author: WALLACE, Judge. VILLANTI, Judge,

text:
    HOUSING AUTHORITY OF the CITY OF TAMPA, Petitioner, v. Connie BURTON, Respondent.
    No. 2D03-1163.
    District Court of Appeal of Florida, Second District.
    March 24, 2004.
    Rehearing Denied June 10, 2004.

      J. Frazier Carraway, Astrid Hapanow-icz, and Cheryl J. Lister of Saxon, Gilmore, Carraway, Gibbons, Lash & Wilcox, P.A., Tampa, for Petitioner.
    Guy M. Burns, Jonathan S. Coleman, and Zachary D. Messa of Johnson, Pope, Bokor, Ruppel & Burns, P.A., Tampa, for Respondent.
   WALLACE, Judge.

The Tampa Housing Authority seeks certiorari review of the circuit court’s order denying its appeal — treated as a petition for writ of certiorari — from the county court’s order granting a new trial in the Housing Authority’s suit to evict a tenant. Because the circuit court’s order did not depart from the essential requirements of the law, we deny the petition.

In Hillsborough County Court, the Housing Authority obtained a favorable jury verdict in the eviction trial of Connie Burton, a tenant of public housing in Tampa. The tenant moved for a new -trial on two grounds: the verdict was against the manifest weight of the evidence, and one of the jurors had committed misconduct by discussing the case with a dismissed juror. The trial judge denied the tenant’s motion on the grounds asserted but ordered a new trial on its own initiative based on the trial judge’s personal observation that a juror was “consistently asleep in the jury box during the presentation of evidence” and that “to allow the jury verdict to stand would be a manifest injustice.” At trial, neither party had made an objection on account of a sleeping juror, nor had the trial judge mentioned the matter.

The Housing Authority appealed to the Circuit Court for the Thirteenth Judicial Circuit, contending that the trial judge erred by granting a new trial based upon unpreserved error that was not fundamental in nature. The circuit court, believing it lacked jurisdiction to hear a direct appeal, treated the Housing Authority’s notice of appeal as a petition for writ of certiorari. The circuit court denied the petition on the ground that “the trial court did not abuse its discretion by ordering a new trial.” The Housing Authority seeks certiorari review of the decision of the circuit court sitting in its appellate capacity.

Certiorari review is appellate in character in the sense that it involves a limited review of the proceedings of an inferior jurisdiction. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995). However, certiorari should not be used to grant a second appeal but, instead, is limited to those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). The Housing Authority does not argue that it was denied procedural due process at any point in the proceedings; thus our inquiry concerns whether the circuit court departed from the essential requirements of law.

The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). A failure to observe “the essential requirements of law” has been held synonymous with a failure to apply “the correct law.” Heggs, 658 So.2d at 530. The district courts of appeal “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.” Id. at 528 (quoting Combs v. State, 436 So.2d 93, 95 (Fla.1983)). In the context of certiorari review of a circuit court’s decision sitting in its appellate capacity, certiorari relief may be granted when the circuit court’s legal error in applying the incorrect law is sufficiently egregious or fundamental. Bottcher v. Walsh, 834 So.2d 183, 184-85 (Fla. 2d DCA 2002).

In its petition for writ of certiorari to this court, the Housing Authority argues that the circuit court applied incorrect law by failing to apply a de novo standard of review to the trial judge’s new trial order, as would be appropriate for review of a decision based on unpreserved fundamental error. Initially, we note that the circuit court’s conclusion that it lacked appellate jurisdiction over the trial court’s order granting the motion for new trial was incorrect. The circuit court had jurisdiction to hear the appeal pursuant to section 59.04, Florida Statutes (2002). See Blore v. Fierro, 636 So.2d 1329, 1331 (Fla.1994) (explaining that authority for appeals to the circuit court is established by general law). However, whether the circuit court heard the case as an appeal or as a petition for writ of certiorari is not particularly pertinent here unless the decision on this issue affected the circuit court’s scope of review. Under the circumstances, we cannot conclude that the circuit court’s review of the new trial order under the abuse of discretion standard constituted an application of incorrect law.

The Housing Authority’s argument that the circuit court applied the wrong standard of review rests upon the factual assumption that the juror’s somnolence was necessarily apparent to the attorneys and that the attorneys made a strategic decision not to object; in other words, the juror’s misconduct was an unpreserved error subject to fundamental error, analysis. The Housing Authority did not present to the circuit court evidence in the trial record to suggest that the tenant was aware of the juror’s sleeping. The trial record does not refute the conclusion that the juror’s sleeping may have been evident only to the trial judge who may very well have had a superior vantage point to observe the juror in question. Thus the issue of the sleeping juror may not have been an unpreserved error depending upon a variety of factors largely unknown to the circuit court and best known to the trial judge. Therefore, the issue of the sleeping juror — and whether any error with regard thereto was preserved or un-preserved — was a question of fact to be determined by the trial judge in his discretion. See Tri-Pak Mach., Inc. v. Harts-horn, 644 So.2d 118, 119-20 (Fla. 2d DCA 1994). Accordingly, the circuit court applied the correct legal standard in its appellate review of the trial court’s order for a new trial.

Unlike application of incorrect law, misapplication of correct law by a circuit court sitting in its appellate capacity generally does -not constitute a violation of clearly established law resulting in a miscarriage of justice. Ivey, 774 So.2d at 682. Thus, even if there is legal error' in the circuit' court’s decision that the trial court did not abuse its discretion in granting a new trial, we are unable to conclude that this is one of'“those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected.” See Combs v. State, 436 So.2d 93, 95 (Fla.1983). Two cases from this court guide our determination: State v. Roess, 451 So.2d 879, 880 (Fla. 2d DCA 1984), which involved a new trial order; and Haines City Community Development v. Heggs, 647 So.2d 855, 856 (Fla. 2d DCA 1994), approved, 658 So.2d 523, which involved an eviction.

In Roess, the circuit court issued a new trial order when it reversed a conviction of animal cruelty from the county court. The basis for reversal was the county court’s exclusion of a prior consistent statement. This court strongly hinted that the circuit court erred in reversing, but we declined to issue the writ because the error did not rise to a miscarriage of justice:

The circuit court reversed the conviction and ordered a new trial. The respondent has not been exonerated of criminal wrongdoing. The state has not been deprived of its day in court. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981). We believe that to grant certiorari under the circumstances of this particular case in which the circuit court sat in its appellate capacity would improperly -afford two appeals from a trial in the county court. See Clermont [Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977)]. We cannot say that this is one of “those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected.” Combs, 436 So.2d at 95.

Roess, 451 So.2d at 880.

Roess was the primary authority relied upon in this court’s decision in Heggs, 647 So.2d 855. In that case, the county court entered a judgment of eviction against a tenant for nonpayment of rent. The circuit court reversed, holding that the county court abused its discretion in failing to find that the landlord was equitably es-topped from seeking to evict the tenant based on the landlord’s past conduct in collecting unpaid rent. Id. at 856. The circuit court did this even though it acknowledged that the county court’s judgment came to it clothed with a presumption of correctness and that the tenant had a history of repeated nonpayment of rent. Id. This court refused to issue a writ of certiorari to quash the circuit court’s reversal:

In this case, even if we were to conclude that the circuit court’s order departed from the essential requirements of the law, we cannot say that such a departure was serious enough to result in a miscarriage of justice. The order did nothing more than reverse a county court’s eviction judgment based on a peculiar set of facts. It did not deprive the petitioner of its day in court, nor has it foreclosed the petitioner from seeking eviction of the respondent because of future non-payment of rent. See State v. Roess, 451 So.2d 879 (Fla. 2d DCA 1984). Thus, we are unable to conclude that this is one of “those few extreme cases where the appellate court’s decision is so erroneous that justice requires that it be corrected.” Combs, 436 So.2d at 95.

Heggs, 647 So.2d at 856. Approving this court’s decision, the supreme court commented that the above-quoted analysis “captures the essence” of the certiorari standard. Heggs, 658 So.2d at 531.

In this case, the new trial order did not exonerate the tenant from wrongdoing, nor did it deprive the Housing Authority of its day in court. See Roess, 451 So.2d at 880; cf. Britt v. Mascara, 830 So.2d 221, 223-24 (Fla. 4th DCA 2002) (granting a petition for certiorari when the circuit court incorrectly approved the county court’s dismissal of the civil claim of a prison inmate who was denied an opportunity to be heard because of his incarceration). When compared with Heggs, the result for the Housing Authority in this case is less onerous than the result suffered by the landlord in Heggs, who was completely deprived of the right to evict the tenant for the reasons litigated. Here, the Housing Authority is not deprived of its right to pursue eviction on the same grounds in a new trial. A proper application of the certiorari standard leads us to conclude that any error in the proceedings below does not constitute a miscarriage of justice.

There being no departure from the essential requirements of law, we deny the petition for writ of certiorari.

Petition for writ of certiorari denied.

SALCINES, J., Concurs.

VILLANTI, J., Dissents with opinion.

VILLANTI, Judge,

Dissenting.

I respectfully dissent because in my view the circuit court departed from the essential requirements of the law and denied the Housing Authority procedural due process when it treated this direct appeal as a petition for certiorari, thus applying the incorrect standard of review to the proceedings.

