author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Russell D. BELL, Appellee.
    No. 2D03-1923.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    C. Ray McDaniel of C. Ray McDaniel, P.A., Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order suppressing all evidence and statements related to the seizure of 114 alligators. Because the trial court applied the wrong legal standard in deciding to suppress the evidence, we reverse and remand.

Around 11:30 p.m. on April 8, 2001, officers of the Florida Fish and Wildlife Conservation Commission (Wildlife officers) received a report that gunshots had been fired in the area they were patrolling. In the predawn early morning hours of April 9, 2001, they traveled to a nearby boat ramp and waited. Ultimately, they saw Bell exiting an airboat carrying two bags, the contents of which the officers could not ascertain from their vantage point. One of the officers shouted either “Wildlife officer” or “Stop, Wildlife officer.” In response, Bell dropped the two bags he was carrying and walked toward the officer. The officer then turned on his flashlight and saw that the bags, which were mesh, contained live baby alligators. Shortly thereafter, the other officer discovered two more mesh bags of alligators on the air-boat. The alligators were visible to him and were making audible distress sounds. Based on these discoveries, Bell was arrested and charged with 114 counts of possessing or capturing an alligator in violation of section 372.663, Florida Statutes (2001).

Bell moved to suppress all evidence and statements relating to this search and seizure. The trial court conducted an eviden-tiary hearing, considered argument by counsel, and reserved ruling. Thereafter, relying upon a probable cause standard, the trial court entered an order suppressing “any statements made and evidence seized as a result of’ Bell’s detention.

The trial court’s use of the probable cause standard was error. Although probable cause is required before a war-rantless arrest can be made, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), it is not required for an investigatory stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). All that is required for an investigatory stop is reasonable suspicion to believe that the individual has committed, is committing, or is about to commit a crime. Id.; § 901.151, Fla. Stat. (2001). When the Wildlife officer shouted, “Stop, Wildlife officer,” he commenced, at most, an investigatory stop, not an arrest. For that investigatory stop to have been valid, therefore, only reasonable suspicion was required, not probable cause.

It appears from the record that the trial court was confused because the State relied upon State v. Pearce, 318 So.2d 455 (Fla. 1st DCA 1975). Pearce involves a somewhat similar stop by a Wildlife officer but under circumstances where the trial court was required to assess the correctness of an arrest under the probable cause standard. In addition to Pearce, however, the assistant state attorney relied upon Terry, explaining that “[w]e are all familiar with Terry v. Ohio. I don’t have to go into that.”

It is not uncommon for lawyers and judges to intermingle the phrases, “reasonable suspicion” and “probable cause.” Often such loose language does not affect the legal analysis. In this case, however, we are convinced that the trial court actually employed a probable cause standard when reasonable suspicion was the correct standard. We therefore reverse the order of suppression and remand for further proceedings in which the trial court must determine whether, under the totality of the circumstances, the Wildlife officers had reasonable suspicion to stop Bell. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); State v. Deferance, 807 So.2d 806 (Fla. 4th DCA 2002).

We also note that it is not clear to this court whether the trial court has actually decided that the alligators were seized “as a result of’ the stop. These alligators were visible and audible through the mesh bags. The two bags that were still in the boat at the time Bell was detained were not under his immediate control. The boat was moored at a public dock. From the record, it would seem that these alligators were visible in plain view to anyone at the dock who possessed a flashlight. See Pagan v. State, 830 So.2d 792, 808 (Fla.2002) (setting forth the requirements for the plain view exception to the warrant requirement). There was another man in the boat who had received no orders from the officers when the alligators in the boat were discovered. It seems that the officers were inevitably going to see and hear these alligators even if they performed no investigatory stop. See Moody v. State, 842 So.2d 754, 759 (Fla.2003) (explaining that, under inevitable discovery doctrine, evidence may be admitted if an independent source would lead to its discovery). Thus, it is not clear to this court that all of the alligators were seized as the fruit of an illegal detention. On remand, the trial court may need to clarify the scope of suppression if it again decides to suppress evidence.

Reversed and remanded.

ALTENBERND, C.J., and KELLY, J., Concur.

      . We note that the record contains other facts relevant to the trial court's probable cause analysis, but we recite only those facts relevant to our conclusion that the encounter between Bell and the Wildlife officers was at best an investigatory stop and not an arrest.

      . We reject the State's argument that the trial court was compelled to treat the encounter between Bell and the Wildlife officer as a consensual citizen encounter. The trial court was free to conclude, under all the circumstances, that the officer's verbal command to Bell to stop would have caused a reasonable person to conclude he was not free to leave. See State v. Wilson, 566 So.2d 585, 587 (Fla. 2d DCA 1990).


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Demetrius JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2151.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

While an inmate in the Hillsborough County Jail, Demetrius Johnson possessed a pipe containing cocaine residue. Based on this, Johnson was convicted of possession of cocaine, possession of contraband (cocaine) in a state facility, and possession of paraphernalia. We affirm in part, reverse in part, and remand for resentenc-ing.

Johnson argues that he could not be convicted of possession of contraband in a state facility because he was confined in a county jail. Under section 944.47, Florida Statutes (2002), possession of a controlled substance in a state correctional facility is a second-degree felony. But under section 951.22, Florida Statutes (2002), possession of a controlled substance in a county detention facility is a third-degree felony. Here, Johnson was charged with possessing contraband in a “State Correctional Institution, to-wit: The Hillsborough County Jail.” The information recited section 944.47(l)(e) as the applicable statute, but it labeled the offense a third-degree felony. Johnson did not raise this issue below, and there is no indication from the record that this discrepancy hampered the preparation of Johnson’s defense.

Florida Rule of Criminal Procedure 3.140(d)(1) requires that each count of an information “allege the essential facts constituting the offense charged. In addition each count shall recite the official or customary citation of the statute ... that the defendant is alleged to have violated.” The information against Johnson alleged the essential facts constituting possession of contraband in a county detention facility but recited a different statute. Rule 3.140(d)(1) further provides that “[ejrror in ... the citation shall not be ground ... for a reversal of a conviction based thereon if the error ... did not mislead the defendant to the defendant’s prejudice.” Johnson does not argue that he was misled or prejudiced by the error. Therefore, we remand for correction of the judgment to reflect a conviction for possession of contraband in a county detention facility under section 951.22, which is the conviction supported by the factual allegations in the information and by the evidence introduced at trial. See Mosely v. State, 688 So.2d 999, 999-1000 (Fla. 2d DCA 1997) (“An erroneous reference to the statute in the information is not fatal to conviction if the information properly pleads the necessary elements of the offense.”).

Johnson also argues, and the State concedes, that double jeopardy was violated by his two convictions for possessing the same cocaine. See Desire v. State, 829 So.2d 948 (Fla. 4th DCA 2002); Turner v. State, 661 So.2d 93 (Fla. 5th DCA 1995); Rozier v. State, 620 So.2d 194 (Fla. 1st DCA 1993). Because the convictions for possession of contraband in a county detention facility and possession of cocaine were based on the same cocaine residue that was found in the pipe, we reverse the conviction for possession of cocaine.

Johnson raises a final issue regarding jury selection, but we see no abuse of discretion and affirm. See Files v. State, 613 So.2d 1301 (Fla.1992).

In sum, we reverse Johnson’s conviction for possession of cocaine. We affirm his conviction for possession of drug paraphernalia. We remand for correction of the judgment to reflect that Johnson was convicted of possession of contraband in a county detention facility and for resentenc-ing.

WHATLEY and KELLY, JJ., Concur.


author: STRINGER, Judge.

text:
    Travis TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5805.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

' Travis Turner seeks review of the final judgment and sentence adjudicating Turner guilty of two counts of robbery and two counts of aggravated battery with great bodily harm to victims over sixty-five and the subsequent revocation of Turner’s probation. Because the verdict and judgment are supported by substantial competent evidence, we affirm without comment the conviction and the revocation of probation based on the conviction. However, because the written order of revocation of probation does not conform to the trial court’s oral pronouncement, we remand with directions that the revocation order be corrected to conform to the oral pronouncement.

Following sentencing, the trial court announced that it was revoking Turner’s probation for four violations of condition 5 based on Turner’s new conviction in this case. However, the written order of revocation of probation states that probation was revoked for one violation of condition 1, two violations of condition 3, three violations of condition 8, one violation each of conditions 15 and 17, and eight violations of condition 5.

A written order of revocation of probation must conform with the trial court’s oral pronouncement. Williams v. State, 764 So.2d 757 (Fla. 2d DCA 2000). Accordingly, we remand with directions that the order of revocation be corrected to conform to the trial court’s oral pronouncement.

COVINGTON and VILLANTI, JJ., concur.


author: DAVIS, Judge.

text:
    Ivory Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5551.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
   DAVIS, Judge.

Ivory Lee Thompson challenges the summary denial of his motion for posteon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion and amendment, he brought a total of eight claims. We affirm without comment the summary denial of the seven claims brought forth in his original motion. We reverse the summary denial of the sole claim brought forth in his amendment and remand for the circuit court to hold an evidentiary hearing.

Thompson claims that his trial counsel was ineffective for failing to notify the trial judge that a juror was sleeping during “critical testimony.” The circuit court denied the claim as facially insufficient, finding that Thompson did not properly allege both that he was prejudiced and that the testimony was critical. We agree with the First District in concluding that “under Florida law, the appellant’s claim is facially sufficient where he alleged that his counsel failed to notify the court that a juror was sleeping during testimony.” Wilson v. State, 828 So.2d 1086, 1086 (Fla. 1st DCA 2002); see also Kelley v. State, 805 So.2d 88 (Fla. 2d DCA 2002); Bieser v. State, 677 So.2d 59 (Fla. 1st DCA 1996).

