source: Caselaw Access Project

author: PER CURIAM. COBB, Judge

license: Public Domain

text:
    Christopher Jacques SEYMOUR v. STATE.
    CR-04-1137.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Jan. 27, 2006.
    Christopher Seymour, pro se.
    Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur. BASCHAB and SHAW JJ., concur in the result. COBB, J., dissents, with opinion.

COBB, Judge

(dissenting).

For the reasons I joined Judge Shaw’s special writing in Sullens v. State, 878 So.2d 1216 (Ala.Crim.App.2003)(Shaw, J., concurring in part and dissenting in part), I cannot agree with the conclusion in the unpublished memorandum that the indictment in this case, which failed to allege a culpable mental state, was sufficient to charge the offense of shooting into an occupied dwelling, a violation of § 13A-11-61, Ala.Code 1975. Moreover, unlike Harrison v. State, 879 So.2d 594 (Ala.Crim. App.2003)(Shaw, J., concurring in result) in which I joined Judge Shaw’s special writing, the indictment in the instant case was not amended by a jury charge supplying the requisite intent. Thus, I must respectfully dissent.

      . We have taken judicial notice of the record from the appellant's direct appeal in this case. See Nettles v. State, 731 So.2d 626 (Ala.Crim. Add. 19981.


author: NABERS, Chief Justice.

text:
    Ex parte Christopher Jacques SEYMOUR. (In re Christopher Jacques Seymour v. State of Alabama).
    1050597.
    Supreme Court of Alabama.
    June 30, 2006.
    Christopher Jacques Seymour, pro se.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.
   NABERS, Chief Justice.

The issue presented in this case is whether a conviction is void for lack of subject-matter jurisdiction because the indictment charging the offense omitted an element of the offense. We hold that it is not.

I.

On November 8, 2001, Christopher Jacques Seymour opened fire on a group of five men somewhere in Randolph County. One of the five, Kevin Turner, was shot in his leg below the knee. As Turner retreated into his house, the gunfire continued, and some of the bullets entered Turner’s house. Turner’s wife and three-year-old son were inside the house.

Seymour was convicted of second-degree assault, § 13A-6-21, Ala.Code 1975, and of shooting into an occupied dwelling, § 13A-11-61, Ala.Code 1975. The Court of Criminal Appeals affirmed those convictions on direct appeal, without an opinion. Seymour v. State (No. CR-02-1902), 910 So.2d 834 (Ala.Crim.App.2004) (table).

On January 3, 2005, Seymour filed a Rule 32, Ala. R.Crim. P., petition for post-conviction relief. The trial court denied the petition. The Court of Criminal Appeals affirmed the trial court’s denial of Seymour’s Rule 32 petition in an unpublished memorandum; Judge Cobb dissented from the memorandum affirmance with an opinion. Seymour v. State, 946 So.2d 535 (Ala.Crim.App.2005). In her dissent, Judge Cobb wrote:

“For the reasons I joined Judge Shaw’s special writing in Sullens v. State, 878 So.2d 1216 (Ala.Crim.App. 2003)(Shaw, J., concurring in part and dissenting in part), I cannot agree with the conclusion in the unpublished memorandum that the indictment in this case, which failed to allege a culpable mental state, was sufficient to charge the offense of shooting into an occupied dwelling, a violation of § 13A-11-61, Ala. Code 1975.”

We granted Seymour’s petition for the writ of certiorari to determine whether the failure to allege a culpable mental state in the indictment charging Seymour with the offense of shooting into an occupied dwelling divested the trial court of jurisdiction over that offense.

II.

Seymour argues that in order for him to be convicted of shooting into an occupied dwelling, the State was required to prove that he acted with a culpable mental state. The indictment charging Seymour with that offense failed to allege a culpable mental state. Seymour argues that this omission .was a fatal jurisdictional error.

Our analysis begins with the grounds for preclusion of remedy in Rule 32.2, Ala. R.Crim. P. Seymour did not raise his defective-indictment claim at trial or on direct appeal. See Rule 32.2(a)(3) and (5), Ala. R.Crim. P. Rule 32.2 thus sharply limits the scope of our review.