In this ease, the Housing Authority sought review of the county court’s order granting Burton’s motion for new trial. Under Florida Rules of Appellate Procedure 9.110(a)(4) and 9.130(a)(4), the Housing Authority was entitled to a direct appeal of this order in the circuit court. On direct appeal from that order, the circuit court’s task was to determine whether the county court abused its discretion in granting the motion for new trial. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999).

However, for reasons not apparent from the record, the circuit court decided that it did not have the authority to review this order on direct appeal. Instead, it treated the notice of appeal as a petition for common law certiorari. Under certiorari review, the circuit court’s review was limited to determining whether the county court departed from the essential requirements of the law resulting in a material injury that would affect the remainder of the proceedings and which could not be corrected through any other means. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Despite this limited standard of review, the circuit court somehow determined the county court had not abused its discretion in granting the new trial.

Both of these actions clearly constitute departures from the essential requirements of the law. First, there is no question that the Housing Authority was entitled to take a direct appeal from the county court’s order. Thus, the circuit court’s decision to treat the notice of appeal as a petition for certiorari constituted a departure from the essential requirements of the law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (noting that “clearly established law” can arise from a variety of sources, including rules of court).

Second, once the circuit court decided to treat the notice of appeal as a petition for certiorari, it could not properly have determined whether the county court abused its discretion because such an inquiry is not found anywhere within the standard of review for common law certiorari. Rather, at that point, the circuit court was limited to determining whether the county court had departed from the essential requirements of the law. Thus, the circuit court also departed from the essential requirements of the law by incorrectly applying the standard of review that it thought applied.

The majority dismisses this clear error by the circuit court, stating that “whether the circuit court heard the case as an appeal or as a petition for writ of certiorari is not particularly pertinent here unless the decision on this issue affected the circuit court’s scope of review.” This statement misstates the law. According to the Florida Supreme Court,

[ojnce the district court determined-from the face of the circuit court order-that the circuit court had applied the wrong law, the job of the district court was ended. In proceeding to apply the right first-tier law, i.e., in evaluating the record for competent substantial evidence to support the Commission’s decision, the district court usurped the jurisdiction of the circuit court.

Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000). Under City of Dania, once this court on second-tier certiorari determines that the circuit court applied the incorrect standard of review, this court’s work is done and this court must remand the case to the circuit court for consideration under the correct standard of review. This court may not usurp the circuit court’s jurisdiction by proceeding to consider the merits of the initial appeal under the correct standard of review. To the extent that the majority suggests that some sort of harmless error analysis of the standard of review is appropriate during this court’s second-tier cer-tiorari review of the circuit court’s order, I respectfully disagree. Thus, at a minimum, I would grant the petition and remand this case to the circuit court for it to conduct a proper review of the county court’s order applying the proper standard of review.

Moreover, even if the circuit court had applied the correct standard of review, I do not see how it could find that the county court did not abuse its discretion in granting the motion for new trial. A trial court may order a new trial on its own initiative “for any reason for which it may have granted ... a new trial on motion of a party.” Fla. R. Civ. P. 1.580(d). Therefore, under the realistic application of this rule, for the county court’s new trial order to have been valid, it must have been granted on grounds that would have been valid had one of the parties moved for a new trial. In other words, the county court does not have unfettered discretion to grant a new trial on grounds not available to the parties.

Here, the tenant could not have received a new trial on her own motion for the grounds provided by the county court, i.e., the alleged sleeping juror, because, as the majority acknowledges, the tenant failed to object at any time to the alleged sleeping juror. The tenant argued in the circuit court that because there was no record evidence to suggest the tenant was aware of this sleeping juror, she should not be faulted for failing to object. This syllogis-tically begs the question. While it is correct that a party may not receive a new trial for failing to object to juror misconduct of which it was aware, Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916), I disagree with the majority that the converse is also true: that a blissfully unaware litigant may serendipitiously receive a windfall benefit of a new trial because she happened not to notice a sleeping juror. This is especially apropos here because during a three-day jury trial, it is patently implausible that not a single litigant or lawyer observed the juror whom the judge later described as “consistently asleep.” The possible “superior vantage point” of the trial judge is too speculative and equally implausible for this court to rely upon, without record foundation, as an excuse for the tenant’s failure to preserve the unperceived somnolence. Yet this seems to be the only basis for the majority’s affir-mance. To affirm the circuit court, the majority had to draw an inference not supported by the record — that the alleged sleeping juror was unobservable to the parties. Moreover, it had to infer that the ciruit court had drawn this same inference, notwithstanding the lack of such findings by the county court.

To add insult to injury, even if the tenant had properly objected to the sleeping juror, she would not have been automatically granted a new trial. To receive a new trial on the preserved error of a sleeping juror, a litigant must show that it was actually prejudiced by the sleeping juror. See Fla. Power Corp. v. Smith, 202 So.2d 872, 879 (Fla. 2d DCA 1967); see also Brooks v. State, 64 So.2d 914, 914 (Fla.1953) (stating that allegations contained in motions for new trial are “not self proving”). A claim of prejudice cannot be based on mere speculation and conjecture. Smith, 202 So.2d at 879. However, in this ease the county court necessarily must have based its conclusion that the tenant was prejudiced on speculation and conjecture because it failed to conduct a hearing to establish whether any prejudice actually resulted from the sleeping juror. The failure to do so here was clearly an abuse of discretion.

Moreover, there is some authority to suggest the trial court’s failure to conduct a hearing before granting a new trial deprived the Housing Authority of due process. See Seaboard Coast Line R.R. v. Magnuson, 288 So.2d 302, 303-04 (Fla. 4th DCA 1974) (stating that when a trial court grants a new trial on its own motion for a reason not argued by the parties at trial, due process first requires notice and a hearing). Here, the county court did indirectly what the tenant could not have done directly, i.e., obtain a new trial without an evidentiary hearing.

“In civil jurisprudence it too often happens that there is so much law, that there is no room for justice, and that the claimant expires of wrong in the midst of right, as mariners die of thirst in the midst of water.” Charles Caleb Colton, available at http://www.theotherpages.org/un-sort05.html (last visited Dec. 11, 2003). Although second-tier certiorari review is clearly narrow, the narrow scope of review should never thwart the ends of justice. Rather, second-tier certiorari review is intended to remedy a miscarriage of justice. See, e.g., Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995). Unfortunately, the majority allows the scope of our review to cause the Housing Authority to “expire[ ] of wrong in the midst of right.” This is a miscarriage of justice. I do not agree with the majority that the Housing Authority’s “right” to its day in court makes the result “less onerous” — the Housing Authority has already had its day in court and prevailed.

The circuit court departed from the essential requirements of the law first by treating the Housing Authority’s direct appeal as a petition for certiorari and then by determining the county court had not abused its discretion. Accordingly, I would grant the Housing Authority’s petition.

      . The fact that the alleged sleeping juror actually denied having slept during the trial in an interview published in The Tampa Tribune and provided by the Housing Authority in the appendix to its petition serves as further reason that a hearing was necessary in this case before the court could order a new trial. A hearing also would have provided an opportunity for the trial court to dispel the apparent inconsistency in ordering a new trial based on prejudice caused by a sleeping juror and denying a new trial on the ground that the verdict was against the manifest weight of the evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry Jude MANKA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1821.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Rehearing Denied June 21, 2004.

      Henry Jude Manka, Fort Lauderdale, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Henry Jude Manka appeals a trial court order which denied his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the motion as it was not properly verified. See Gorham v. State, 494 So.2d 211 (Fla.1986); Scott v. State, 464 So.2d 1171 (Fla.1986). Our af-firmance is on the merits as well, except for appellant’s claim of ineffective assistance of trial counsel for failure to request a complete self defense jury instruction. We find that this claim was sufficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the trial court erred in rejecting it simply because appellant’s co-defendant was convicted in a separate trial where a self defense instruction had been given to the jury.

Therefore, we affirm with prejudice as to all of appellant’s other claims, but without prejudice to appellant’s right to file a properly verified, amended motion for post conviction relief within thirty days of this court’s mandate, raising the claim of ineffective assistance of trial counsel for failure to request a self defense jury instruction.

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.


text:
    Thomas Terrill FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2766.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.
    Rehearing Denied May 20, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Thomas Terrill Foster, Punta Gorda, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

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


author: TAYLOR, J.

text:
    Derrick PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2355.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 8, 2004.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Derrick Peterson appeals his conviction and sentence for attempted second degree murder with a firearm. We find no abuse of discretion in the trial court’s overruling appellant’s objection that the state commented on facts not in evidence during its closing argument. However, we do find reversible error in the trial court’s admission of a witness’s prior consistent statement to a police officer that appellant was the gunman in a drive-by shooting incident.

The trial testimony in this case reflects the following. On the evening of March 2, 2001, Antwan Smith visited the local Elks Club in Fort Pierce. He returned home between 3:00 a.m. and 4:00 a.m. the next morning. Smith lived with his grandmother and other relatives. When Smith arrived home, he called and ordered food from the Rice Hut Restaurant on 25th and Avenue D. He then went outside and sat in his car, listening to music. While sitting in his car, he noticed a car rolling slowly by his home two to three times. In one instance, the car’s headlights were turned off. Giving little thought to what he had seen, he drove to the Rice Hut Restaurant five minutes later to pick up his food order.