Accordingly, we reverse the summary denial of this claim and remand to the circuit court for an evidentiary hearing to determine whether Thompson’s counsel was ineffective for failing to inform the trial judge that a juror was asleep during the presentation of evidence.

Affirmed in part; reversed in part; and remanded.

KELLY and VILLANTI, JJ., Concur.


author: PER CURIAM.

text:
    Fred BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5012.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.
   PER CURIAM.

Affirmed. See Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003) (en banc). As this court did in Wright, we certify direct conflict with Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); and Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

Affirmed; conflict certified.

DAVIS, CANADY, and VILLANTI, JJ., Concur.


author: WARNER, J.

text:
    Daniel SIMMONDS, Petitioner, v. The STATE of Florida, Respondent.
    Nos. 4D03-4539, 4D03-4546.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.

      Gary Kollin of Gary Kollin, P.A., Ft. Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   WARNER, J.

Petitioner requests a writ of prohibition to prevent his further prosecution after the trial court denied his motion for discharge in which he alleged a violation of his constitutional speedy trial rights. Petitioner alleges that he was unaware of the charges filed against him over three years ago. He claims that presumptive prejudice was proven by this three-year delay, necessitating the court to conduct an inquiry under Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), as to the reason for the delay and to dispel the presumptive prejudice to the defendant. See Madonia v. State, 648 So.2d 260, 261 (Fla. 5th DCA 1994). However, while petitioner alleges that he was unaware of the charges and was always available and working under his own name, his petition is not sworn, nor was any testimony offered at the hearing as to his availability for service of an arrest warrant during the three-year interlude. The state did not stipulate to these facts, and therefore we cannot presume them true for the purposes of the motion for discharge. Although we would agree that a Doggett inquiry would.be triggered by evidence establishing the facts as alleged in the motion for discharge, without such evidence the court did not err in denying the motion. We distinguish Madonia because there the facts, nearly identical to the alleged facts of this case, were established in an evidentiary hearing. See 648 So.2d at 261. We therefore deny the petition but do so without prejudice to petitioner refiling a properly sworn petition and requesting an evidentiary hearing.

FARMER, C.J., and MAY, J., concur.


author: BROWNING, J.

text:
    James G. GLASGOW, Appellant/Cross-Appellee, v. Elvira B. WOLFE, Appellee/Cross-Appellant.
    No. 1D03-2891.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      Kristin Adamson, of Novey, Mendelson & Adamson, Tallahassee, for Appellant.
    Lawrence C. Datz, of Datz & Datz, P.A., Jacksonville, for Appellee.
   BROWNING, J.

James G. Glasgow, Jr. (Appellant/Cross-Appellee), appeals certain rulings made by the trial court in its final judgment of paternity, and Elvira B. Wolfe (Appel-lee/Cross-Appellant) cross-appeals the trial court’s failure to hold a hearing or to make specific factual findings in support of wholly denying her motion for attorney’s fees. Having found competent, substantial evidence in the record to support the court’s awarding primary residential custody of the parties’ minor child to Appel-lee/Cross-Appellant, the child’s mother, pursuant to the factors enumerated in section 61.13, Florida Statutes (2001), we find no abuse of discretion and affirm, without further discussion, those rulings relating to primary residency and child-support obligations. See Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003) (stating that trial court’s factual findings in final judgment in family-law proceeding came to appellate court with presumption of correctness and could not be disturbed absent a record demonstrating reversible error); Porzio v. Porzio, 760 So.2d 1075, 1076 n. 1 (Fla. 5th DCA 2000) (noting that role of fact-finder is to weigh credibility of witnesses and to resolve evidentiary conflicts, and that on truly discretionary matters, appellate court must recognize trial court’s “superior vantage point”). However, given the lack of specific findings of fact in the final judgment and the absence of any apparent basis in the record for denying all of Appellee/Cross-Appellant’s attorney’s fees, we reverse and remand for the trial court to make appropriate findings to explain its ruling on the motion for attorney’s fees. See Davies v. Turner, 802 So.2d 1195 (Fla. 1st DCA 2002); Karpovich v. Karpovich, 739 So.2d 137 (Fla. 5th DCA 1999); Hamlin v. Hamlin, 722 So.2d 851 (Fla. 1st DCA 1998); Raehn v. Raehn, 557 So.2d 152, 155 (Fla. 1st DCA 1990).

Section 61.16(1), Florida Statutes (2001), authorizes an award of attorney’s fees, suit money, and costs “after considering the financial resources of both parties.” “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel” in the equitable arena of family-law proceedings. Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). See Bane v. Bane, 775 So.2d 938 (Fla.2000); Sumlar v. Sumlar, 827 So.2d 1079, 1084 (Fla. 1st DCA 2002). “This provision expressly requires the court to make findings regarding the parties’ respective financial needs and abilities to pay.” Sumlar, 827 So.2d at 1084. See Raehn, 557 So.2d at 152; Stewart v. Stewart, 534 So.2d 807 (Fla. 1st DCA 1988). Without holding a hearing, the trial court determined that neither party is entitled to an award of attorney’s fees and costs, but the final judgment of paternity lacks any specific factual findings to support that ruling.

In this appeal, the parties’ respective incomes are essentially undisputed. The trial court found that Appellee/Cross-Appellant’s gross monthly income (as reflected on her financial affidavit) was $2,090.00. Appellant/Cross-Appellee testified that he had not been employed since leaving the United States Marine Corps in February 2000; he had not made any genuine effort since September 2000 (when Appellee/Cross-Appellant moved out with the parties’ child) to find a full- or part-time job. Citing AppellanVCross-Appel-lee’s financial affidavit, the court initially calculated his gross monthly income as $2,151.00. Relying partly on the testimony of a vocational rehabilitation counselor concerning the job statistics for metropolitan Jacksonville, the court found that Ap-pellanVCross-Appellee could earn $6.50-$8.00 hourly in an entry-level job. The court imputed to him income in the amount of $6.50 an hour, $260.00 a week, and $1,118.00 a month gross, resulting in regular and imputed gross monthly incomes totaling $3,269.00.

The parties’ financial affidavits offered the only evidence regarding their respective net monthly incomes. The difference between Appellani/Cross-Appellee’s listed monthly income and expenses is a $473.67 surplus. Subtracting his total debts from his total assets showed a total net worth of $36,131.00. Appellee/Cross-Appellant’s listed total monthly expenses exceeded her net income, producing a monthly deficit of $656.12. The difference between her total assets and total debts is negative $4,818.00. Of the parties’ net available income, Appellant/Cross-Appellee had 59% and Appellee/Cross-Appellant had 41%. Appellant/Cross-Appellee received retirement income, had income imputed to him, and had a superior net worth, whereas Appellee/Cross-Appellant had a lower income, virtually no assets, and substantial liabilities. Neither party had high income-producing assets or owned his or her own residential home, although Appellant/Cross-Appellee owned a $435.59 monthly rent-producing condominium in Maryland. Given the disparity in the parties’ incomes and other financial circumstances, the trial court is required to explain its denial of any attorney’s fees to Appellee/Cross-Appellant. See Nichols v. Nichols, 519 So.2d 620 (Fla.1988); Hamlin, 722 So.2d at 852.

We AFFIRM the final judgment of paternity in part, REVERSE in part, and REMAND for the trial court to make specific factual findings to support and explain its ruling on Appellee/Cross-Appellant’s motion for attorney’s fees.

ERVIN and DAVIS, JJ., concur.


text:
    E.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4048.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer and Theresa A. Flury, Assistant Public Defenders, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, E.W., appeals from the trial court’s denial of his motion for judgment of acquittal of the offenses of trespass on school property and resisting arrest without violence. The trial court found appellant guilty of both offenses, but withheld adjudication of delinquency, and imposed sanctions which included probation and 120 hours of community service. We reverse the determination ■ of guilt as to the trespass charge. In all other respects, we affirm the trial court’s ruling.

Because a motion for judgment of acquittal presents an issue of law, the trial court’s ruling is reviewed on appeal by the de novo standard of review. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). “To overcome a motion for judgment of acquittal, the state must have put forth evidence of each element in each crime.” See K.S. v. State, 840 So.2d 1116 (Fla. 1st DCA 2003).

The statute applicable, section 810.097(1), Florida Statutes (2002), provides:

810.097 Trespass upon grounds or facilities of a school; penalties; arrest.—
(1) Any person who:
(a) Does not have legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property; or
(b) Is a student currently under suspension or expulsion; and who enters or remains upon the campus or any other facility owned by any such school commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The elements of trespass upon school property are: (1) entering or remaining on school property, (2) without legitimate business, authorization, license, or invitation to enter or remain; or (1) entering or remaining on school property, (2) by a student who has been suspended or expelled. The “legitimate business” which would entitle one to enter or remain upon school property refers to any purpose for being there which is connected with the operation of the school. See A.C. v. State, 538 So.2d 136, 137 (Fla. 3d DCA 1989). See also J.H. v. State, 625 So.2d 883 (Fla. 1st DCA 1993).