“A petitioner will not be given relief under this rule based upon any ground:
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

Rule 32.2(a), Ala. R.Crim. P. (emphasis added). The exception under Rule 32.1(b) is limited to claims that “[t]he [trial] court was without jurisdiction to render judgment or impose sentence.”

Seymour argues that his defective-indictment claim is jurisdictional and that it thus falls within the exception provided in Rule 32.2(a) for claims arising under Rule 32.1(b). Under current Alabama caselaw, he is correct. This Court has held that “[a] valid indictment is the source of the subject matter jurisdiction to try a contested criminal case.” Ash v. State, 843 So.2d 213, 216 (Ala.2002). Although Ash is a recent decision, similar language can be found in opinions dating back, in at least one case, more than a century. Butler v. State, 130 Ala. 127, 30 So. 338 (1901); see also Kyser v. State, 22 Ala.App. 431, 117 So. 157 (1928). Alabama law has not always been clear as to which defects will invalidate an indictment, but this Court has expressly held that “[flailure to allege an essential element of the charged offense is a jurisdictional defect....” Ex parte Lewis, 811 So.2d 485, 487 (Ala.2001). Under Lewis, Seymour presents a jurisdictional claim.

In response, the State challenges the statement in Ash that a valid indictment is the source of a trial court’s subject-matter jurisdiction. Instead, the State argues, a trial court derives its jurisdiction from the Alabama Constitution and the Alabama Code. We. agree.

Jurisdiction is “[a] court’s power to decide a case or issue a decree.” Black’s Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court’s power to decide certain types of eases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (“ ‘By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.’ ” (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)(subject-matter jurisdiction refers to a court’s “statutory or constitutional power” to adjudicate a case). In deciding whether Seymour’s claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged and as to which he has filed his petition for certiora-ri review.

Under the Alabama Constitution, a circuit court “shall exercise general jurisdiction in all cases except as may be otherwise provided by law.” Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that “[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ....” § 12-11-30, Ala.Code 1975. The offense of shooting into an occupied dwelling is a Class B felony. § 13A-ll-61(b), Ala.Code 1975. As a result, the State’s prosecution of Seymour for that offense was within the circuit court’s subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case.

The United States Supreme Court has long held that “defects in an indictment do not deprive a court of its power to adjudicate a case.” Cotton, 535 U.S. at 630, 122 S.Ct. 1781. As Justice Holmes stated in Lamar v. United States, 240 U.S. 60, 64, 36 S.Ct. 255, 60 L.Ed. 526 (1916), “[t]he objection that the indictment does not charge a crime ... goes only to the merits of the case.”

A number of states agree. See Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997); Howell v. State, 421 A.2d 892, 895 (Del.1980); Ford v. State, 330 Md. 682, 625 A.2d 984 (1993); Roth v. State, 714 P.2d 216 (Okla.Crim.App.1986); State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990); but see State v. Byington, 135 Idaho 621, 21 P.3d 943 (2001). The Supreme Court of Missouri, addressing this precise issue, framed the issue succinctly: “Subject matter jurisdiction of the circuit court and the sufficiency of the information or indictment are two distinct concepts. The blending of these concepts serves only to confuse the issue to be determined.” State v. Parkhurst, 845 S.W.2d 31, 34-35 (Mo. 1992). We find this approach persuasive and consistent with both the Alabama Constitution and the Alabama Code.

The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonjurisdictional error, such as an illegal seizure or a violation of the Confrontation Clause.

In this case, Seymour failed to raise his defective-indictment claim at trial or on direct appeal. As a result, his claim is barred by Rule 32.2(a)(3) and Rule 32.2(a)(5), Ala. R.Crim. P., and the trial court correctly denied relief.

III.

We hold that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment. To the extent that Lewis, Ash, and other Alabama cases have held to the contrary, they are overruled. The decision of the Court of Criminal Appeals is affirmed.

AFFIRMED.

SEE, LYONS, HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

WOODALL, J., dissents.

      . Seymour does not challenge the Court of Criminal Appeals’ judgment insofar as it affirmed his conviction for second-degree assault.

      . Alabama recognizes four culpable mental states: when a person acts intentionally, knowingly, recklessly, and with criminal negligence. § 13A-2-2, Ala.Code 1975.