As Smith was coming out of the restaurant, he noticed the same car passing by again. Smith got into his car and headed home, taking a different route. A few blocks down Avenue D, Smith saw the car again. Two men jumped in the car and started following him. At one point, the car’s high beam lights flashed at him. Smith hesitated and slowed down, but decided not to stop. When he arrived home, the car was still following him.

When Smith pulled into his driveway and got out of his car, he saw appellant on the passenger side of the other car, hanging out of the window and holding a gun. Smith dashed in front of his car and crouched down to avoid being shot. According to Smith, appellant fired five shots at him and his car. Once the gunfire ceased, Smith went inside his house. His grandmother had already telephoned the police.

Fort Pierce Police Officer Matthew Dewey was dispatched to Smith’s residence to investigate the shooting. Officer Dewey testified that Smith told him that the person who shot at him was nicknamed “Bobo.” On cross-examination, he conceded that he made no mention of Smith’s identification of “Bobo” in his police report and reported, instead, that Smith said he did not know who shot at him.

Although the officer took some photographs of the scene and Smith’s car, and collected gunshot shell casings from around Smith’s home, the investigation did not lead to any physical evidence linking appellant to the gun, the ammunition shells and projectiles, or the vehicle used in the shooting.

Fort Pierce Police Detective Jeff Ham-rick was assigned to investigate the shooting incident on March 3, 2001. He met with Smith on March 9, 2001 to show him a photo lineup. Smith identified appellant from the photo display. Although Detective Hamrick first met with Smith on March 9th, the two had conversed earlier by phone. During the direct examination of Detective Hamrick, the state asked the detective whether, during their phone conversation, Smith had revealed the nickname of the person who shot at him. The defense objected on hearsay grounds. After the court overruled the objection, Detective Hamrick testified that Smith told him that the shooter was “Bobo.”

On cross-examination, Detective Ham-rick conceded that he had been advised earlier that Smith was unable to describe or identify his assailants. During the photo lineup, Detective Hamrick questioned Smith about his reasons for telling Officer Dewey that he did not know who shot at him. According to Detective Hamrick, Smith did not deny that he failed to tell Officer Dewey who shot at him or to provide a description of anyone at the scene.

On appeal, appellant argues that the trial court erred in allowing the state to introduce Smith’s prior statement to Detective Hamrick to support Smith’s trial testimony that appellant was the person who shot at him.

Prior consistent statements are generally inadmissible to corroborate or bolster a witness’s trial testimony, because such statements are usually hearsay. Taylor v. State, 855 So.2d 1, 22-28 (Fla.2003); Chandler v. State, 702 So.2d 186, 187 (Fla.1997). However, prior consistent statements are admissible as non-hearsay if: (1) the individual who made the prior consistent statement testifies at trial and is subject to cross-examination concerning the statement; and (2) the statement is offered in an effort to rebut an express or implied accusation of improper influence, motive or recent fabrication. See Chandler, 702 So.2d at 197-98; see also § 90.801(2)(b), Fla. Stat. (2001). Both conditions must be met for admission of a prior consistent statement as nonhearsay. Harris v. State, 843 So.2d 856, 862 (Fla.2003).

The first condition was met in this case because Antwan Smith testified at trial and was subject to cross-examination regarding his prior consistent statement to Detective Hamrick. However, the second condition was not met, because appellant, through cross-examination, did not expressly or impliedly charge that Smith’s testimony was the product of improper influence, motive or recent fabrication.

Appellant’s theory of defense was twofold: (1) that Smith never actually knew who shot at him, and (2) that he purposefully misidentified appellant as the shooter to get rid of him and allow Smith to move in on appellant’s girlfriend, “Luscious.” Appellant attempted to establish the first part of his defense theory by impeaching the credibility of Smith’s testimony identifying the shooter. He challenged Smith’s ability to observe the shooter and his failure to tell the first officer on the scene who had shot him.

To establish the second part of his defense theory, appellant cross-examined Smith about his motive in identifying appellant as the shooter to Detective Ham-rick several days after the incident. Smith testified that, at the time of the shooting incident, appellant and Luscious were involved in a romantic relationship. Smith denied that he was trying to date Luscious, but acknowledged that she was trying to “talk” to him. Defense counsel’s cross-examination of Smith suggested that this romantic triangle was Smith’s motive for identifying appellant, as the shooter. Appellant contends that he did not impeach Smith’s testimony based on a charge of recent fabrication, but on a claim of consistent fabrication from the start. He points out that Smith’s motive to falsely identify him as the shooter to Detective Hamrick existed when Smith made the prior statement to the officer. Thus, he argues, Smith’s prior consistent statement to Detective Hamrick was not offered to rebut a charge of recent fabrication. See Lamromcz v. State, 561 So.2d 392 (Fla. 3d DCA 1990)(holding that where prior consistent statements are made after the existence of motivation to fabricate testimony, such hearsay statements are not admissible because they are not being offered to rebut an allegation of recent fabrication in order to rehabilitate a witness).

We agree with appellant that the trial court erred in admitting Detective Hamrick’s testimony that the victim identified appellant as the shooter, because the victim’s statement did not qualify as a prior consistent statement to rebut a charge of recent fabrication. This testimony, which served to bolster the credibility of the sole occurrence witness, was particularly prejudicial because it was introduced through a law enforcement witness. As we reiterated in Kendrick v. State, 632 So.2d 279 (Fla. 4th DCA 1994), quoting from Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991):

A witness’s prior consistent statement may not be used to bolster his trial testimony. The rationale prohibiting the use of prior consistent statements is to prevent “putting a cloak of credibility” on the witness’s testimony. When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave.

In this case, where the victim’s credibility was at the heart of the trial and there was no physical, corroborative evidence against appellant, we cannot say that the error was harmless beyond a reasonable doubt. See Hitchcock v. State, 636 So.2d 572 (Fla. 4th DCA 1994)(holding that the trial court committed reversible error in admitting hearsay testimony of expert witness bolstering the victim’s credibility, where determination of the victim’s credibility was at the heart of the trial, given the defendant’s contention that the victim fabricated the allegations against him, and where there was no physical evidence supporting the victim’s testimony and no incriminating statements made by the defendant).

We, therefore, reverse and remand for a new trial.

REVERSE AND REMANDED.

STONE and KLEIN, JJ., concur.

      . “Bobo” is appellant’s nickname.


author: WARNER, J.

text:
    James LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4048.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Rehearing Denied June 14, 2004.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant appeals the trial court’s order revoking his probation as well as the order of restitution. He claims that the trial court revoked his probation because he tested positive for marijuana when drug testing was not imposed as a condition of probation. Because the court found that appellant failed to abide by the conditions of probation by using a controlled substance, this drug testing issue was not properly preserved, and we affirm. However, we reverse the restitution award made to the Broward County Sheriffs Office Restitution Fund because the sheriffs office is not considered a “victim” under the statute authorizing restitution.

In 1991, appellant James Lewis pled to multiple counts of armed sexual battery, robbery, and aggravated battery on an elderly person. The court imposed a negotiated sentence of sixteen and one-half years imprisonment followed by ten years of probation on one count, and concurrent fifteen-year prison terms on the remaining counts. The written order of probation imposed conditions that required appellant not to violate any law or use controlled substances without a prescription and to abide by the instructions of his probation officer.

Appellant was released from prison in 1998 and began serving his probationary term. Approximately three years later the state filed an affidavit of violation of probation which included the following allegations:

Violation of Condition (15), which states, “you shall not do any of the following (without first obtaining the consent of your probation officer), violate any law of any city, county, state, or the United States (a conviction in a court of law is not necessary for you to be found in violation),” in that, the aforesaid, on or about 2/5/01, did possess marijuana as evidenced by the aforesaid testing positive for marijuana as a result of a urine drug test given to him in the DeLand probation office on 2/5/01 with this test being confirmed by PharmChem Laboratories on 2/9/01.
Violation of Condition (J4), which states, ‘You must do each and every of the following, follow carefully and faithfully both the letter and spirit of valid instructions given you by a duly authorized probation officer,” in that, the aforesaid was instructed by his officer to refrain from use of drugs and the aforesaid failed to comply with this instruction on or about 2/5/01 as evidenced by the aforesaid testing positive for marijuana as a result of a urine drug test given to him in the DeLand probation office on 2/5/01 with this test being confirmed by PharmChem Laboratories on 2/9/01.

At the revocation hearing, Lewis’s probation officer testified that he instructed Lewis as to the conditions of his probation, including the requirement not to use controlled substances. When appellant came to the probation office in February 2001, the officer told Lewis that he wanted him to submit to a urine test. Lewis told him it would test positive for marijuana but agreed to take the test. Indeed, the test proved positive for marijuana and was admitted into evidence. The officer had Lewis sign an admission, which was also entered into evidence.

The trial court deferred ruling on the allegation that Lewis violated the law by testing positive for marijuana, but found that he had substantially violated his probation by failing to follow the officer’s instructions on the use of drugs, as well as committing a second violation by driving while his license was suspended.

On appeal, Lewis claims that the court relied on his positive test for marijuana to revoke his probation when drug testing was not a condition of his probation. This issue was never raised in the trial court and was thus not properly preserved for appeal. It is also not fundamental error. The state charged appellant with failing to follow his probation officer’s instructions not to use drugs. The probation order contained a specific condition that Lewis not use controlled substances, and the officer instructed Lewis on this condition. Not only was this proven by the positive drug test which was not objected to at trial on this ground, but it was also proven by Lewis’s own admission. Therefore, no fundamental error is present.

