct result of an unlawful search. Emphasizing that the search of the home in which he' lived with his sister focused on his property, he maintained that his refusal of permission to search invalidated his sister’s subsequent consent. Thus, he argued that the warrantless search was unreasonable, and the evidence and confession were unlawfully obtained. The third district agreed and reversed. In arriving at this conclusion the third district stated:

Although joint occupants may consent to a search of .their premises, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Silva v. State, 344 So.2d 559 (Fla.1977), where consent is refused by the party against whom the search is directed, any subsequent consent by the other joint occupant is invalid. Silva. See Pugh v. State, 444 So.2d 1052 (Fla. 1st DCA 1984); Lawton v. State, 320 So.2d 463 (Fla. 2d DCA 1975).

Id. at 604.

The third district concluded the search was unlawful and the evidence obtained as a result of the search must be suppressed. It also held that Smith’s confession, obtained when the police confronted him with the fact that they had conducted a war-rantless search despite his objection and had seized incriminating evidence, must also be suppressed. See Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); French v. State, 198 So.2d 668 (Fla. 3d DCA 1967).

The state argues that this court’s decision in Jetmore v. State, 275 So.2d 61 (Fla. 4th DCA 1973), supports the argument that the statement given by Shingles was not the fruit of a poisonous tree because the trial court could have reasonably decided that the statement was the result of a voluntary exercise of free will. In Jet-more, the trial court ruled that Jetmore had been subjected to an illegal arrest and tangible evidence obtained pursuant to the illegal arrest was suppressed. Jetmore also sought to suppress his confession because the arrest and. search were illegal. At the suppression hearing concerning the confession, Jetmore testified that shortly after his arrest, he was taken to the police station where he was advised in detail of his Miranda rights and understood his rights, having been given them on a prior occasion and that he confessed because he had come to the conclusion that the police had sufficient evidence to convict him anyway. Jetmore, 275 So.2d at 68.

In affirming the denial of the motion to suppress Jetmore’s confession, our court concluded:

The present statement, although given only forty-five minutes after the arrest, was quite obviously given freely and voluntarily and after a full and complete Miranda warning which the defendant expressly stated he understood. Thus it seems to us that the trial court had the factual basis before it from which it could reasonably have found that defendant’s statement was the result of a voluntary exercise of free will and independent of the illegal search and seizure.

Id. at 64.

The facts in Jetmore are distinguishable from the facts in the instant case. Shingles was convinced to give an incriminating statement only after Howard confronted him with the evidence. Prior to that, he had denied any involvement. When the tape began running, only then was he advised of his Miranda rights. We find the third district’s opinion in Smith to be on point in light of the facts of the instant case. We, therefore, reverse the trial court’s denial of both motions to suppress, and we remand to the trial court to discharge Shingles.

STONE and STEVENSON, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At the hearing, Howard acknowledged each time Shingles was interrogated, he was under arrest and in custody.

      . The purpose of the inevitable discovery exception to the exclusionary rule is to protect evidence obtained illegally where a concurrent legal investigation would, assuredly have procured the identical evidence. See State v. LeCroy, 435 So.2d 354 (Fla. 4th. DCA 1983).