      . The language “jurisdiction to render judgment or impose sentence’’ - refers to the court’s jurisdiction over the subject matter, as opposed to the person. Although a court must have both personal jurisdiction and subject-matter jurisdiction in an action, Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911), defects in personal jurisdiction are waived if they are not raised before trial. City of Dothan v. Holloway, 501 So.2d 1136, 1139 (Ala.1986). The Rule 32.1(b) exception applies only to claims alleging that the trial court lacked subject-matter jurisdiction.

      . Because Seymour’s defective-indictment claim is precluded, we do not reach the merits of his argument that an indictment charging a violation of § 13A-11-61 must allege a culpable mental state, and we express no opinion as to the Court of Criminal Appeals’ resolution of that issue.


author: PER CURIAM.

text:
    Juan F. VEGA, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D06-2390.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2006.
    Juan F. Vega, pro se, Petitioner.
    Charlie Crist, Attorney General; Linda Horton Dodson, Assistant Attorney General; and Rosa Carson, General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Juan F. Vega seeks certiorari review of the trial court’s order denying his petition for writ of mandamus, wherein he challenged a disciplinary report issued by the Department of Corrections based upon a violation of prison mailing rules, and of an order authorizing the Department to impose a lien against his trust account for costs and fees of the action. We deny the petition with regard to the disciplinary report, but conclude that the trial court departed from the essential requirements of the law by imposing a lien against Vega’s account. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Terry v. McDonough, 935 So.2d 81 (Fla. 1st DCA 2006).

GRANTED IN PART and DENIED IN PART.

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Herbert DICKEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2489.
    District Court of Appeal of Florida, First District.
    June 16, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   ON MANDATE FROM THE FLORIDA SUPREME COURT

PER CURIAM.

The opinion of February 15, 2005, is withdrawn on the court’s own motion and the following is substituted therefor.

AFFIRMED. State v. Dickey, 928 So.2d 1193 (Fla.2006).

ALLEN, DAVIS, and BENTON, JJ., CONCUR.


author: PLEUS, C.J. PLEUS, C.J.

text:
    C.C., Father of J.C., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1272.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2006.
    Opinion Denying Rehearing and Granting Clarification Oct. 5, 2006.

      Timothy A. Straus, of Moyer, Straus & Patel, Altamonte Springs, for Appellant.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellee.
   PLEUS, C.J.

C.C. appeals an order adjudicating his daughter, J.C., dependent as to him and ordering him to comply with a case plan. We reverse because there was no competent, substantial evidence in the record on appeal that C.C.’s acts of domestic violence occurred in the presence of J.C.

A child may be adjudicated dependent if the court finds by a preponderance of the evidence that the child has been abused. § 39.507(l)(b), Fla. Stat. (2005). “Abuse” is defined as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2005).

Domestic violence between parents may constitute abuse if the parent “[ejngages in violent behavior that demonstrates a wanton disregard for the presence of the child and could reasonably result in serious injury to the child.” § 39.01(3)(i), Fla. Stat. (2005). We have previously interpreted the above provision as requiring proof that the child sees or is aware of the violence occurring. D.D. v. Dep’t of Children and Families, 773 So.2d 615, 618 (Fla. 5th DCA2000).

C.C. correctly argues that the trial court failed to find that any domestic violence occurred in the presence of his child. After an adjudicatory hearing, the trial court drafted a memorandum to counsel, finding in pertinent part that C.C. had engaged in domestic violence with the mother “in front of his young child.” The court directed counsel for DCF to prepare an order. The order recited the court’s findings verbatim, except that it deleted the words “in front of his young child.” Although it appears to us that this discrepancy was an oversight which could easily be corrected on remand, we have reviewed the hearing transcript and cannot find any evidence that any domestic violence occurred in the presence of J.C. Thus, the dependency order is not supported by competent, substantial evidence and must be reversed. D.D.

Accordingly, we remand to allow DCF, if it chooses, an opportunity to present additional evidence in support of its claim of prospective abuse. Otherwise, the trial court shall conduct a disposition hearing at which C.C., as a non-offending parent, would be entitled to custody of J.C. upon obtaining a positive home study, unless the court finds that placement with C.C. would endanger J.C. See § 39.521(3)(b), Fla. Stat. (2006).

REVERSED and REMANDED.