We distinguish Alvarez v. State, 635 So.2d 1053, 1054 (Fla. 4th DCA 1994), in which this court held that the trial court erred in revoking probation based upon a positive drug test where there was no condition requiring testing in the probation order. That case neither involved fundamental error nor a probationer who admitted the violation.

We reverse the order of restitution which required appellant to pay restitution, as mandated by section 775.089, Florida Statutes (2001), to the “Sheriff of Broward County Restitution Fund-BSO Finance Division.” Because the sheriffs office does not meet the statutory definition of “victim” it is fundamental error to order restitution to be paid to the sheriffs office. See Rodriguez v. State, 691 So.2d 568, 569 (Fla. 2d DCA 1997) (citations omitted). Although in some cases a government agency may be a conduit for directing restitution money to the ultimate victim, see Seidman v. State, 847 So.2d 1144, 1146 (Fla. 4th DCA 2003), there is no evidence in this case that the order was intended for a victim. Therefore, the court erred in ordering restitution to the sheriffs office.

Affirmed in part; reversed in part and remanded to vacate the order of restitution.

POLEN and KLEIN, JJ., concur.

      . The state also charged appellant with violating probation by driving with a suspended license. He has challenged the trial court's findings with respect to that condition. However, we affirm on that issue without further discussion. The marijuana violation was clearly the more important of the violations charged.


text:
    Connie BESS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3925.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


author: ERVIN, J.

text:
    Thomas E. SCOTT, Appellant, v. Steven SIMS and Donna Sims, Appellees.
    No. 1D03-1346.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Rehearing Denied June 8, 2004.
    Brian C. Keri, Tallahassee, for Appellant.
    Brent F. Bradley of Kinsey, Troxel, Johnson & Walborsky, P.A., Pensacola, for Appellees.
   ERVIN, J.

This is an appeal from an order granting appellees’ motion for new trial. Appellant argues the lower court erred in granting new trial on the issues of liability and all elements of damages. We affirm as to both issues raised on appeal.

Appellee Steven Sims was injured in a vehicular accident involving appellant Thomas Scott. Sims and his spouse, whose claim was derivative, brought an action against Scott for negligent operation of his motor vehicle. The court directed a verdict in plaintiffs’ favor, ruling that Sims had suffered a permanent injury which was legally caused by defendant’s negligence. The jury returned a verdict, finding the defendant 55 percent negligent, and plaintiff 45 percent negligent. Specific damages were awarded for past and future medical expenses, past and future lost wages, and future pain and suffering, but nothing was returned for past non-economic damages, or for Donna Sims’ loss of consortium. Before the jury was dismissed, Sims pointed out the inconsistencies in the jury’s verdict and requested that the jury reconsider the non-awarded claims. The court declined and discharged the jurors. Thereafter, as stated, the trial court granted plaintiffs’ motion for new trial as to all issues, including those for which damages were awarded.

The parties correctly recognize that a trial court’s grant of a motion for new trial is measured by the abuse of discretion standard. They also recognize that a stronger showing of an abuse of discretion is required to reverse an order granting a motion for new trial than for one denying new trial. See Poindexter v. Seaboard Air Line R. Co., 56 So.2d 905 (Fla.1951), overruled in part on other grounds, Loftin v. Nolin, 86 So.2d 161 (Fla.1956). Appellant argues that new trial should have been accorded only as to the items of damage the jury refused to award, and that the court’s order directing retrial on all issues was an abuse of discretion. In support of his argument, Scott cites this court’s opinion in Frye v. Suttles, 568 So.2d 983, 985 (Fla. 1st DCA 1990), wherein it was stated, in remanding the case for new trial on only one damage issue, “a jury’s finding of comparative negligence accompanied by a clearly inadequate damage award does not always require retrial on all issues.” Nevertheless, Frye further observed that if liability is not clearly established, “an inadequate damage award may be the result of a jury compromise, requiring a new trial on all issues.” Id. at 984-85. As discussed below, it is impossible to ascertain from this record whether the trial court abused its discretion in making an implicit finding that the verdict could have been the product of compromise or confusion. Moreover, the facts in Frye are clearly distinguishable from those at bar. The court below granted the motion for new trial as to all issues, whereas in Frye the trial court issued a blanket denial, and this court reversed the order only as to the consortium claim, for which the jury had awarded no damages. Additionally, the issue of the jury’s inconsistency in awarding damages as to certain items of damages and denying them as to others was clearly brought to the court’s attention before the jury was discharged in the instant case, unlike the facts in Frye.

Initially, we note that courts have generally recognized that before new trial should be allowed on damages alone, a defendant’s liability must be unequivocally established and not substantially disputed at trial; nor can it be the result of the jury’s compromise on the liability issue, whereby the jury interweaves issues of liability and damages inconsistently, thereby implying a compromise on liability or confusion on the law of damages. See, e.g., Een v. Rice, 637 So.2d 331 (Fla. 2d DCA 1994); Lindenfield v. Dorazio by Dorazio, 606 So.2d 1255 (Fla. 4th DCA 1992); Smith v. Turner, 585 So.2d 395 (Fla. 5th DCA 1991); Rivera v. Aldrich, 538 So.2d 1390 (Fla. 3d DCA 1989).

Although Scott admitted negligence in both his answer and his opening statement, and the trial court itself initialed that portion of the verdict form stating that the negligence of Scott, which was admitted, was a legal cause of damage to Steven Sims, we cannot disagree with the trial court’s assessment that “liability was hotly contested” and “not unequivocally established.” During trial, a defense expert witness, qualified in the area of accident reconstruction, opined, based upon the physical evidence he examined at the accident scene, that plaintiff was traveling in excess of the posted speed limit, and that if he had braked his vehicle properly, he should have been able to avoid the accident, despite the defendant’s disregard of a stop sign,at the intersection. Such evidence was clearly designed to suggest to the jury that Steven Sims’ negligence was itself the substantial cause of the accident and his resulting injuries.

We cannot presume from this record that the trial court’s evaluation of the evidence presented during the course of a lengthy trial represents an abuse of discretion. Indeed, the jury’s apportionment of fault, by a ratio of 55-45 percent, may have been strongly influenced by the expert’s testimony. Compare the facts in Een, 637 So.2d at 333, wherein the jury returned a verdict for plaintiff as to medical expenses only, while refusing him non-economic damages. In reversing the order denying new trial, the Second District concluded that the issue of liability was hotly contested by reason of the verdict finding plaintiff 60 percent negligent and defendant 40 percent negligent, and it remanded the case for new trial on both liability and damages.

Entirely independent of the question whether liability is a substantially contested issue before the jury, Florida jurisprudence recognizes an alternative basis for the direction of new trial as to all issues under circumstances where a timely objection is raised to a verdict’s inconsistency, the objection is denied, and the jury is then discharged. The order granting the motion for new trial below correctly noted plaintiffs objection to the verdict on the ground of inconsistency, and cited Berez v. Treadway, 599 So.2d 1028 (Fla. 4th DCA 1992). In Berez, the jury awarded plaintiffs certain items of damages, but denied them others. After the jurors were dismissed, plaintiffs moved for mistrial as a result of an internally inconsistent verdict; mistrial was denied, and plaintiffs subsequently filed a motion for new trial, which was denied. On appeal, the Fourth District reversed and remanded the case for retrial on all issues, holding that “once the jury was discharged the error could not be corrected by recalling the jury.” Id. at 1029. Although not confronted with the question of a verdict’s inconsistency, this court has similarly ruled that after a jury has been discharged and separated, it cannot later be recalled to alter or amend its verdict. See U.S. Fid. & Guar. v. Gulf Fla. Dev. Corp., 365 So.2d 748 (Fla. 1st DCA 1978).

We adopt the reasoning of Berez. In the case at bar, immediately after the rendition of the verdict, Sims objected to the verdict’s internal inconsistency, yet the court denied the objection and dismissed the jury. Sims renewed the objection in the motion for new trial of all issues. A verdict that is both inconsistent and inadequate can be raised by a motion for new trial, even in the absence of an objection to the verdict’s form. See Howard v. Perez, 707 So.2d 845, 847 (Fla. 2d DCA 1998).

In ordering a new trial, the court below found that the verdict was both inconsistent and inadequate. Because we are not prepared to say that reasonable persons could not differ as to the propriety of the action taken by the lower court, the order is

AFFIRMED.

BOOTH, J., and SMITH, Senior Judge, concur.

      . In fact, Scott's counsel argued before the jury that the evidence showed “at least an equal share of fault in this accident between both parties.”

      . We note a division of authority among the courts as to whether an objection only to an inconsistent verdict can be raised for the first time by a motion for new trial. See Simpson v. Stone, 662 So.2d 959 (Fla. 5th DCA 1995), and cases cited therein. We need not enter this fray because, as previously observed, the objection by Sims was timely made.


text:
    Arthur Lee HUGHES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0157.
    District Court of Appeal of Florida, First District.
    April 29, 2004.
    Rehearing Denied June 4, 2004.
    Arthur Lee Hughes, pro se, petitioner.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of counsel is denied on the merits.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    Joseph CARLSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3089.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    C. Michael Barnette, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The motion for rehearing en banc filed by Joseph Carlson is hereby granted. We withdraw our previously issued opinion and substitute the following in its place.