In the instant case, appellant, as an enrolled student at Second Chance School, clearly had legitimate business on school property, and therefore could not be found guilty of trespass. Viewing the evidence in the light most favorable to the state, see Jones, 790 So.2d at 1197, we consider the state failed to prove a violation of section 810.097, because the evidence is legally insufficient to establish that appellant remained unlawfully on school property. Appellant, who was 14 at the time of the incident, could not legally comply with the directions of the dean of the school to leave the school’s premises, in that the policy of the school was that no student under the age of 18 could lawfully leave the campus unless he or she had previously received parental consent. Attempts at contacting appellant’s mother were unsuccessful, and the record reflects that an underage student who leaves school property without such permission is subject to a ten-day suspension. Under the circumstances of this case, we conclude the evidence does not establish that appellant’s legitimate reasons to be on school property terminated unequivocally before the school resource officer arrested him for trespass.

We agree, however, that the record supports the trial court’s finding that appellant resisted arrest without violence. To support a finding of guilt for the offense of resisting arrest without violence, “the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” See S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). See also Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999). It is not necessary that the underlying criminal activity providing the basis for the arrest result in a charge or conviction; it is only necessary that the officer has a founded suspicion of criminal activity to make the detention. See State v. Dwyer, 317 So.2d 149, 150 (Fla. 2d DCA 1975). In other words, the “[f]acts constituting probable cause [for an arrest] need not meet the standard of conclusiveness and probability required to support a conviction.” See Seago v. State, 768 So.2d 498, 500 (Fla. 2d DCA 2000).

The record in this case shows that appellant pulled away from, and struggled with, the school resource officer, when the officer attempted to handcuff appellant. Once the dean of the school told appellant that his failure to leave the school property constituted trespass, the school resource officer reasonably could believe that there were valid grounds for appellant’s arrest, and thus the resulting arrest was not unlawful.

Accordingly, we REVERSE the determination of guilt with regard to the offense of trespass on school property, and AFFIRM the trial court’s disposition in all other respects.

ERVIN and BOOTH, JJ., and SMITH, Senior Judge, CONCUR.


text:
    Floyd Eugene MATHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5546.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his motion alleging ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant has stated a facially sufficient claim that his counsel was ineffective in failing to object to the trial court’s denial of his requested jury instruction on the justifiable use of nondeadly force, we reverse. All other issues are affirmed without further discussion.

Following a jury trial, the appellant was convicted and sentenced for aggravated battery by intentionally or knowingly causing great bodily harm, permanent disability, or permanent disfigurement. This Court affirmed his conviction and sentence, concluding that although the appellant was entitled to a requested jury instruction on the justifiable use of non-deadly force, his counsel failed to properly preserve the issue for appeal. Mathews v. State, 799 So.2d 265 (Fla. 1st DCA 2001).

In the instant rule 8.850 motion, the appellant alleges that his counsel was ineffective for failing to make a sufficient objection to the denial of the requested jury instruction. The appellant’s claim is facially sufficient because he alleged how his counsel’s performance was outside of the wide range of reasonable professional assistance, and how such conduct in fact prejudiced the outcome of the proceedings. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So.2d 52 (Fla.2003); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). As this Court previously explained, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Spencer, 842 So.2d at 61.

We, therefore, reverse the summary denial of the appellant’s claim for ineffective assistance of counsel and remand to the trial court to hold an evidentiary hearing on this issue.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ERVIN, BENTON, and LEWIS, JJ., concur.


text:
    James Arthur LEE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Appellees.
    No. 1D04-0680.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      James Arthur Lee, pro se, appellant.
    No appearance for appellees.
   ORDER IMPOSING SANCTION

PER CURIAM.

In this appeal, James Arthur Lee seeks review of an order of the Circuit Court for Bradford County which dismissed his mandamus complaint for failure to pay the filing fee or submit the paperwork necessary to obtain a waiver of that fee. Although this court’s fee has neither been paid nor waived, Lee filed a motion for injunctive relief against certain officials or staff members of the Florida Department of Corrections. In processing that motion, it came to this court’s attention that Lee has been an extremely active litigator in this court whose cases have required substantial expenditure of staff resources without any meaningful result. An order was issued which directed Lee’s attention to the fact that his 43 cases filed with this court since February 2002 had yielded no relief to him and asked him to show cause why he should not be barred from henceforth appearing in proper person before this court.

Further examination of this court’s records revealed 20 other cases filed with this court under the name “James A. Lee” rather than “James Arthur Lee” and that another proceeding has been commenced by Lee since the show cause order issued. Of these 64 cases, 50 have been dismissed for failure to pay the filing fee or for noncompliance with orders relating to service, appendices, or other administrative matters. Six cases have been transferred to other courts, seven cases are pending, and one petition for writ of mandamus was denied on the merits.

We have considered the response of appellant to the order to show cause but he has failed to demonstrate why the proposed sanction should not be imposed. See Martin v. State, 833 So.2d 756 (Fla.2002); Attwood v. Eighth Circuit Court, Union County, 667 So.2d 356 (Fla. 1st DCA 1995); Peterson v. State, 530 So.2d 424 (Fla. 1st DCA 1988). Accordingly, it is hereby ordered that James Arthur Lee, also known as James A. Lee, shall secure the filing of a notice of appearance by a member in good standing of the Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within ten days of date of this order, failing which such cases shall be dismissed. Further, the clerk of this court is directed to accept no further pro se filings from Lee; if received, they shall be returned to him without filing and with a reference to this order.

IT IS SO ORDERED.

ALLEN, PADOVANO and LEWIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    John Nicholas HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0200.
    District Court of Appeal of Florida, First District.
    May 13, 2004.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

John Nicholas Hill seeks reversal of his conviction for trafficking in cocaine in an amount of more than 200 grams but less than 400 grams on the ground that the trial court erred in denying his motion for a judgment of acquittal. We agree and reverse the conviction, and we remand for entry of a conviction for possession of cocaine.

The denial of a motion for a judgment of acquittal is reviewed under the de novo standard. State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999). The evidence adduced at trial revealed that Hill was arrested following execution of a search warrant in an apartment where he was found sleeping. Also sleeping in the apartment, in the same bedroom as Hill, was a female friend, Natasha Kyser, who was the leasor of the apartment. The search warrant referenced Donald Butler, the brother of Kyser, who was not in the apartment at the time of the search. Also referenced on the search warrant was an individual identified only as “Nick.” A police officer testified that Hill admitted to the nickname “Nick” after his arrest. Kyser was not named in the search warrant.

The evidence further revealed that two separate, sizable caches of cocaine were found; each was found hidden in voids under drawers in the bottom of a separate dresser. One of the caches consisted of powered cocaine and the other of “crack” cocaine. A smaller amount of powdered cocaine, .4 grams, was found on the window sill behind the bed where Hill and Kyser were found sleeping. On a dresser in that bedroom was found a scale and a wire whip, which was still in the store packaging. Police testified that such items were used in the manufacture and sale of crack cocaine. Another scale was found in a hall closet. Another whip was found in the kitchen. Plastic cups, which police said were frequently used to store processed cocaine as it hardened, were found in a kitchen cupboard. Small plastic bags, similar to the bags containing cocaine, were found in the kitchen garbage can.

At trial a police officer testified that, as police were searching the bedroom where the entire quantum of cocaine was found, Hill, who was in the living room with Kyser and a police officer, was heard to say, “they found it.” The appellant testified that during the search he heard the police officers say to each other “we found it” and then he turned to Kyser and asked “they found it?” While men’s clothing was found in the apartment, the prosecution did not establish at trial that the clothing was appellant’s. Hill’s fingerprints were not found in the apartment.

At the close of the State’s case, the defense moved for a judgment of acquittal arguing the prosecution had not proved all of the elements of constructive possession. The trial court denied the motion, noting that Hill’s statement, “they found it,” constituted sufficient proof to withstand a motion for a judgment for acquittal. The jury returned a verdict finding appellant guilty of trafficking in cocaine and possession of drug paraphernalia. Appellant has not appealed the latter conviction.

Appellant was convicted for trafficking more than 200 grams, but less than 400 grams, of cocaine in violation of section 893.135(l)(b)l.b., Florida Statutes (2002). As was explained in Earle v. State, 745 So.2d 1087, 1088-9 (Fla. 4th DCA 1999), the cocaine trafficking statute prohibits one from “knowingly” being “in actual or constructive possession” of a certain quantity of cocaine. Where, as in this case, a defendant was not in actual possession of cocaine, the State must establish constructive possession. Proof of constructive possession is established when a defendant does not have physical possession of contraband but (1) knows it is within his presence, (2) has the ability to maintain control over it, and (3) knows of the illicit nature of the contraband. Id.; see also Brown v. State, 428 So.2d 250, 252 (Fla.1983), and Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998). If contraband is found in a place that is in joint, rather than exclusive, possession of a defendant, the defendant’s knowledge of the contraband’s presence and the ability to control it cannot be inferred from the defendant’s proximity to the contraband, but must be established by independent proof. Earle, 745 So.2d at 1089; Brown, 428 So.2d at 252; Williams v. State, 724 So.2d 1214, 1215 (Fla. 4th DCA 1998). As was explained in State v. Law, 559 So.2d 187, 188-189 (Fla.1989), where the only evidence of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. See also Ogle v. State, 820 So.2d 1054, 1056 (Fla. 4th DCA 2002).

While the appellant was sleeping in a room where a small quantity of cocaine and drug paraphernalia were in open view, the larger caches of cocaine were hidden in dressers. Even viewing the evidence in a light most favorable to the State, the evidence did not prove that Hill was in constructive possession of the entire quantum of cocaine found on the premises. See Dupree v. State, 705 So.2d at 94. As Hill argues, his statement, “they found it,” could have referred to the small amount of cocaine found on the window sill. Moreover, Hill’s statement, even when coupled with the items in plain view, such as a wire whisk and scales, neither permits the inference that Hill knew of the presence of the entire amount of cocaine seized from the hidden locations in the apartment nor permits the inference that he controlled the entire amount. Earle, 745 So.2d at 1088-9. Accordingly, the trial court erred in its denial of the motion for a judgment of acquittal on the charge of trafficking in cocaine in an amount of more than 200 grams but less than 400 grams.