ORFINGER and MONACO, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

PLEUS, C.J.

We deny C.C.’s Motion for Rehearing and grant his Motion for Clarification. Upon remand, if DCF chooses to present additional evidence of prospective abuse, C.C. may also present evidence. If not, the trial court shall conduct a disposition hearing in accordance with section 39.521(3)(b), Florida Statutes. It was not the intention of this Court to permit or require the trial court to make a determination based solely on a home study. Any reference in our prior opinion to a “positive” home study is hereby stricken.

Motion for Rehearing Denied; Motion for Clarification Granted; Remanded.

ORFINGER and MONACO, JJ., concur.


author: WARNER, J.

text:
    PHARMCORE, INC. and USA Express, Inc., Petitioners, v. CITY OF HALLANDALE BEACH, Florida and The City Commission of the City of Hallandale Beach, Florida, Respondents.
    No. 4D05-3735.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 2006.
    Rehearing Denied Feb. 9, 2007.

      Stephen T. Maher of Shutts & Bowen LLP, Miami, for petitioners.
    Douglas R. Gonzales and Jamie Alan Cole of Weiss Serota Helfman Pastoriza Cole & Boniske, P.A., Ft. Lauderdale, for respondents.
   WARNER, J.

Petitioners seek certiorari review of an order of the circuit court denying their petition for certiorari from a determination of the City Commission of Hallandale Beach. The City dénied a permit to change the copy on a non-conforming business sign. Given the very limited parameters of second-tier certiorari review, we deny the petition, as the circuit court provided due process and applied the correct law.

Pharmcore leased a business property from USA Express (collectively referred to hereinafter as Pharmcore). The City of Hallandale’s Code Enforcement Board found Pharmcore in violation of various ordinances for failure to repair sidewalks and conform to landscaping and parking requirements. Pharmcore sought appellate review of that decision in the circuit court. Although not addressed by the Board’s decision, Pharmcore received notice from the City that the pole sign on its property was nonconforming to the current sign code. The parties ultimately reached a settlement agreement, wherein Pharmcore agreed to certain repairs, and the City agreed to permit the nonconforming sign upon Pharmcore’s application for a permit for the sign. The agreement was signed for the City by the assistant city attorney.

Despite the agreement, the City staff denied the application, stating that Pharm-core had not made a timely submission of its permit. Pharmcore appealed to the City Commission. At the hearing, the staff expressed other reasons for denying the permit, to which Pharmcore objected based upon lack of notice. These included the fact that the pole sign was prohibited in the zoning district in which the property was located. Pharmcore also objected to the procedures used at the hearing, although these were adopted by the City in 2003 for quasi-judicial proceedings. Later, the city attorney also claimed that the settlement agreement was unauthorized as the City had not ratified it. After the hearing, the City Commission voted to deny the permit.

Pharmcore then petitioned the circuit court for relief, claiming that the City had violated its procedural due process rights. In a written opinion, the judge recited the correct standard of review as set forth in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). He denied the petition on the ground that the settlement agreement was not ratified by the City Commission and therefore the City would not be bound by its terms. In essence, he found that the settlement agreement amounted to a variance from the sign code which only the city manager or the commission could approve. Without elaboration, the decision stated that the court had reviewed the record and found that petitioners were afforded due process.

Pharmcore now requests that this court review the decision of the circuit court. Pharmcore complains that the City denied it due process through its deficient notice of denial of the permit, which did not include the grounds on which it relied at the hearing. The City failed to sustain its objections to this lack of notice as well as to its objections to procedural irregularities which occurred at the City Commission hearing. After the City pointed out in its response to the petition that Pharmcore is not complaining of the circuit court’s denial of procedural due process, Pharm-eore replied that the circuit court departed from the essential requirements of law by failing to grant the writ based upon the City’s denial of due process.

The scope of review on a petition for certiorari is now well-settled and very limited. As stated most recently in Bro-ward, County v. G.B.V. International, Ltd., 787 So.2d 838 (Fla.2001):

The Court in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), delineated the standards of review for local agency action at both the circuit and district court levels. The inquiry at both levels is deliberately circumscribed out of deference to the agency’s technical mastery of its field of expertise, and the inquiry narrows as a case proceeds up the judicial ladder. “First-tier” cer-tiorari review is three-pronged, and “second-tier” certiorari review is two-pronged:
Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine [1] whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines [1] whether the circuit court afforded procedural due process and [2] applied the correct law.
Vaillant, 419 So.2d at 626.