For the reasons explained in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004), we reverse the sentence and remand to the trial court to strike the minimum mandatory provision improperly included in Carlson’s sentence.

REVERSED AND REMANDED.

SAWAYA, C.J., SHARP, W., PETERSON, GRIFFIN, THOMPSON, PLEUS, PALMER, ORFINGER, MONACO and TORPY, JJ., concur.


author: MONACO, J.

text:
    C.H., Mother of A.R., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2698.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.

      Timothy A. Straus of Moyer, Straus & Patel, P.A., Altamonte Springs, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   MONACO, J.

C.H., the biological mother of A.R., appeals from a disposition order and order placing long term custody of A.R. with the child’s stepmother. After careful review, we have concluded that the orders should be affirmed in all respects but two.

Paragraph 7 of the long-term placement order reads as follows:

The parent shall not petition the court for custody of the child unless there is probable cause to believe that this long-term custody is no longer in the child’s best interest and that the parents have demonstrated a material change in circumstances. Substantial compliance with a case plan or the remedy of the reasons for removal will not, standing alone, be sufficient grounds to disturb this long-term custody.

Section 39.622, Florida Statutes (2002), deals with the placement of a child in the long-term custody of an adult relative, or other adult approved by the court who has had custody of the child for at least the preceding 6 months. C.H. correctly points out subparagraph (4) of this statute requires as a condition to long-term custody, that the parties agree “that a long-term custodial relationship does not preclude the possibility of the child returning to the custody of the parent at a later date if the parent demonstrates a material change in circumstances and the return of the child to the parent is in the child’s best interest.” Since the language contained in paragraph 7 of the long-term placement order is contrary to the requirements of the statute, paragraph 7 must be stricken.

In addition, the long-term custody order set a future judicial review hearing. Section 39.622(9), Florida Statutes (2002), says specifically that regular judicial review hearings shall be discontinued. In view of the conflict with the statute, the judicial review provision contained in the order must likewise be stricken.

AFFIRMED in part, REVERSED in part, and REMANDED.

PETERSON and THOMPSON, JJ., concur.


author: WALLACE, Judge.

text:
    GENERAL STAR INDEMNITY COMPANY, Appellant, v. WEST FLORIDA VILLAGE INN, INC., d/b/a Best Western Village, Inc., Appellee.
    No. 2D02-4012.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.

      Janet L. Brown of Boehm, Brown, Fischer & Harwood, P.A., Maitland, for Appellant.
    Matthew R. Danahy of Douglas L. Grose, P.A., Tampa,.for Appellee.
   WALLACE, Judge.

This appeal raises two questions concerning the proper interpretation of provisions for deductibles in a policy of casualty insurance. First, if a policy provision concerning the amount of the applicable deductible is ambiguous, may reference be made to the unambiguous provisions of the insured’s application for insurance and other policy provisions to determine the amount of the' deductible? Second, for the purpose of determining the extent of the insurer’s obligation to pay the insured for loss to covered property under the policy of insurance, is the amount of the deductible to be applied to noncovered loss as well as covered loss under the policy? We answer the first question in the affirmative, answer the second question in the negative, and reverse the final judgment in favor of the insured that ruled to the contrary.

The Facts

West Florida Village Inn, Inc., doing business as Best Western Village Inn (West Florida), rénewed a commercial property insurance policy issued by General Star Indemnity Co. (General Star) to insure the five-building motel complex West Florida operated in Pensacola, Florida. Subject to the terms and conditions of the policy, West Florida paid an annual premium of $21,000 in return for an agreement by General Star to indemnify West Florida for damage caused by covered causes of loss to an aggregate limit of $4,185,600.

On or about September 28, 1998, Hurricane Georges struck the Florida Panhandle with high winds and heavy rain, damaging West Florida’s motel. West Florida consulted a public adjuster to determine its loss and subsequently submitted a claim to General Star to . recover $476,522.07 under the policy. General Star rejected West Florida’s claim, and the dispute was referred to arbitration as provided by the policy. The dispute primarily concerned the policy’s scope of coverage. In its claim, West Florida attributed the cause of loss to “Hurricane George [sic].” Although the policy provided payment for direct physical loss to the property, General Star rejected the claim on the ground that the loss was caused by “wind-driven rain,” which General Star asserted was an excluded cause of loss under the policy. The arbitration panel issued an appraisal award determining the amount of loss payable under the policy — less West Florida’s portion of arbitration expenses — to be $154,710.25. From the appraisal award figure, General Star withheld '$83,712 based on its interpretation of a policy provision calling for a deductible in that amount applicable to loss caused by windstorm and hail. General Star issued payment of $70,998.25 to satisfy West Florida’s claim arising from Hurricane Georges.

West Florida filed suit against General Star for breach of the insurance contract. The complaint asserted that $5,000 was the deductible applicable to windstorm loss, not $88,712. The windstorm deductible provision appeared on a document titled “Multiple Deductible Form,” which was referenced on the declarations page and included in the policy. West Florida contended that the Multiple Deductible Form was ambiguous and must be construed in favor of the insured.

West Florida’s complaint also asserted that regardless of the amount of the deductible, General Star incorrectly applied the deductible to the amount of loss. According to West Florida, because of ambiguity in the deductible provision of the Building and Personal Property Coverage Form, General Star should not have applied the deductible to the amount of loss covered under the policy, which was the appraisal award of $154,710.25. Instead, the deductible should have been applied to the total loss caused by Hurricane Georges, including the covered loss and noncov-ered loss. West Florida alleged the total loss to be $476,522.07 based upon its public adjuster’s prior determination of the total loss. Applying the deductible to the total loss, West Florida would have been entitled to the full amount of the covered loss, $154,710.25, because the difference between the total loss and the covered loss exceeded the amount of the deductible regardless of whether the amount of the deductible was $88,712 or $5,000. Contending that the policy terms were ambiguous and must be construed in its favor, West Florida sued to recover $83,712 that it claimed to be due under the policy.

Following procedural maneuvering not relevant here, the parties submitted the matter to voluntary trial resolution in Hillsborough County pursuant to section 44.104, Florida Statutes (2001). Following a bench trial, the trial resolution judge found “patent ambiguity” in both the Multiple Deductible Form and in the deductible provision of the Building and Personal Property Coverage Form. Construing these provisions in favor of the insured, the trial resolution judge determined the amount of the deductible to be $5,000 and farther found that this amount was absorbed by West Florida’s total loss in excess of its covered loss. The trial resolution judge determined that the amount of loss not covered by the policy exceeded $90,000; thus a deductible of either $5,000 or $83,712 applied to the total loss resulted in General Star’s liability for the full amount of the covered loss, $154,710.25. The trial resolution judge’s final decision awarded West Florida $83,712 as the balance due under the policy. The circuit court entered final judgment enforcing the trial resolution judge’s decision.

The Law

Our review calls for interpretation of the Multiple Deductible Form and the deductible provision of the Building and Personal Property Coverage Form. The standard of review is de novo. See Biltmore Constr. Co. v. Owners Ins. Co., 842 So.2d 947, 949 (Fla. 2d DCA), review dismissed, 846 So.2d 1148 (Fla.2003); Auto-Owners Ins. Co. v. Marvin Dev. Co., 805 So.2d 888, 891 (Fla. 2d DCA 2001). The facts determined in the voluntary trial resolution pro ceeding are not subject to appeal. See § 44.104(11).

General principles of Florida insurance law guide our resolution of this appeal. Like other contracts, contracts of insurance should receive a construction that is reasonable, practical, sensible, and just. Weldon v. All Am. Life Ins. Co., 605 So.2d 911, 915 (Fla. 2d DCA 1992). Terms used in a policy should be read in light of the skill and experience of ordinary people. Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994). Insurance policies will not be construed to reach an absurd result. Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1140 (Fla.1998).

We are mindful that policy provisions excluding or limiting the insurer’s liability are construed more strictly than coverage provisions. Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997). Such limiting provisions must be construed in favor of the insured if they are ambiguous or reasonably susceptible to more than one meaning. Deni, 711 So.2d at 1138. However, the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction. Id. In construing an insurance policy, courts should read the policy as a whole, endeavoring to give every provision its full meaning and operative effect. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Indeed, a single policy provision should not be considered in isolation, but rather, the contract shall be construed according to the entirety of its terms as set forth in the policy and as amplified by the policy application, endorsements, or riders. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003) (citing § 627.419(1), Fla. Stat. (2002)); The Praetorians v. Fisher, 89 So.2d 329, 333 (Fla.1956). The lack of a definition of an operative term does not, by itself, create ambiguity. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998); Great Am. Ins. Cos. v. Souza, 855 So.2d 187 (Fla. 4th DCA 2003). Further, ambiguity does not exist merely because an insurance contract is complex and requires analysis to interpret it. Swire Pac. Holdings, 845 So.2d at 165; Koenigsberg v. Intercontinental Ins. Co., 571 So.2d 578, 579 (Fla. 4th DCA 1990) (construing a deductible provision); Am. Motorists Ins. Co. v. Farrey’s Wholesale Hardware Co., 507 So.2d 642, 645 (Fla. 3d DCA 1987); Travelers Ins. Co. v. C.J. Gayfer’s & Co., 366 So.2d 1199, 1201 (Fla. 1st DCA 1979). Where no ambiguity exists, the policy shall be construed according to the plain language of the policy as bargained for by the parties. Anderson, 756 So.2d at 33.