The evidence, however, does support a conviction for the lesser offense of possession of cocaine. So long as the evidence supports it, simple possession of cocaine is a permissive lesser included offense of trafficking in cocaine where the information alleges trafficking by sale, manufacture, delivery, or possession. Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993); see In Re Standard Jury Instructions, 723 So.2d 123, 125 (Fla.1998)(holding simple possession to be a category 2 lesser offense of trafficking). In the case before us, the information charged that Hill did sell, purchase, manufacture, deliver, or bring into the state or did have actual or constructive possession of cocaine. The jury was instructed on the lesser offense of simple possession.

Therefore, the judgment of conviction for trafficking is reversed, the sentence therefore is vacated, and the cause is remanded for entry of a judgment of conviction for possession of cocaine, contrary to section 893.13(6)(a), Florida Statutes, and for resentencing using a corrected score-sheet. We do not disturb the conviction or sentence for possession of paraphernalia.

REVERSED and REMANDED.

PADOVANO and HAWKES, JJ., CONCUR.


author: PETERSON, J.

text:
    STATE of Florida, Appellant, v. Robert L. MASSEY, Appellee.
    No. 5D03-1811.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellee.
   PETERSON, J.

The State of Florida appeals the dismissal of its information against Robert L. Massey based on his Florida Rules of Criminal Procedure 3.190(c)(4) motion. Our de novo review compels us to reverse. See, e.g., Bell v. State, 835 So.2d 392 (Fla.2d DCA 2003).

The State charged Massey by information with possession of cocaine, possession of twenty grams or less of cannabis and possession of drug paraphernalia when the police entered a residence pursuant to a search warrant and saw him lying in bed. The police found the illegal substances within Massey’s reach on an adjoining table and on the floor.

Massey’s motion merely requested dismissal pursuant to rule 3.190(c)(4) and recited the same facts alleged in the charging affidavit. The State also alleged that Massey had been watching television when the drugs were seized and that in the closet of the same room there was paperwork connected to his probation, thereby implying that he had a substantial connection to the room in which he was found.

A defendant has the initial burden when filing a rule 3.190(c)(4) motion to allege that the material facts are undisputed and demonstrate that the undisputed facts do not establish a prima facie case. E.g., Ellis v. State, 346 So.2d 1044, 1045-46 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977). Massey failed to carry that burden as he has not demonstrated that the undisputed facts failed to establish a prima facie case.

Accordingly, Massey’s motion was deficient. See, e.g., State v. Gutierrez, 649 So.2d 926 (Fla. 3d DCA 1995); State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979).

The order dismissing the information is vacated and we remand for further proceedings.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.


author: ORFINGER, J.

text:
    Kenya L. PROCTOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4089.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Kenya L. Proctor, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

In early March, 1995, Kenya L. Proctor, along with two of his friends, Mark Russell and Jedediah McGlocking, robbed and shot an acquaintance. Proctor was convicted of attempted first-degree premeditated murder, robbery with a firearm and kidnaping. Proctor filed a direct appeal and this court per curiam affirmed. See Proctor v. State, 689 So.2d 1086 (Fla. 5th DCA 1997). Subsequently, Proctor has appeared here at least ten times in this nine-year-old case challenging his conviction. Earlier this month, this court issued an opinion detailing Proctor’s numerous efforts to attack his conviction and their impact on the court system. See Proctor v. State, 869 So.2d 752 (Fla. 5th DCA 2004). In that opinion, we said:

[I]n accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve our strained judicial resources, we prohibit Proctor from filing any additional pro se appeals, pleadings, motions and petitions relating to his convictions and sentence in the underlying case. Any further pleadings filed in this court relating to his convictions and sentence must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Kenya Laron Proctor regarding St. Johns County, 7th Judicial Circuit Court No. CF95-343.

Id. at 753.

Admittedly, Proctor’s current habeas corpus petition was filed prior to the release of our most recent opinion prohibiting Proctor from filing further pro se attacks on his conviction and sentence in the underlying case. Consequently, we did not dismiss it. Nonetheless, Proctor’s current appeal lacks merit and represents an effort to circumvent the limitations placed on successive postconviction attacks of criminal convictions by Florida Rule of Criminal Procedure 3.850. Accordingly, we affirm the trial judge’s denial of Proctor’s habeas corpus petition and reiterate that the Clerk of the Court of the Fifth District Court of Appeal shall not accept any further filings or pleadings from Kenya Laron Proctor regarding St. Johns County Seventh Judicial Circuit Case No. CF95-343 unless reviewed and signed by an attorney, licensed to practice law in the State of Florida.

AFFIRMED.

THOMPSON and TORPY, JJ., concur.


text:
    Richard L. BRIDGHAM and Patricia A. Bridgham, Appellants, v. Michael J. SKRZYNSKI and Madeline M. Skrzynski, Appellees.
    No. 2D03-1953.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.
    Frederick C. Kramer of Law Offices of Frederick C. Kramer, Marco Island, for Appellants.
    Stephen R. Ostrow, Marco Island, for Appellees.
   NORTHCUTT, Judge.

Richard and Patricia Bridgham contracted to purchase a home from Michael and Madeline Skrzynski. When the Bridghams discovered that a screen enclosure around the swimming pool violated the recorded setback restrictions of the Marco Island Civic Association, they declined to complete the purchase. The Skrzynskis would not return the Bridg-hams’ $32,000 earnest money deposit, so the Bridghams filed suit. The Skrzynskis counterclaimed, contending they were entitled to retain the deposit because the Bridghams had breached the contract. Both parties filed motions for summary judgment. The circuit court entered judgment for the Skrzynskis, concluding that, under the terms of the contract, the Bridg-hams had not timely objected to the setback violation. We reverse the summary judgment entered in favor of the Skrzyn-skis and remand for entry of summary judgment for the Bridghams.

The Skrzynskis initially accepted the Bridghams’ offer to purchase the home on August 7, 2002. The contract called for a purchase price of $326,000 and was contingent on the buyers’ obtaining a mortgage for $261,200. The closing date for the purchase was to be on or before October 11, 2002.

The Bridghams applied for financing. On September 5, 2002, they notified the Skrzynskis that two appraisals set the home’s value at less than $300,000 and that they could not obtain a loan in the amount of $261,200. They told the Skrzynskis that unless the price was renegotiated, they would cancel the contract under the terms of the mortgage loan contingency clause. The Skrzynskis refused to negotiate a new sales price, so the Bridghams confirmed in writing that they were terminating the contract and requesting the return of their $32,000 deposit.

Several days later the parties executed a form with the preprinted title “Addendum to Sales Contract.” The form contained a handwritten statement reducing the purchase price. It also provided that all other terms and conditions of the original contract were to remain the same. The Bridghams executed the addendum on September 10, 2002, and the Skrzynskis executed it on September 12.

The Bridghams then ordered a survey of the property, which disclosed the setback violation. They immediately reported the defect to the Skrzynskis. On September 30, 2002, the Skrzynskis replied that the civic association would not approve the violation. After confirming that the association would not allow the enclosure to remain in its present position, the Bridg-hams again cancelled the contract and requested the return of their deposit.

The Skrzynskis rejected the cancellation, asserting that “the contract clearly provides that any survey objection that is treated as a title defect under the survey provision of the contract had to be delivered by September 11, 2002.” That provision, Standard M, stated that any title defects based on a survey had to be raised within the “Survey Period,” which expired thirty days before the date set for the closing. The circuit court agreed with this argument. When awarding summary judgment to the Skrzynskis, the court found that “the contract was a continuous contract modified with the addendum signed by [the Bridghams] on September 10, 2002; therefore [the Bridghams] failed to timely raise a survey objection.”

We review a summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Moreover, the circuit court’s decision was based on its interpretation of the parties’ contract. Such a decision is also one of law that is subject to review under the de novo standard. See Syvrud v. Today Real Estate, Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003).

The evidence in this case did not support the circuit court’s finding that the contract was continuous. The Bridghams’ complaint averred that they “timely provided written notice terminating the contract” pursuant to the mortgage loan contingency on September 5, 2002. They also stated that the “termination was subsequently confirmed by letter of September 9, 2002.” In the counterclaim, the Skrzyn-skis stated that “pursuant to the terms of the contract, the [Bridghams] elected to cancel said contract.” Mrs. Skrzynski’s affidavit in support of the motion for summary judgment also recited that the Bridghams cancelled the contract on September 5. Both parties’ pleadings asserted that on September 12, 2002, they entered into the addendum, which “reinstated” the contract.

Whether this second contract is considered a new contract or a reinstatement of the old contract, its effective date was September 12, 2002, not September 10, as the circuit court found. See Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So.2d 463, 466 (Fla. 5th DCA 1988) (noting that the ordinary real estate purchase and sale agreement is completed when the second party signs the agreement); see also Goff v. Indian Lake Estates, Inc., 178 So.2d 910, 912 (Fla. 2d DCA 1965) (“Until the terms of an agreement have received the assent of both parties, the negotiation is open and imposes no obligation upon either.”). Because the parties agreed that the terms of the original contract would be incorporated into the new one, the closing date remained October 11, 2002, twenty-nine days after the second contract came into existence. Therefore, the “Survey Period” under Standard M had expired before the contract took effect. This sort of eventuality was actually contemplated in another contract provision:

STANDARD Q — QUICK CLOSING; CLOSING DATE EXTENSION; IN-SURABILITY. If the Closing Date does not allow sufficient time for performances by SELLER and BUYER within the time frames and deadlines set forth in this Contract, the parties agree to undertake and complete all performances, inspections, surveys, examinations, delivery of documents, notices, satisfaction of contingencies and all other actions required of or - allowed to either party prior to the Closing Date....