787 So.2d at 843 (footnotes omitted).

Applying the correct law incorrectly to the facts of the case does not warrant certiorari review. See Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000). This is because certiorari review is not to be merely a second appeal. “District courts have never been allowed to review decisions, under the guise of certiorari jurisdiction, simply because they are dissatisfied with the result of a decision of a circuit court sitting in its appellate capacity.” Id. at 683.

In this case, Pharmcore has presented nothing to suggest that the circuit court applied the incorrect law regarding procedural due process, other than to say that the judge reached the wrong result. The circuit court appropriately noted the scope of its review under Vaillant. It found that procedural due process had been provided to Pharmcore. Whether or not that determination was proper, there is.no indication that the wrong law was applied. Second-tier review is not available to review the application of the correct law to the facts.

For this reason, we deny the petition.

KLEIN and GROSS, JJ„ concur.


text:
    Darren ETHRIDGE, Petitioner, v. FLORIDA DEPARTMENT OF REVENUE and Tracy Moorer, Respondents.
    No. 1D06-4552.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2006.
    Rehearing Denied Jan. 22, 2007.
    Darren Ethridge, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Moore v. Corr. Med. Serv., 817 So.2d 963 (Fla. 1st DCA 2002).

WOLF, LEWIS, and THOMAS, JJ., concur.


author: SHAHOOD, J.

text:
    Antwane M. FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3201.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 2006.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This issue involves whether appellant may be prosecuted for possession of a firearm by a convicted felon after a jury previously acquitted him of attempted first-degree murder based upon the same facts. We hold that because the jury did not have to factually decide whether appellant possessed a firearm in the first trial, the State is not collaterally estopped from bringing the second charge.

The facts surrounding the charge of attempted first-degree murder involve appellant’s confrontation with Ronald Youmans, the victim. Both sides dispute who actually possessed the firearm and how Youmans was shot, whether it was by appellant himself or Youmans by accident. The gun itself was never recovered. The jury found appellant not guilty of attempted first-degree murder, leaving blank a question on the verdict form as to whether appellant actually possessed a firearm during the commission of the crime.

More than a year later, a trial was held on appellant’s charge of possession of a firearm by a convicted felon based on the same incident in the previous trial. The jury found appellant guilty as charged and that appellant actually possessed a firearm during the commission of the crime.

The doctrine of collateral estop-pel “bars relitigation of the same issues between the same parties in connection with a different cause of action.” Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). However, “collateral estoppel does not apply if the verdict could be grounded upon an issue other than that which the defendant seeks to foreclose from consideration.” State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA), rev. denied, 602 So.2d 942 (Fla.1992). In determining whether collateral estoppel acts as a bar to further prosecution, the test is “not whether the factual issue in question was inherently decided by the jury’s prior verdict, but rather whether such factual issue was actually decided by the jury in reaching its verdict.” Id. at 1268.

In a similar situation, the court found that a second prosecution for firearm possession was estopped by the first trial regarding armed robbery in Morris v. State, 869 So.2d 1264 (Fla. 3d DCA 2004). Because the jury acquitted the defendant in the first trial, it necessarily concluded that no encounter occurred between the defendant and the victim; therefore, the court concluded there could be no possession, as the evidence only identified the robber in possession of the firearm. Id. at 1266.

In contrast, a defendant charged with armed robbery and acquitted was allowed subsequently to be prosecuted for unlawful possession of a firearm in State v. Har-wood, 800 So.2d 308 (Fla. 3d DCA 2001). The parties agreed in the first trial that there was an encounter between the defendant and victims, but disagreed on what happened during the encounter. Id. at 309. Whether the defendant actually possessed a firearm was not necessarily determined by the jury. Id.