The Multiple Deductible Form

The Multiple Deductible Form lists two covered causes of loss, “Special” and “Windstorm and Hail,” and two deductible amounts, $5,000 and $83,712. West Florida contends that the spatial arrangement of the phrase “All Covered Causes of Loss except as listed below” in relation to the other items created confusion, suggesting that $5,000 was the deductible applicable to loss caused by windstorm and, presumably, $83,712 was the deductible applicable to all other causes of loss except windstorm.

Standing alone, the Multiple Deductible Form is not a model of clarity. However, the form’s ambiguity is readily resolved when read together with other parts of the contract. First, a quick reference to the policy application resolves any doubt that the $83,712 deductible applies to “Windstorm and Hail” damage. See Mathews v. Ranger Ins. Co., 281 So.2d 345, 348 (Fla.1973) (“The application thus becomes a part of the agreement between the parties and the policy together with the application form the contract of insurance.”); Zenith Ins. Co. v. Commercial Forming Corp., 850 So.2d 568, 570 (Fla. 2d DCA 2008). The renewal application, signed by West Florida’s president and nearly identical to the original application for the previous policy year, bears the phrase “2% wind deductible” once and the phrase “2% wind ded” four times in describing the various coverages for the individual motel buildings. The property was insured to a limit of $4,185,600 of its value. Two percent of $4,185,600 is exactly $83,712. Thus, when the Multiple Deductible Form and the application are read together, it becomes clear that the “2% wind deductible” and the “Windstorm and Hail” deductible both refer to the same amount — $88,712. By contrast, $5,000 is far less than two percent of the insured value of the property and cannot reasonably be confused with the higher amount.

This conclusion is further made plain because the Multiple Deductible Form clearly links “$5,000” to “Special” covered causes of loss, not loss arising from wind damage. In the policy, the Causes of Loss — Special Form defines a “Special” covered cause of loss: ‘When Special is shown in Declarations, Covered Causes of Loss means RISK OF DIRECT PHYSICAL LOSS.” The form then lists numerous exclusions to and limitations on the direct physical loss that is otherwise covered. Thus “Special” covered causes of loss encompass a broad category of all causes of direct physical loss subject to certain exclusions and limitations. The declarations page reveals that all five of the motel buildings are insured for “Special” covered causes of loss. Therefore, the insured is informed that if a building suffers direct physical loss, coverage will be provided if the damage was caused by a covered cause of loss, and this coverage will be subject to the deductible for “Special” covered causes of loss. The Multiple Deductible Form clearly identifies $5,000 as the amount of the deductible for “Special” covered causes of loss. The higher deductible for wind damage appears as an exception to the “Special” deductible for all other causes of loss. Thus, when the application and other parts of the policy are read together with the Multiple Deductible Form, the contract for insurance is clear that the deductible for windstorm damage is $83,712. An insurance policy, though it may be complex, is not ambiguous merely because it requires analysis to interpret it. See Koenigsberg, 571 So.2d at 579.

We note that this is not a case in which the terms of the application conflict with the provisions of the policy. See Padgett v. Horace-Mann Ins. Co., 704 So.2d 627, 629-30 (Fla. 1st DCA 1997) (citing the general rule that where terms conflict, the terms of the policy prevail over the terms of the application except if reliance on the terms of the application would result in greater indemnity). Rather, all of the terms of the contract of insurance, including those of the application, convey one meaning when read together. See Mathews, 281 So.2d at 349. Although the phrase “All Covered Causes of Loss except as listed below” in the Multiple Deductible Form may not have been as artfully drafted and placed as it could have been, the mere fact that a policy provision could have been worded differently does not create an ambiguity when the policy in its entirety is clear. See Swire Pac. Holdings, 845 So.2d at 166.

The Deductible Provision

The deductible provision at issue in this appeal appears in the policy within the Building and Personal Property Coverage Form, which provides, in pertinent part:

D. DEDUCTIBLE
We will not pay for loss or damage in any one occurrence until the amount of loss or damage exceeds the Deductible shown in the Declarations. We will then pay the amount of loss or damage in excess of the Deductible, up to the applicable Limit of Insurance, after any deduction required by the Coinsurance condition or the Agreed Value Optional Coverage.

The form continues with two examples of the deductible provision in operation. West Florida contends that there is an ambiguity in this passage because it refers only to the “amount of loss” and not the “amount of covered loss.” In other words, the deductible is to be applied to the total amount of covered and noncovered loss. In this case, the covered loss caused by Hurricane Georges was determined by the arbitrators to be $154,710.25. The trial resolution judge determined that additional noncovered loss caused by Hurricane Georges exceeded $90,000. Thus the total of covered and noncovered loss was at least $244,710.25, which represented the “amount of loss” to which the deductible was to be applied. According to West Florida, even if the deductible were $83,712, West Florida would still receive the full coverage amount of $154,710.25 after the deductible is applied to the total “amount of loss” of at least $244,710.25. West Florida contends that because the word “loss” is nowhere defined in the policy as limited to covered loss, the phrase “amount of loss” in the deductible provision is reasonably susceptible to a construction in which the deductible should be applied to noncovered loss, notwithstanding other policy provisions, such as the Building and Personal Property Coverage Form’s “loss payment” provision that expressly refers to “covered loss or damage.”

Contrary to West Florida’s contention, the lack of a definition for “amount of loss or damage” does not in and of itself create ambiguity, nor should a single provision be read in isolation. Throughout the policy, “loss” is discussed in the context of coverage; nowhere does the policy suggest that General Star would indemnify West Florida for loss that was not covered by the policy. The initial coverage provision of the Building and Personal Property Coverage Form provides that General Star “will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” Another provision titled “Covered Causes of Loss” references and incorporates the Causes of Loss-Special Form, which provides general coverage for direct causes of physical loss subject to certain exclusions and limitations, as described above. Directly preceding the deductible provision is a section titled “Limits of Insurance,” which indicates that the most General Star would pay for “loss or damage” is the amount of coverage available as shown in the declarations. Following the deductible provision is the “loss payment” provision that contemplates payment for “covered loss or damage.” To construe “amount of loss” as including noncovered loss in this context is contrary to a common sense reading of the policy.

The notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable. One need not look for a policy definition of “amount of loss” when the plain meaning of the word “deductible” provides ample guidance. A “deductible” is “a clause in an insurance policy that relieves the insurer of responsibility for an initial specified loss of the kind insured against.” Merriam-Webster’s Collegiate Dictionary 471 (deluxe ed.1998). A deductible loses its meaning entirely if it is to apply to loss that is not covered by the policy.

“Generally, the functional purpose of a deductible, which is frequently referred to as self-insurance, is to alter the point at which an insurance company’s obligation to pay will ripen.” Int’l Bankers Ins. Co. v. Arnone, 552 So.2d 908, 911 (Fla.1989). As self-insurance, a deductible requires the insured to share in the risk of loss, and worthy social goals are promoted. The insured is given a monetary incentive to fulfill his or her duty to protect and to adequately maintain his or her property as well as a monetary disincentive to file relatively trivial claims, thereby contributing to the reduction of administrative costs and overall costs of insurance. Conversely, applying the deductible to noncovered loss does not serve the goals of having the insured share in the risk. Indeed, it threatens to render the deductible a nullity.

The practical effect of such a construction of this standard-form deductible provision would indeed produce troubling, if not absurd, results. For example, when processing claims, the insurer would be required to adjust loss that was not covered under the policy. Suppose a homeowner’s policy — containing an identical deductible provision as the policy at issue here— covered loss from theft of personal property but excluded jewelry. In the event of a loss including furniture, sporting equipment, and jewelry, for example, it would be necessary to obtain an expensive gemological appraisal or otherwise evaluate the noncovered jewelry in order to adjust the loss. The cost of such an appraisal or valuation would have to be borne by either the insurer or the insured, thereby increasing administrative costs unnecessarily. Under the construction urged by West Florida, the amount payable for a given type of loss would depend on factors outside the contemplation of the contract of insurance. This would make it difficult, if not impossible, for insurers to set predictable rates in order to maintain solvency and stability in the insurance industry.

West Florida does not cite any decisional authority in support of its deductibility theory. To the contrary, one court, considering a comparable casualty policy, has addressed the application of the deductible in the manner suggested by West Florida and rejected it outright. In Shoreline Towers Condominium Owners Ass’n v. Zurich American Insurance Co., 196 F.Supp.2d 1210, 1216 (S.D.Ala.2002), the court said of the insured’s theory of applying the deductible to loss arising from Hurricane Opal, “[the insured’s] contention that the deductible should be applied to the loss caused by both covered and excluded causes of loss is contrary to the plain language of the insurance contract and results in a tortured interpretation of the Policy.” Similarly, in West Florida’s case, we find that applying the deductible exclusively to the amount of covered loss is consistent with the only reasonable interpretation of the contract of insurance read in its entirety. An interpretation to the contrary would be tortured and would lead to absurd results.