Thus, Standard Q extended the time period for the buyers to obtain the survey and to raise title defects revealed by the survey until the date of closing. The Bridghams told the Skrzynskis about the setback violation at the end of September 2002, before the scheduled October 11 closing. In so doing, they complied with the contract.

The Skrzynskis, however, did not. Under Standard M, if an improvement on the property violated any recorded covenant or restriction it was treated as a title defect. Standard L of the contract gave the sellers thirty days to clear or remove a title defect after receiving notice of it from the buyers, failing which the buyers were entitled to terminate the contract. The Skrzynskis never brought the screen enclosure into compliance with the association’s setback requirements. Consequently, the contract required them to promptly return the Bridghams’ deposit.

Under the facts of this case, the Bridg-hams were entitled to summary judgment as a matter of law. We reverse the summary judgment entered in favor of the Skrzynskis and remand with directions to enter judgment in favor of the Bridghams on their cross-motion for summary judgment. See, e.g., J. Allen, Inc. v. Humana of Fla., Inc., 571 So.2d 565, 566 (Fla. 2d DCA 1990); DiFranco v. Nat’l Found. Life Ins. Co., 551 So.2d 535 (Fla. 3d DCA 1989).

Reversed and remanded.

ALTENBERND, C.J., and CASANUEVA, J., Concur.

      . Standard M — Survey, Coastal Construction Control Line, provided, in pertinent part that
      BUYER may, at BUYER’S expense, have the Property surveyed not later than 30 days prior to the Closing Date ("Survey Period”). If the survey, as certified by a registered Florida surveyor, correctly shows: ... (4) an improvement on the Property violates any recorded covenant or restriction, ... BUYER may, within the Survey Period, notify SELLER of the Objections and shall furnish a copy of the survey. The Objections shall be treated as title defects.... If BUYER fails to obtain a survey within the Survey Period, BUYER waives any right to object to any matters which might have been shown on a survey. If BUYER fails to make any Objections within the Survey Period, BUYER waives any Objections.


author: CANADY, Judge. SALCINES, Judge,

text:
    William ALDRIDGE and Joyce Aldridge, Appellants, v. PEAK PROPERTY AND CASUALTY INSURANCE CORPORATION, Appellee.
    No. 2D02-2685.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.
    James J. Dowling of Law Offices of Berger & Dowling, Palm Harbor, and Alan S. Marshall, North Palm Harbor, for Appellants.
    Raymond A. Haas of Haas, Dutton, Cap-ito, Blackburn, Lewis & Longley, P.A., Tampa, for Appellee.
   CANADY, Judge.

William and Joyce Aldridge appeal a final summary judgment entered in favor of Peak Property and Casualty Insurance Corporation on a first-party claim they made against Peak under a property and casualty insurance policy. Because the Al-dridges sued for relief to which they were not entitled under the policy, we affirm the summary judgment in favor of Peak.

A motion for summary judgment should be granted only if there is “no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Our review of a summary judgment is de novo. Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003).

In the suit against Peak, the Aldridges sought to recover for “damages to their home, including progressive physical damage to the walls and floor of the residence,” and claimed that they “are entitled to the full cost of repairs of the damage to their home ... and, if the home is not repairable, the full replacement cost.” The residential property involved in the claim was subject to a mortgage given by the Aldridges to Ocwen Federal Bank. The policy on which the Aldridges based their claim names Ocwen as the insured. We note that Ocwen was not named as a party to the lawsuit brought by the Aldridges.

The policy is identified as a “Lenders Security Program Master Policy.” The policy provides: “The mortgagor of property covered hereunder, hereinafter referred to as the ‘Borrower,’ shall be considered an additional insured as respects any residual amounts of insurance over and above the insurable interest of the Insured in said property.” (Emphasis added.) The policy also contains a loss payable clause: “Loss, if any, shall be adjusted with and made payable to the Insured and/or the Borrower[ ]s as their interest may appear.” The record contains a mortgagor certificate of insurance which identifies Joyce Aldridge as the mortgagor in connection with the policy naming Ocwen as the insured mortgagee. The certificate of insurance states that the amount of insurance is $44,337.

In the summary judgment proceedings, Peak established that the outstanding bal-anee due to Ocwen on the mortgage exceeded the amount of the insurance coverage provided under the policy issued by Peak. On the record before us, this crucial fact stands undisputed. Accordingly, the insurable interest of Ocwen exhausts the coverage available under the policy, and there are no “residual amounts of insurance” available to the Aldridges. The Al-dridges therefore have no basis for their claim against Peak.

The dissent states that “if the policy limit of $44,337 has been remitted to Ocwen Federal Bank, then there was no residual for the Aldridges to claim,” but that in the absence of proof of such payment to Ocwen the Aldridges claim should be allowed to proceed. The dissent, however, does not address the fact that the Aldridges have made no claim for the payment of proceeds to Ocwen under the policy. Indeed, the suit filed by the Aldridg-es — which they never sought to amend— does not so much as mention the existence of the interest of Ocwen, much less seek to require that any proceeds properly due to Ocwen be paid to Ocwen by Peak. Such a lawsuit might have been brought by the Aldridges, but they chose to bring a different law suit. In the lawsuit actually brought by the Aldridges, the relief sought — the payment of proceeds to the Aldridges — would be directly in derogation of the undisputed rights of Ocwen under the insurance policy. Although the Al-dridges make passing reference in their cross-motion for summary judgment to their being “at the very least third party beneficiaries,” at no point have they asserted a third-party beneficiary claim.

In determining whether Peak was entitled to summary judgment, the trial court was required to consider whether Peak was entitled to judgment as a matter of law on the claim actually asserted by the Aldridges — not on some hypothetical claim that the Aldridges might have asserted. See Carroll & Assocs., P.A. v. Galindo, 864 So.2d 24, 28 (Fla. 3d DCA 2003) (“ ‘Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice.’ ” (quoting In re Estate of Hatcher, 439 So.2d 977, 980 (Fla. 3d DCA 1983) (footnote omitted))); Sabine v. Sabine, 834 So.2d 959 (Fla. 2d DCA 2003) (stating that when “a judgment is not based on an issue that has been framed by the pleadings, noticed for hearing, or litigated by the parties, it may not stand”); see also Fla. R. Civ. P. 1.110(b)(3). In the lawsuit actually brought by the Aldridges, they seek relief to which as a matter of law they are not entitled under the policy.

Because the Aldridges had no right under the insurance policy to the relief sought in their complaint, the trial court correctly entered summary judgment in favor of Peak.

Affirmed.

KELLY, J., Concurs.

SALCINES, J., Dissents with opinion.

SALCINES, Judge,

Dissenting.

I respectfully dissent. The Aldridges own a home apparently damaged by a sinkhole. They filed a complaint alleging that, under the terms of an insurance policy issued by Peak, they as the homeowners were entitled to recover for damages to their home. The Aldridges were listed in the policy as “additional insureds.” Peak has insisted that the policy was, in effect, merely a mortgagee policy for Ocwen Federal Bank, the holder of the note on the subject property. It was argued that the policy did not provide for the Aldridges to make a claim on the policy or to receive any recovery or payments, except for those sums remaining after the Bank’s note had been paid and as a matter of law the Aldridges could not be additional insureds.

The policy limit was $44,337. At the time of the summary judgment hearing, the mortgage was in default, and the total sum due to the Bank with applicable interest and penalties was $56,707.77.

The policy in question was a hybrid policy which included some sections relating to a “Lenders Security Program Master Policy.” However, the remainder of the policy insured against a myriad of damages to the dwelling which was the subject of the coverage. This portion of the policy included the agreement for Peak to pay the insured “Additional Living Expenses” if the property was unfit for normal use and to pay for damages to the dwelling, not just to pay the sums due upon the mortgage.

Peak took the position that, because the Bank was the named insured under the policy and the “payoff balance” exceeded the policy limit, there would be no proceeds left to pay the Aldridges after the debt to the Bank had been fully paid. The Aldridges countered that the insurance policy was partially a lenders security policy which was combined with a “personal” homeowners insurance policy. As counsel for the Aldridges noted, the policy was not “unartfully drafted, but it’s unartfully stapled together.” I agree.

The policy included a section denoted as “Dwelling Property 3, Special Form, Ed. 7-88.” A subsection within this form was entitled “Conditions” which included a “Mortgage Clause.” This clause stated in part: “If we deny your claim, that denial will not apply to a valid claim of the mortgagee.” It appears, at the very least, this clause created an issue of material fact concerning the Aldridges’ right to file a claim. I think the trial judge should have allowed the litigation to go forward on the merits to find out exactly what was intended by the policy that the plaintiffs-mortgagors were paying for.

Additionally, the paragraph entitled “Agreement of Indemnity” within the Lenders Security Program Master Policy states that the Aldridges “shall be considered an additional insured as respects any residual amounts of insurance over and above the insurable interest of the Insured in said property.” I agree that if the policy limit of $44,337 has been remitted to Ocwen Federal Bank, then there was no residual for the Aldridges to claim. However, the record before this court does not indicate whether such a payment had been made. As the additional insureds, the Al-dridges were entitled to make a claim for indemnity up to $44,337 and, therefore, summary judgment was not proper.