We distinguish this court’s prior decision in Davis v. State, 645 So.2d 66 (Fla. 4th DCA 1994). In Davis, this court held that a subsequent prosecution and conviction for possession of a firearm by a convicted felon was barred by collateral estoppel. The defendant was previously acquitted of aggravated assault and carrying a concealed weapon. What differentiates the finding in Davis■ with the case at hand is that in Davis the jury also found in the first trial that the defendant was not guilty of the lesser included charge of improper exhibition of a firearm. Id. at 67. The court reasoned that without the jury’s decision on the lesser, it would be possible for the prior convictions not to foreclose possession of a weapon. Id. at 68. A not guilty verdict on the lesser offense led the court to the inescapable conclusion that the jury necessarily decided that the defendant did not possess a firearm. Id.

Based on the above, collateral estoppel does not bar a subsequent prosecution for possession of a firearm by a convicted felon in this case. The jury in appellant’s first trial found only that he was not guilty of attempted first-degree murder and made no decision as to whether he actually possessed a firearm. Without a determination of possession in the first trial, prosecution for possession is not barred in the second trial.

Affirmed.

STONE and HAZOURI, JJ., concur.


author: GRIFFIN, J. PLEUS, C.J.,

text:
    Sigfredo IRIZARRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4274.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Rehearing Denied Jan. 16, 2007.
    James S. Purdy, Public Defender, and Rebecca M. Becker and Michael S. Becker, Assistant Public Defenders, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Brigid E. Collins, Kellie A. Nielan and Pamela J. Roller, Assistant Attorneys General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Sigfredo Irizarry [“Irizarry”]' appeals the consecutive minimum mandatory sentences he received following his convictions for robbery, kidnapping; and burglary. We reverse.

On December 26, 2003, Irizarry entered the Lake Mary 8 Theater. The last movie of the night was about to end, and Assistant Manager, Lance White [‘White”] was shutting down equipment in an area of the theater restricted to employees. White saw Irizarry in the employees-only area and asked if he could help him. Irizarry then drew a semi-automatic handgun and ordered White into the office. He told White, “I want the safe. I want all the money. Be really quiet or I will shoot you.”. As White struggled to open the safe, Irizarry put the gun to White’s back and said, “I’m going to end you.” He ordered White to put the cash, deposit slips, and receipts into a bag.

Christopher Harris [“Harris”], who had been waiting for White, then knocked on the office door to see what had been delaying him. In response, Irizarry opened the door, pointed the gun at Harris’ face, and ordered him to lie face down on the floor. Irizarry took the batteries from each victim’s cell phone, directed White to tie up Harris, and then proceeded to bind White and gag both victims. After he finished gagging the victims, Irizarry fled out a back door. Shortly thereafter, Irizarry was captured by the police.

Irizarry was charged with two counts of robbery with a firearm, two counts of kidnapping with a firearm, burglary of a structure with an assault or battery, and possession of a firearm by a convicted felon. As charged, each offense was subject to the 10-20-life statute, which governs sentencing for specified offenses involving a firearm. See § 775.087(2), Fla. Stat. (2003). In accordance with this statute, each of Irizarry’s first five charges was punishable by a mandatory minimum sentence of ten years and a maximum of life imprisonment. The possession charge was punishable by a mandatory minimum sentence of three years and a maximum of fifteen years imprisonment. Irizarry pled no contest and was adjudicated guilty of each of the six counts.

On November 28, 2005, the trial court held a hearing to determine Irizarry’s sentence. The State computed Irizarry’s sentencing range under the Criminal Punishment Code Score Sheet as between 18.6 years and life. The State argued that the minimum mandatory sentences should run consecutively, totaling 53 years. The State contended that the Florida supreme court’s opinion in State v. Sousa, 903 So.2d 923 (Fla.2005), ■ supported this position. During the sentencing hearing, defense counsel disagreed that the trial court had the authority to impose Irizarry’s sentences consecutively. Defense counsel urged that the State misread Sousa. Accepting the State’s position, the trial court said:

I want the record to reflect that my reading of the case of Adam Sousa reported at 903 So 2d [sic] 923 requires the imposition of consecutive sentences.