For the reasons set forth in this opinion, we reverse the final judgment awarding $83,712 to West Florida and remand for entry of final judgment in General Star’s favor.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., concur.

APPENDIX

      . A copy of this form as it appeared in the record is included with this opinion as an appendix.

        . Insurance Service Office form number CP 00 10 06 95.

      . We note that section 627.701, Florida Statutes (1997), which places certain restrictions upon deductible provisions specific to hurricane damage subject to enforcement by the Department of Insurance, does not apply to the contract of insurance in this case. General Star is an excess lines carrier based in Connecticut and is not subject to regulation by the Florida Department of Insurance.

      . Insurance Service Office form number CP 10 30 06 95.

      . The form continues as follows:
      When the occurrence involves loss to more than one item of Covered Property and more than one Limit of Insurance applies, the Deductible will reduce the total amount of loss payable if loss to at least one item is less than the sum of (1) the Limit of Insurance applicable to that item plus (2) the Deductible.
      Example No. 1:
      (This example assumes there is no coinsurance penalty.)
      Deductible: $ 250
      Limit of Insurance-Bldg. 1: $60,000
      Limit of Insurance-Bldg. 2: $80,000 Loss to Bldg. 1: $60,100
      Loss to Bldg. 2: $90,000
      The amount of loss to Bldg. 1 ($60,100) is less than the sum ($60,250) of the Limit of Insurance applicable to Bldg. 1 plus the Deductible.
      The Deductible will be subtracted from the amount of loss in calculating the loss payable for Bldg. 1:

      The Deductible applies once per occurrence and therefore is not subtracted in determining the amount of loss payable for Bldg. 2. Loss payable for Bldg. 2 is the Limit of Insurance of $80,000. Total amount of loss payable: $59,850 + 80,000 = $139,850.
      Example No. 2:
      (This example, too, assumes there is no coinsurance penalty.)
      The Deductible and Limits of Insurance are the same as those in Example No. 1.

      West Florida cited these examples in support of its argument to the trial resolution judge. However, these examples of the deductible provision in operation illustrate the problem of applying the deductible when the amount of loss caused by an insured cause of loss exceeds the limits of insurance. These examples are not relevant to West Florida's claim because the amount of its insurable loss — that is, the amount of loss determined by the appraisers — was far below the limits of insurance.

      . West Florida’s argument that the coinsurance provision of the policy supports its position is misplaced. The purpose of coinsurance is to increase the risk to the insured when the insured purchases far less coverage than the full value of the property. See generally Couch on Insurance 3d § 220:3-24 (West Group 1999). When a coinsurance provision applies, the insurer does not pay the full amount of loss. Instead, the amount otherwise payable under the policy is reduced in proportion to the extent to which the property is underinsured. Thus the "full amount of loss” in this context necessarily involves a combination of covered loss and loss that is not covered because the insured purchased less coverage than he or she should have. Through coinsurance, the principle of indemnity is upheld by requiring the insured to assume his or her fair share of the risk of loss after the loss occurs. In the policy at hand, after the coinsurance amount is calculated and subtracted from the "full amount of loss,” the appropriate deductible is applied to the remaining amount payable under the policy. The coinsurance provision of the policy is not applicable to West Florida’s claim, as there is no indication that its property was insured for an amount below the coinsurance percentage as stated in the declarations.

      . West Florida has provided this court with excerpts from two editions of a standard insurance claims adjusting text. Property Loss Adjusting 2.16-.19, 3.46-.47 (Donna J. Popow ed., 3d ed. Am. Inst, for Chartered Prop. Cas. Underwriters/Ins. Inst, of Am.2003); Property Loss Adjusting 106-12 (James J. Markham ed., 2d ed. Ins. Inst, of Am.1995). These materials describe how a deductible may be "absorbed" by the total amount of loss when the entire loss is caused by a covered cause of loss and recovery is limited only by the limits of insurance. The examples provided by these materials are similar to the examples provided in the deductible provision of the Building and Personal Property Coverage Form. These materials do not support the theory advanced by West Florida because policy limits are not implicated in this case. Rather, a matter resolved by the arbitrators was whether some of the loss claimed by West Florida was caused by an excluded cause of loss, namely, "wind-driven rain.” The arbitration award reflects the conclusion that some of the damage caused by Hurricane Georges was not covered by the policy because that damage was attributable to an excluded cause of loss. The materials submitted by West Florida do not support the theory that a deductible should be applied against loss caused by an excluded cause of loss under the policy. Our rejection of West Florida’s theory does not bear upon the normal insurance claims adjusting practice of absorbing a deductible when the total amount of loss caused by a covered cause of loss exceeds the limits of insurance for that type of loss.

      . We are aware that the precise wording of the deductible provision in Shoreline Towers differs from the provision at issue here and that the court's analysis of the policy was dicta in light of its finding that the statute of limitations had ran on the insured's causes of action. 196 F.Supp.2d at 1216. Nevertheless, we find the reasoning of the court to be persuasive as it was premised upon a determination that the policy was clear and unambiguous when read in its entirety.


text:
    Douglas M. JACKSON, SR., Petitioner, v. James V. CROSBY, Jr., Respondent.
    No. 1D04-0349.
    District Court of Appeal of Florida, First District.

      May 4, 2004.
    Rehearing Denied June 14, 2004.
    Douglas M. Jackson, Sr., pro se, petitioner.
    Charlie Crist, Attorney General, and Wendy Benner-Leon, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

On April 5, 2004, the trial court entered an order denying petitioner’s pending motions for enforcement of a previous order dated June 26, 2003. Therefore, we grant respondent’s motion to dismiss and dismiss the petition for writ of mandamus as moot.

PETITION DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Marcus L. ISOM, Petitioner, v. STATE of Florida and James V. Crosby, Jr., Secretary, Department of Corrections, Respondents.
    No. 1D04-1492.
    District Court of Appeal of Florida, First District.
    May 5, 2004.
    Marcus L. Isom, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS and POLSTON, JJ., concur.


text:
    Michael A. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0702.
    District Court of Appeal of Florida, First District.
    May 5, 2004.
    Michael A. Robinson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS and POLSTON, JJ., concur.


author: KELLY, Judge.

text:
    MANATEE COUNTY, a political subdivision of the State of Florida, Appellant, v. J. RICHARD KAISER ENTERPRISES, INC., a Florida corporation, Outer-Limits, Inc., a Florida corporation, and Florida Club Concepts Limited Partnership, Appellees.
    No. 2D02-5000.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.
    Rehearing Denied June 10, 2004.
    James A. Minix, Senior Assistant County Attorney, Bradenton, for Appellant.
    Daniel Joy of Law Office of Daniel Joy, Sarasota, for Appellees.
   KELLY, Judge.

Manatee County appeals the dismissal of an order to show cause why the appellees, J. Richard Kaiser Enterprises, Inc., Outer-Limits, Inc., and Florida Club Concepts Limited Partnership (“OuterLimits”), should not be held in contempt for violation of an injunction. We find no abuse of discretion in the trial court’s conclusion that a finding of contempt was not warranted. Nevertheless, we reverse because the trial court erroneously concluded that Manatee County failed to establish that OuterLimits violated the injunction and, thus, did not consider whether OuterLim-its should be declared a nuisance.

OuterLimits is a nightclub catering to young adults. The foundation for this appeal was laid several years ago when Manatee County sought to enjoin OuterLimits as a public nuisance because of excessive noise and disorderly behavior in its parking lot. That lawsuit was the impetus for negotiations between Manatee County and OuterLimits that resulted in OuterLimits consenting to entry of an injunction in which it agreed to limit noise and vibrations emanating from its premises, prohibit any activities on the premises after 2:30 a.m. other than normal cleaning and maintenance, and provide crowd and noise control in its parking lot by employing no fewer than ten off-duty deputies or licensed security service personnel on Friday, Saturday, and Sunday nights. If Out-erLimits failed to fulfill its agreement, the injunction gave the circuit court authority to hold OuterLimits in contempt or to find that it constituted a public nuisance.

OuterLimits subsequently violated the injunction, and Manatee County sought relief. This resulted in an order that found OuterLimits in civil contempt. The problems at OuterLimits continued, however, and Manatee County again sought relief, this time requesting an order of contempt, sanctions, and a declaration that Outer-Limits was a public nuisance. The trial court reopened the case and issued an order to show cause why the relief requested by Manatee County should not be granted. OuterLimits responded with a motion to dismiss the order to show cause.

After an evidentiary hearing, the trial court dismissed the order to show cause. We affirm without comment the trial court’s decision not to find OuterLimits in contempt. However, we find error in the trial court’s failure to consider whether OuterLimits should have been declared a public nuisance. This error by the trial court arose from its interpretation of the injunction. Thus, we review this aspect of the trial court’s order de novo. See Angell v. Don Jones Ins. Agency, Inc., 620 So.2d 1012 (Fla. 2d DCA 1993) (stating that because the interpretation or construction of a written instrument is a matter of law, an appellate court is not restricted in its ability to reassess the meaning and effect of a written instrument to reach a conclusion contrary to that of the trial court).

In pertinent part, the injunction states:

Upon presentation of an affidavit that the Defendants, or any of them, have committed any act prohibited by the injunction, the Court may issue an Order to Show Cause why the Defendants, or any of them, shall not be held in contempt of court or find that the Outer-Limits’ premises constitutes a public nuisance. After an appropriate hearing and upon proper proof, the Court may find the OuterLimits is operating as a public nuisance, and/or order sanctions ....