Accordingly, I conclude that the trial court erred when it prematurely determined that, as a matter of law, the Al-dridges were not entitled to make a claim upon the policy and granted summary judgment in favor of Peak on the issue of coverage. Therefore, I would reverse the final summary judgment and send it back to the trial court for further proceedings.

      . See Cmty. Bank v. Am. States Ins., 524 So.2d 1154 (Fla. 3d DCA 1988); W.R. Schlehuber v. Norfolk & Dedham Mut. Fire Ins., 281 So.2d 373 (Fla. 3d DCA 1973).

      . Alternatively, it would have been possible for the Aldridges to seek a reduction in the amount of the mortgage up to the policy limit of $44,337. However, this was not possible because Ocwen Federal Bank was not joined in the lawsuit.


author: CANADY, Judge.

text:
    Joseph NEUMANN, Jr., Gary Neumann, and Caroleann Knutson, Appellants, v. Joyce WORDOCK, Appellee.
    No. 2D03-1486.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.

      Adam Mohammadbhoy and Kimberly A. Bald of Harllee & Bald, P.A., Bradenton, for Appellants.
    Alan M. Oravec of Judd, Shea, Ulrich, Oravec, Wood & Dean, P.A., Sarasota, for Appellee.
   CANADY, Judge.

The appellants, Joseph Neumann, Jr., Gary Neumann, and Caroleann Knutson, three siblings, appeal an order granting summary judgment in favor of Joyce Wor-dock, their sister, in an action filed by the appellants against Wordock. The appellants’ action alleged that Wordock had tor-tiously interfered with expectancies the appellants had in their parents’ estates. The trial court granted summary judgment to Wordock on the ground that a probate proceeding would afford an adequate remedy for the claims. Because we conclude that the trial court erred in determining that the appellants had an adequate remedy in a probate proceeding, we reverse.

I. BACKGROUND

The appellants’ amended complaint included an allegation that,

[on] numerous occasions prior to March[ ] 2000, the [parents] expressed their intent regarding the division of their assets upon their death. On each occasion, the [parents] stated that they desired for Gary Neumann to inherit the Edison, New Jersey[,] home, that the Pennsylvania home would be inherited by ... Joseph Neumann, Jr., Caroleann Knutson[,] and [Joyce Wordock][,] and that the remaining assets would be divided among those three children equally-

The complaint further alleged that in March of 2000, at a time when the parents lacked testamentary capacity and were under the undue influence of Wordock, Wor-dock caused the parents to execute a durable power of attorney giving Wordock control of the parents’ property while the parents still lived. It was also alleged that through undue influence Wordock caused her parents to execute wills that would leave the vast majority of the parents’ property to her after both of the parents were deceased. The complaint alleged that Wordock used these wills and the power of attorney to divert the parents’ assets to herself. The complaint stated that the mother died in 2001 and the father died in 2002. Although not specifically alleged in the complaint, it appears that it was undisputed that the parents’ estates had virtually no assets at the time the complaint was filed. The estates were never probated.

Wordock filed a motion for summary judgment, arguing that the appellants were precluded from bringing a tort action to recover their expected inheritances because a probate proceeding would provide an adequate remedy. The trial court entered an order granting the motion for summary judgment stating that, pursuant to this court’s decision in All Children’s Hospital v. Owens, 754 So.2d 802 (Fla. 2d DCA 2000), the appellants had a sufficient remedy in a probate proceeding. That order is the subject of this appeal.

II. ANALYSIS

The facts of the instant case are distinguishable from the factual situation present in All Children’s Hospital. In All Children’s Hospital, certain charities filed a claim for tortious interference with an expectancy. The charities were, however, “only a fraction of the residual beneficiaries” in a situation where a complex probate proceeding with numerous beneficiaries was ongoing. Under the circumstances of that case, this court held as follows:

If these [c]harities, as residual beneficiaries, are ever permitted to pursue a claim against [the defendant] for tor-tious interference with an expectancy, such a claim has not yet accrued because the estate administration is still pending, similar claims are being advanced by a representative of the estate, and these [cjharities cannot claim to have been damaged until the distribution occurs. The [cjharities’ right to eventually receive a share of any residue left in the estate does not give them the right to obtain a constructive trust for their own benefit over property that they claim should be within the estate. Even if the personal representative has already transferred a parcel of real estate or a sum of money to [the defendant] under a specific devise, we conclude the task of retrieving that property for the benefit of the [ejstate and all of its residual beneficiaries should be left to the personal representative or the administrator ad litem and not delegated to a small group of the beneficiaries.

Id. at 803.

The situation in the instant case is quite different. No probate proceeding is ongoing, and no personal representative is pursuing any claim. There is no risk that the instant tort action might interfere with a probate proceeding. Further, in the absence of a probate proceeding, no distribution will ever occur. Finally, the parties to this action are not “only a fraction of the residual beneficiaries,” but rather appear to include, either as a plaintiff or defendant, virtually all of the significant beneficiaries. We thus conclude that the holding in All Children’s Hospital is not applicable here.

This resolution of this appeal turns instead on the general principle articulated by the supreme court in DeWitt v. Duce, 408 So.2d 216, 218 (Fla.1981): “[IJf adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” Under this principle, the appellants’ tortious interference with an expectancy action may proceed only if some factor in the instant case precludes adequate relief in a probate proceeding.

In DeWitt, the supreme court recognized that a probate proceeding will not provide an adequate remedy when the distribution of assets sought by an aggrieved party cannot be provided in the probate proceeding. The court noted that in Cooke v. Cooke, 278 So.2d 683 (Fla. 3d DCA 1973), the Third District “properly allowed [a suit alleging tortious interference with an expectancy,] since the plaintiff son had been promised two-thirds of his father’s estate prior to the defendant’s interference, and would have taken only one-half by intestacy had he defeated the will.” DeWitt, 408 So.2d at 220 n. 10. The court’s holding that probate was an adequate remedy in DeWitt was based upon the existence of a will — predating the disputed will — that allocated the estate’s assets in the manner sought by the plaintiffs there. Id.

In the instant case, the appellants claim that the will of their father — who survived the mother — was the product of undue influence and distorted the testator’s wishes, but there is no evidence of the existence of a will effecting what the appellants claim was the testator’s intended distribution of his assets. Further, the pre-interference intended distribution of the assets alleged by the appellants appears to be significantly different than the distribution that would be provided by intestacy, since the appellants have contended that certain items of property of indeterminate value were intended for specific beneficiaries. In sum, the record before the trial court does not show that an adequate remedy was available for the appellants in a probate proceeding.

III. CONCLUSION

Wordock has not established that — under the governing rule articulated in De-Witt — she was entitled to judgment as a matter of law. Because Wordock failed to carry her burden as the movant to demonstrate her legal entitlement to summary judgment, we reverse the order granting summary judgment.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . We note that Wordock contends that certain language in the complaint suggests that the appellants allege that the assets should have been equally divided among the children. We reject that contention because of the specificity of the language from the complaint quoted above.


text:
    Peter L. BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5110.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.
   PER CURIAM.

Peter Brinson challenges an order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Brinson alleges, and the State concedes, that the order on appeal is void because the trial judge who entered the order had previously entered an order recusing himself in the same trial court case. We agree that the prior order of recusal renders the present order void. See Thomas v. State, 756 So.2d 217 (Fla. 4th DCA 2000).

Accordingly, we reverse the order summarily denying appellant’s rule 3.850 motion and remand to the trial court for a newly assigned trial judge to consider the motion on its merits. Id.

Reversed and remanded, with directions.

NORTHCUTT, KELLY, and VILLANTI, JJ., Concur.


text:
    In re RECORDS OF the DEPARTMENT OF CHILDREN AND FAMILY SERVICES; Family Continuity Programs, Inc., a/k/a FCP, Inc.; Sarasota Family Young Men’s Christian Association, Inc.; YMCA Children, Youth, and Family Services, Inc.; and Family Counseling Center of Sarasota County, Inc. The Sarasota Herald-Tribune, Appellant, v. Department of Children and Family Services; Family Continuity Programs, Inc., a/k/a FCP, Inc., Sarasota Family Young Men’s Christian Association, Inc.; YMCA Children, Youth, and Family Services, Inc.; and Family Counseling Center of Sarasota County, Inc., Appellees.
    No. 2D03-2794.
    District Court of Appeal of Florida, Second District.
    May 14, 2004.

      Greg D. Thomas and Rachel E. Fugate of Holland & Knight LLP, Tampa, for Appellant.
    Josefina M. Tamayo and John Jackson, Tallahassee, for Appellee Department of Children and Families.
    Frank Strelec of Williams, Parker, Harrison, Dietz & Getzen, P.A., Sarasota, for Appellees YMCA Children, Youth, and Family Services, Inc., and Family Counseling Center of Sarasota County, Inc.
    No appearance for Appellees Family Continuity Programs and Sarasota Family Young Men’s Christian Association, Inc.
   CANADY, Judge.

The Sarasota Herald-Tribune appeals a final order of the circuit court denying access to certain records of the Florida Department of Children and Family Services (DCF) and of the other appellees. The Herald-Tribune had sought access to records relating to a child abuse case under a statutory provision permitting the disclosure of such records upon a showing of good cause. Because we conclude the circuit court abused its discretion when it failed to conduct an in camera review of the records to which the Herald-Tribune seeks access, we reverse the trial court’s order.

I. BACKGROUND

A. Access to Records in Child Abuse Cases

The custodians of public records are generally required to “permit the record[s] to be inspected and examined by any person desiring to do so.” § 119.07(l)(a), Fla. Stat. (2001). See also art. I, § 24, Fla. Const. Certain records are, however, protected from disclosure. See art. I, § 24(c). Section 39.202(1), Florida Statutes (2001), provides that “[i]n order to protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by [DCF] concerning reports of child abandonment, abuse, or neglect ... shall be confidential and exempt from the provisions of s. 119.07(1).” Section 39.202(2)(o) provides, however, that child abuse records other than information identifying the reporter of abuse will be made available to “[a]ny person in the event of the death of a child determined to be a result of abuse, abandonment, or neglect.”

Notwithstanding the exemption from disclosure afforded by section 39.202(1), records in child abuse cases may be made public by court order pursuant to the provisions of section 119.07(7):

(a) Any person or organization, including the Department of Children and Family Services, may petition the court for an order making public the records of the Department of Children and Family Services that pertain to investigations of alleged abuse, neglect, abandonment, or exploitation of a child.... The court shall determine if good cause exists for public access to the records sought or a portion thereof. In making this determination, the court shall balance the best interest of the ... child who is the focus of the investigation, and ... the interest of that child’s siblings, together with the privacy right of other persons identified in the reports against the public interest. The public interest in access to such records is reflected in s. 119.01(1), and includes the need for citizens to know of and adequately evaluate the actions of the Department of Children and Family Services and the court system in providing ... children of this state with the protections enumerated in [s.] 39.001.... However, this subsection does not contravene [s.] 39.202 ..., which protect[s] the name of any person reporting the abuse, neglect, or exploitation of a . child....
(c) When the court determines that good cause for public access exists, the court shall direct that the department redact the name of and other identifying information with respect to any person identified in any protective investigation report until such time as the court finds that there is probable cause to believe that the person identified committed an act of alleged abuse, neglect, or abandonment.

(Emphasis added). Section 119.07(7)(b) sets forth provisions — not relevant to the instant case — relating to the release of records “[i]n cases involving serious bodily injury to a child.”

B. The Basis for the Heraldr-Tribune’s Petition

The basic facts of the case are not disputed and have been the subject of articles published by the Herald-Tribune. In August 2002, three children, ages eleven to twelve, who were under the supervision of DCF, were placed with their uncle, Mervin Kitnurse. The children were placed with Kitnurse, a resident of Sarasota County, by Family Continuity Programs, Inc. (Family Continuity), which was under contract with DCF to provide placement and supervision service for children in Pinellas and Pasco Counties. Family Continuity did not conduct a thorough criminal background check concerning Kitnurse before placing the children with him. The check of local records apparently conducted by Family Continuity did not reveal Kit-nurse’s lengthy arrest record, which included charges of lewd and lascivious acts in the presence of children, as well as charges of indecent exposure.

YMCA Children, Youth and Family Services, Inc. (YMCA), which was under contract with DCF to provide services related to foster and adoptive care in Sarasota County, had responsibilities related to the supervision of the three children once they were placed with Kitnurse. Family Counseling Center of Sarasota County, Inc. (Family Counseling), was under contract with YMCA to carry out the actual supervision of the children. Over a period of six months, Family Counseling conducted approximately twelve visits to monitor the children in their placement with Kitnurse. In December 2002, based on concerns regarding the suitability of the placement with Kitnurse, YMCA recommended to Family Continuity that the children be removed from Kitnurse’s home. That recommendation, however, was not followed; the children remained with their uncle.

On March 5, 2003, DCF conducted an investigation of a report that Kitnurse had abused the children in his care. DCF did not perform a criminal background check of Kitnurse, although DCF policy provides for such a check regarding persons accused of abuse. Once again, the children were left with Kitnurse.

On March 13, 2003, a detective with the North Port Police Department went to Kitnurse’s home and spoke with the children. The children told the detective that they were struck daily by Kitnurse. One of the children related that she had been sexually molested by Kitnurse. The same day, the children were removed from Kitnurse’s custody. Kitnurse was subsequently arrested on charges of felony sexual battery and lewd and lascivious molestation of a child under twelve.

C. Proceedings in the Circuit Court

On May 23, 2003, pursuant to section 119.07(7)(a), the Herald-Tribune filed its petition in the circuit court seeking access to records relating to the placement, supervision, and alleged abuse of the three children in the custody of Kitnurse. On June 4, 2003, the circuit court conducted an evidentiary hearing on the Herald-Tribune’s petition. In brief, at the hearing the Herald-Tribune sought to establish good cause for the’ release of the records based on the public need to know how and why it was possible for the series of errors related to the placement of the children with Kitnurse to occur. DCF countered by arguing that the relevant facts concerning the errors involved in the placement with Kitnurse had already been published by the Herald-Tribune and that the release of the records would cause harm to the children involved. The Herald-Tribune contended that the interests of the children could be protected by the redaction of their names from the records. The trial court denied the Herald-Tribune’s petition, stating that “in weighing the public interest to know and the best interest of the children, I just really couldn’t in good conscience require any disclosure of these records.” The Herald-Tribune’s request that the court conduct an in camera review of the requested records was rejected by the trial court.

II. ISSUES ON APPEAL

On appeal, the Herald-Tribune contends that it established good cause for the release of the records and that the appellees did not carry their burden to justify nondisclosure of the records. The Herald-Tribune argues that the statute effectively establishes a presumption in favor of disclosure once a petitioner shows that there is a public interest in access to the records. The Herald-Tribune also asserts that the trial court was required to conduct an in camera inspection of the records at issue. DCF contends that the Herald-Tribune failed to meet its burden of establishing good cause for the release of the records sought in the petition. DCF argues that it was not required to adduce any testimony or evidence to support the nondisclosure of the records. DCF also urges that, in light of the information already made available concerning the errors involved in the placement of the children with Kitnurse, the disclosure of the records requested by the Herald-Tribune is not necessary to vindicate the public interest. Finally, DCF contends that the disclosure would be harmful to the children involved.

The parties are in agreement that on appeal we must determine whether the trial court’s denial of the petition was an abuse of discretion. See Campus Communications, Inc. v. Earnhardt, 821 So.2d 388, 402 (Fla. 5th DCA 2002) (“The standard of review regarding issues of good cause requires us to determine whether the trial court abused its discretion in making its decision.”).

III. ANALYSIS

Under section 119.07(7)(a), a trial court is required to “determine if good cause exists for public access to the records sought or a portion thereof.” The statute provides that the good cause determination is to be based on a balancing of interests. The statute directs that the trial court “shall balance the best interest” of the child involved and the interest of the child’s siblings, as well as “the privacy rights of other persons identified” in the records “against the public interest.” The “public interest in access” is specifically identified as being reflected in section 119.01(1) and as including “the need for citizens to know of and adequately evaluate the actions of [DCF] and the court system in providing ... children of the state with the protections” afforded by law.

Contrary to the argument of the Herald-Tribune, section 119.07(7)(a) does not establish a presumption in favor of disclosure once a public interest in access to the records has been demonstrated. Such a presumption would place the interest of the child in nondisclosure in a position inferior to the public interest in disclosure. Nothing in the text of the statute warrants the imposition of a presumption requiring the trial court to begin the balancing process required by the statute with the scales already tipped against protecting the best interest of the child. When the legislature originally adopted section 119.07(7)(a) it also adopted a specific provision relating to the disclosure of records in cases “involving the death of a child,” which established a “presumption that the best interest of the child and the child’s sibling and the public interest will be served by full public disclosure.” Ch. 90-306, § 24, at 2452, Laws of Fla.; § 119.07(7)(b)(2), Fla. Stat. (Supp.1990). The absence of similar language in section 119.07(7)(a) militates against the argument advanced by the Herald-Tribune that there is a presumption in favor of disclosure under section 119.07(7)(a).

In support of the argument that DCF has the burden of establishing that disclosure should not be made, the Herald-Tribune relies on the principle that the custodian of public records asserting an exemption from disclosure bears the burden of establishing the applicability of the exemption. See Tribune Co. v. Pub. Records, 493 So.2d 480, 484 (Fla. 2d DCA 1986) (stating that where applicability of exemption is disputed, “[ujnless the custodian of the requested records asserts and sustains a specific exemption to disclosure, the information must be made available to the public”). But proceedings pursuant to section 119.07(7)(a) are not subject to the rule governing proceedings to determine the applicability of an exemption from disclosure. A petition is filed pursuant to section 119.07(7)(a) only with respect to records that are admittedly confidential and exempt from disclosure. There is no requirement for the custodian of such records to establish that they should not be released. The petitioner has the burden of showing that good cause exists for the disclosure of the records sought or a portion of those records.

In conducting the balancing of interests necessary to determine whether good cause exists for disclosure, the trial court is required to weigh the potential harm to the child involved in the abuse case against the potential benefit to the public that would result from the public disclosure of the information contained in the records. In addition, in weighing the interests in nondisclosure the court is to consider the interest of the child’s siblings and the “privacy right of other persons identified” in the records. § 119.07(7)(a).

All circumstances relevant in any way to the rights and interests of the child should be considered by the trial court. Nothing in the statutory text suggests that the best interest of the child under this statute should be narrowly construed. The pertinent rights of the child include, but are not limited to, the privacy interests of the child, as well as the child’s interest as a crime victim in the successful prosecution of any crimes against the child. In short, in conducting the balancing required by the statute, the trial court must give full consideration to the impact that public disclosure of the information sought would have on the well-being of the child.