The trial court issued the order to show cause based upon Manatee County’s affidavits as contemplated by the injunction. However, at the hearing, the trial court prohibited Manatee County from offering evidence to establish that OuterLimits constituted a public nuisance as defined by section 823.05, Florida Statutes (2002).

The trial court placed this limitation on Manatee County because it believed that the only basis upon which it could declare OuterLimits a public nuisance was for violations of the injunction and that if Manatee County wanted OuterLimits declared a public nuisance as defined by section 823.05, it would have to file a separate lawsuit. We find nothing in the injunction that supports the trial court’s conclusion. On the contrary, “proper proof’ to establish that OuterLimits was a nuisance would go beyond what would suffice to prove a violation of the injunction. Proof of a violation simply opened the door to two potential remedies: contempt and sanctions or a declaration of nuisance. While proof to support a finding of contempt would be limited to violations of the injunction, there is no basis to place such a limit on proving that OuterLimits is a public nuisance.

Having limited Manatee County’s evidence to proof of violations of the injunction, the trial court then concluded that Manatee County failed to prove that Out-erLimits violated the injunction. This, too, was error involving the trial court’s interpretation of the injunction.

The injunction provides that it is violated if at least two individuals complain to the sheriffs office regarding excessive noise. The trial court acknowledged that Manatee County had proven the requisite complaints, but nevertheless concluded that this was not enough to establish a violation of the injunction. The trial court based this conclusion on a provision of the injunction that states:

Sounds and/or vibrations at the property line of OuterLimits at all times shall not exceed a level that disturbs the peace, or that may be harmful or injurious to the health and welfare of a reasonable person with normal sensitivities, or which unreasonably interferes with the enjoyment of life, property or outdoor recreation of nearby residents. Complaints to the Manatee County Sheriffs Office made by two or more persons on any given day or night about noise and/or vibrations emanating from OuterLimits shall constitute prima facie evidence that the noise and/or vibration level has exceeded this standard, unless it can be determined objectively by the appropriate sound-measuring equipment that the standard has not been exceeded.

The trial court concluded that this provision could not be enforced because it did not specify who was required to provide the objective evidence, and it did not contain a requirement that OuterLimits be notified of the complaints so it could take sound measurements to rebut the complaints.

As to the latter, it is irrelevant that the terms of the injunction did not require Manatee County to notify OuterLimits of any complaints regarding excessive noise. OuterLimits never argued that the noise provision could not be enforced based on the absence of such a requirement, nor did it ever seek to have the injunction clarified or modified to include such a requirement even though in the past it had been held in contempt for violating the injunction based on excessive noise. The injunction was a product of negotiations between Outer-Limits and Manatee County, and Outer-Limits agreed to be bound by its terms as written. Accordingly, there was no basis for the trial court to refuse to enforce that provision because of a perceived defect that the parties to the injunction never sought to remedy.

As to the former, the injunction clearly places the obligation to take sound measurements on OuterLimits if it wants to rebut noise complaints. In fact, Outer-Limits acknowledged this in its motion to dismiss the order to show cause in which it stated that “[i]f the sheriff receives the requisite number of complaints, the defendants must, according to the order, demonstrate by the appropriate sound-measuring equipment that the standard has not been exceeded.” (Emphasis supplied.) Accordingly, the trial court’s conclusion that the agreement was vague because it did not specify which party was to obtain sound measurements is not supported either by the injunction itself or by Outer-Limits’ own position regarding its obligations under the injunction.

The trial court also erred when it concluded that OuterLimits had not violated the provision in the injunction that required it to maintain adequate security to control noise and crowds. Manatee County presented unrebutted testimony that OuterLimits did not employ enough off-duty deputies or security personnel to maintain crowd or noise control. The trial court itself found that

[t]he County presented a plethora of evidence that even an additional ten deputies is still inadequate security in the parking lot and surrounding areas of the OuterLimits to keep patrons who are leaving the club in the early morning from turning up their boom box stereos as they are leaving the parking lot — the most common complaint from the neighbors, nor is it sufficient to insure the safety of the officers who work there or who are called from other zones to respond to the area. The record is replete with evidence that experienced, informed law enforcement officers are extremely concerned for the safety and welfare of their own and the public.

The trial court nevertheless found no violation, stating that these matters were outside the scope of the injunction.

We believe the trial court erred in its conclusion regarding the scope of the injunction. The trial court relied on the provision in the injunction that states Out-erLimits shall have “no fewer than ten (10) off-duty deputies or other licensed security service personnel” on Friday, Saturday, and Sunday nights. (Emphasis supplied.) The trial court correctly found that Manatee County failed to prove that there were not at least ten security personnel at the club on those days. However, in finding that Manatee County’s evidence went to matters beyond the scope of the injunction, the trial court overlooked the fact that the same provision requiring at least ten deputies or security personnel also states:

The guiding principle shall be that at all times, OuterLimits shall have on the premises sufficient off-duty deputies or licensed private security personnel to maintain crowd and noise control so as not to unreasonably interfere with the enjoyment of life, property or outdoor recreation of neighboring residents, or cause harm or injury to the health and welfare of a reasonable person with normal sensitivities.

Thus, OuterLimits’ ultimate obligation under this provision was not simply to employ ten deputies or security personnel, but rather was to employ enough to control the crowd and the noise. The County’s evidence as described by the trial court established OuterLimits’ failure to satisfy that obligation and thus did not pertain to matters beyond the scope of the injunction.

Because Manatee County satisfied its obligation to prove a violation of the injunction, the trial court should have considered whether to declare OuterLimits a public nuisance. Manatee County was entitled to submit evidence to support such a finding. Accordingly, we reverse. On remand, Manatee County should be given the opportunity to offer additional evidence in support of its request to have OuterLimits declared a public nuisance. If it does not wish to present additional evidence, then the trial court shall make that determination based on the evidence presented at the previous hearing.

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.

      . Manatee County has argued that even with the evidentiary limitations imposed by the trial court, the evidence in the record conclusively proves that OuterLimits is a public nuisance. We have declined Manatee County's invitation to make that determination in this appeal because the trial court has never addressed that issue. Our opinion should not be read to express any position regarding whether the evidence in the record would support such a finding.


author: VILLANTI, Judge.

text:
    Adrian Earl MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1107.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.
    Rehearing Denied June 10, 2004.
    James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Moore entered a no contest plea to possession of an altered or counterfeit driver’s license imposed after the trial court denied his dispositive motion to suppress. Because the counterfeit driver’s license was seized as the result of an illegal search, we reverse the judgment and sentence.

Moore was a passenger in an automobile that police stopped for having an inoperative taillight. When the officer approached the car, it took off and a low-speed chase ensued. Police ultimately stopped the car, ordering the driver and passengers, including Moore, out of the car at gunpoint. The car’s occupants were ordered to he face down on the pavement, where they were handcuffed. An officer then searched their pockets. Although Moore was not placed under arrest following the search of his pockets, the officer pulled Moore’s wallet out of his pocket, opened it, and found the altered driver’s license that was the subject of the motion to suppress. Moore was then arrested for possession of the altered driver’s license.

Moore concedes that the initial stop of the car was proper and that it was proper for the police to order the passengers out of the car pending the completion of the stop. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Smith v. State, 735 So.2d 570 (Fla. 2d DCA 1999). “Nevertheless, the authority to remove [a defendant] from [a] car [does] not automatically confer upon the officer the authority to frisk him.” Smith, 735 So.2d at 572. Instead, the authority to frisk an individual who has been temporarily detained stems from the police officer’s reasonable suspicion that the individual is armed with a weapon. § 901.151(5), Fla. Stat. (2003); State v. Webb, 398 So.2d 820, 824 (Fla.1981) (interpreting the “probable cause” standard enunciated in section 901.151(5) to mean reasonable suspicion). Thus, a police officer must articulate some reasonable basis for believing a person is armed with a weapon before frisking him during a valid vehicle stop. Sutton v. State, 698 So.2d 1321, 1323 (Fla. 2d DCA 1997).

Here, the officer articulated no basis that would justify the need to frisk Moore. Although he stated he believed that all of the passengers in the car were armed, he was not able to provide any factual basis for that belief despite defense counsel’s persistent efforts to get the officer to explain his reasoning. Moore had no bulge in his pockets and made no furtive movements. The officer’s mere belief, not grounded in any factual support, did not justify a frisk of Moore. However, even if the frisk were justified, nothing justified the officer’s removing items from Moore’s pockets without his consent after the initial patdown assured the officer’s safety.

To his credit, the officer stated he would have had no probable cause to arrest Moore but for the search that revealed the altered driver’s license. The State agreed that the ruling on the motion to suppress was dispositive. Because the evidence was seized as the result of an illegal search, we reverse and remand for the trial court to vacate the judgment and sentence.

Reversed and remanded.

CANADY and WALLACE, JJ., Concur.

      . Inside Moore's pockets, the officer found a pocketknife, a checkbook, a wallet, and the driver’s license that is the subject of this appeal. The State has advanced no argument on the relevance of the pocketknife’s discovery to the propriety of the subsequent search of Moore’s wallet.