On the other side of the scale, the trial court must place the public interest in having an adequate basis for evaluating the performance of DCF and the court system in carrying out their responsibilities for the protection of children. The public interest in disclosure is based on the underlying public interest in understanding the causes of performance shortcomings — a prerequisite to correcting those shortcomings. The public interest in correcting such shortcomings coincides with the interests of all the children who may suffer as a consequence of failures in the state’s efforts to protect them from abuse. As with the best interest of the child, there is nothing in the statute which suggests that the public interest set forth in the statute should be narrowly construed.

The trial court must weigh the particular interests of the individual child or children involved in the case against the general interests of the public in good public policy. These counterpoised interests admittedly are in an important sense incommensurable. Ultimately, the balancing of interests required by the statute involves the exercise of judicial discretion. See Campus Communications, 821 So.2d at 402.

A discretionary decision will not be reversed “[i]f reasonable men could differ as to the propriety of the action taken by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In other words, if a reasonable person could view the trial court’s action as proper, the trial court’s decision must be affirmed. The trial court’s discretionary determination is thus afforded substantial deference. But the exercise of discretion is not unbounded. “The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result.” Id.

In deciding “whether there is logic and justification for” a trial court’s determination under section 119.07(7)(a), we necessarily focus on the nature of the balancing process provided for in the statute. As we have discussed, that process requires the trial court to weigh the harm to the child against the benefit to the public that would potentially result from the disclosure of the records at issue. Both the potential harm to the child and the potential benefit to the public will depend on the particular information contained in the records. The privacy and other interests of the child can only properly be weighed based on an evaluation of the potential impact that the public disclosure of the particular information contained in the records would have on those interests. Similarly, the weight of the public interest in disclosure will turn on the particular facts that would come to light if the court ordered the disclosure of the records.

The balancing of interests provided for in the statute requires that the trial court evaluate the impact of the disclosure of the records against the' backdrop of the information that is already publicly known. The relative weight of the competing interests will in some cases be affected by the fact that information contained in the records is already known to the public. The fact that information in the records is publicly known will not, however, necessarily—or even ordinarily— be sufficient to vitiate the public interest in disclosure of the public records at issue. Nor will the child’s interest in nondisclosure of the records vanish simply because information contained in the records is already the subject of public knowledge. The trial court must consider the potential impact of the disclosure of any additional information that is not publicly available as well as the potential impact of the confirmation of already-disclosed information that would flow from the release of the records sought by the petition.

In connection with the information that is already publicly available concerning the performance of DCF and the other entities having responsibility for the children who were placed with Kitnurse, we acknowledge that DCF has been forthcoming in accepting responsibility for the failures that are evident in the handling of the underlying case. While that circumstance may be relevant to the trial court’s weighing of the public interest in disclosure, it is not sufficient in itself to defeat a petition under section 119.07(7)(a).

The balancing of interests must also be performed in light of the statutory provision for the disclosure of “a portion” of the records sought. To the extent that the best interest of the child involved— together with the other interests identified in the statute—can adequately be protected by the nondisclosure of parts of the records, that circumstance must be taken into account by the trial court. If any portion of the records—the disclosure of which would further the public interest identified in the statute—can be disclosed without harm to the interests of the child and the other relevant interests, the trial court should order the disclosure of that portion of the records.

We note, however, that the Herald-Tribune’s suggestion that the children involved here can be protected by the redaction of their names from the records is unpersuasive. The painful reality is that the children, whose uncle is Mervin Kit-nurse, are readily identifiable based on their acknowledged familial relationship with Kitnurse. Any protection afforded to their privacy interests by the redaction of their names from the records at issue would be entirely illusory.

Our analysis of the statute leads us to conclude that a trial court can properly exercise its discretion under the statute only if the trial court has considered and evaluated the contents of the records. A good cause determination must be based on an evaluation of the potential impact the disclosure will have on the competing interests of the child and the public. It is impossible to judge the potential impact of the disclosure of information contained in records without knowing what that information is. And, ordinarily, the trial court can know what is in the records at issue only by conducting an in camera review. Accordingly, there can ordinarily be no “logic and justification for the result” embodied in the trial court’s good cause determination if the trial court has not conducted an in camera review of the records at issue. Canakaris, 382 So.2d at 1203. See Dep’t of Health & Rehab. Servs. v. Gainesville Sun Publ’g Co., 582 So.2d 725, 727 (Fla. 1st DCA 1991) (stating, in proceeding pursuant to section 119.07(7)(a), that “the trial court would have no basis on which to find good cause without reviewing the records themselves”); see also Woolling v. Lamar, 764 So.2d 765, 768-69 (Fla. 5th DCA 2000) (holding that where “[n]o record exists for the trial court to reach its conclusion that the records [requested] are exempt under [cjhapter 119 ... [a]n in camera inspection by the lower court is ... required so that the trial court will have a factual basis to decide if the records are exempt” under statutory exemption relating to active criminal investigations); Beck v. Dumas, 709 So.2d 601, 603 (Fla. 4th DCA 1998) (“The broad judicial discretion which the trial court enjoys in ruling on discovery matters [related to alleged trade secrets] cannot properly be exercised in a vacuum or on a mere whim. The court needs sufficient insight into the relevant factors which must be weighed before deciding the competing interests of the respective parties”).

Here, the trial court refused to conduct an in camera review of the records at issue. The trial court could do nothing more than speculate about the actual content of those records. It therefore lacked an adequate basis for weighing the competing interests under the statute and for determining that good cause did not exist for the release of the records.

V. CONCLUSION

The trial court’s failure to conduct an in camera review of the records at issue was an abuse of discretion. Accordingly, the trial court’s order denying the Herald-Tribune’s petition is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA, J., and GREEN, OLIVER, SENIOR JUDGE, concur.

      . We acknowledge that the records at issue in a proceeding under section 119.07(7)(a) are not necessarily protected from disclosure simply because there is an ongoing criminal investigation concerning acts of abuse against the child. See Sun-Sentinel, Inc. v. Fla. Dep’t of Children & Families, 815 So.2d 793 (Fla. 3d DCA 2002) (holding, in proceeding against DCF for disclosure of records, that exemption for records relating to active criminal intelligence and investigative information was as a matter of law not applicable). That does not mean, however, that a trial court considering a petition under section 119.07(7)(a) should not consider any potential impact of the requested disclosure on the interests of the child as a crime victim in the successful prosecution of crimes against the child.

      . We note that section 119.07(2)(b) makes specific provision for in camera inspections of records with respect to which the custodian has asserted an exemption when the party seeking access to the records challenges the applicability of the exemption. 'Under section 119.07(2)(b), in determining whether the records at issue are exempt from disclosure, for one category of exemption — i.e., active criminal intelligence and investigative information — the trial court has discretion to conduct an in camera inspection. For other specific categories of exemption, the trial court is required to conduct an in camera inspection. For certain other categories no provision is made with respect to in camera inspections. The division of the exemptions into these categories depends on whether examination of the records in a particular category is necessary — or sometimes necessary — to determine the applicability of the asserted exemption. The provisions of section 119.07(2)(b) have no bearing on the question of whether a trial court can properly exercise its discretion in balancing the interests at issue under section 119.07(7)(a) without an in camera review of the records to which access is sought.


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    PLANTATION GENERAL HOSPITAL and Florida Birth-Related Neurological Injury Compensation Assoc., Appellants, v. Bassam ABIFARAJ and Rayya Abifaraj, on Behalf of and as Parents and Natural Guardians of Samer ABIFARAJ, a Deceased Minor; John L. Rinella, M.D., and Rinella, Hudanich, Greenberg, Ralph & Sijin, P.A.; Joaquin Taranco, M.D., and Taranco & Associates Anesthesiology Group, P.A., d/b/a Plantation Tamarac Anesthesia Group, P.A., Appellees.
    No. 1D04-0356.
    District Court of Appeal of Florida, First District.
    May 17, 2004.
    John W. Mauro and Hal Anderson of Billing, Cochran, Heath, Lyles & Mauro, Ft. Lauderdale, for appellant Plantation General Hospital; Wilbur E. Brewton and Kelly B. Plante of Roetzel & Andress, L.P.A., Tallahassee; W. Douglas Moody of Myers & Fuller, Tallahassee, and Kenny Shipley, Tallahassee, for appellant Florida Birth-Related Neurological Injury Compensation Association.
    Mayer Gattegno and Barbara Green, Coral Springs, for appellees Bassam and Rayya Abifaraj; Nancy W. Gregoire of Bunnell,' Woulfe, Kirsehbaum, Keller, McIntyre & Gregoire, P.A., Ft. Lauder-dale, for appellees John L. Rinnella and Rinella, Hudanich, Greenbert, Ralph & Si-jin, P.A.; Darlene Stosik, Esther E. Gali-cia and Liana Silsby of George, Hartz, Lundeen, Fulmer, et al, Ft. Lauderdale, for appellees Taranco and Taranco & Associates.
   PER CURIAM.

Upon consideration of the parties’ responses to the Court’s order of March 22, 2004, the Court has determined that this appeal is duplicative of the appeal in case number 1D03-4344. Accordingly, the appeal is hereby dismissed. In light of the dismissal, the appellees/cross-appellants, Bassam and Rayya Abifaraj’s, motion to consolidate for all purposes, filed on February 19, 2004, is hereby denied as moot.

BARFIELD, DAVIS and POLSTON, JJ., concur.