At issue is the meaning of section 775.087(2)(d), Florida Statutes (2003):

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall-impose any term of imprisonment provided for in this subsection consecutively to any oth er term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Fla. Stat. (2003) (emphasis added). In Sousa, the defendant shot two of his three victims in rapid succession during a single criminal episode. Sousa, 903 So.2d at 924. Sousa was subsequently convicted of two counts of attempted murder with a firearm, and one count of aggravated assault with a firearm. Id. The trial court imposed consecutive minimum mandatory sentences. The issue presented on appeal was whether the trial court had the authority to impose the minimum mandatory sentences consecutively. Id. Relying on Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), the Second District Court reversed the trial court and held that section 775.087(2)(d) prohibited the trial court from imposing the sentences consecutively. Id. at 927. The Florida supreme court reversed the Second District Court and affirmed the trial court’s sentence. Id. at 928.

The Sousa court proceeded in its analysis of the sentences by first considering whether the trial court would have had the authority to impose consecutive minimum mandatory sentences before the 10-20-life statute amended section 775.087 in 1999, and then considering how, if at all, the trial court’s authority was limited by these amendments.

In considering the extent of the trial court’s authority prior to the 1999 amendments, the Sousa court discussed its decisions in Palmer v. State, 438 So.2d 1 (Fla. 1983), State v. Thomas, 487 So.2d 1043 (Fla.1986), and State v. Christian, 692 So.2d 889 (Fla.1997). These cases recognize that it is the legislature who decides what portion of their sentence convicts must serve before becoming eligible for parole. Sousa, 903 So.2d at 924-25. Courts cannot exceed such terms by imposing mandatory minimum terms for related offenses consecutively. Id. The Sousa court relied on its opinions in Palmer, Thomas, and Christian to explain when the trial court may impose mandatory minimum sentences consecutively, without exceeding its authority.

The Sousa court explained that Palmer stands for the proposition that the trial court cannot impose mandatory minimum sentences consecutively for offenses arising out of the same criminal episode. Sousa, 903 So.2d at 925 (citing Palmer, 438 So.2d at 4). In Thomas, the court held that firearm offenses arising from a single episode are sufficiently separate to permit the imposition of consecutive mandatory minimum sentences when the defendant separately shot at more than one person. Thomas, 487 So.2d at 1044-45. Finally, in describing this line of case law, Sousa cites Christian for the proposition that consecutive sentencing of mandatory minimums is permissible for offenses arising from a single episode where the offenses caused “injury to multiple victims or multiple injuries to one victim.” Sousa, 903 So.2d at 925 (citing Christian, 692 So.2d at 890-91). Specifically, the Christian court said:

The injuries bifurcate the crimes for stacking purposes. The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.

Christian, 692 So.2d at 890-91. The Sousa court concluded that the trial court had the authority under Christian to consecutively impose the defendant’s minimum mandatory sentences. Sousa, 903 So.2d at 926.

The Sousa court next considered whether the 1999 amendments to section 775.087 altered the law announced in Christian. The court wrote:

We disagree that section 775.087 as amended still does not-permit consecutive sentencing. To draw that conclusion we would have to find that the 1999 amendment to section 775.087 overrules our decisions in Christian and Thomas. We do not agree. Rather we conclude that this amendment to the statute is consistent with the decisions in Christian and Thomas.

Sousa, 908 So.2d at 927. Sousa thus appears to stand for the proposition that the 10-20-life statute did not diminish the trial court’s authority, as interpreted by prior case law, to impose mandatory minimum sentences consecutively.

Irizarry’s argument on appeal is that the trial court erred in interpreting Sousa to mean that it had to consecutively impose Irizarry’s mandatory minimum 10-20-life sentences. The State argues that the trial court properly ordered the minimum mandatory sentences to run consecutively, because “Sousa held that the plain language of section 775.087(2)(d) demands consecutive mandatory mínimums.” Moreover, the plain language of the statute, standing alone, requires imposition of the sentences consecutively. The problem with the State’s argument is that it misunderstands the holding in Sousa. Sousa is clear that Christian and Thomas still apply in determining when minimum mandatory sentences for 10-20-life offenses may be consecutively imposed. Christian and Thomas provide that consecutive mandatory mínimums are not permitted where a defendant does not fire the weapon.

It is undisputed that each of Irizarry’s offenses was a 10-20-life offense, that each offense arose from a single criminal episode, and that, during this criminal episode, Irizarry did not injure multiple victims or cause multiple injuries to any one victim. Nor did he fire his gun. Thus, under Christian, the trial court did not have the authority to consecutively impose Irizarry’s minimum mandatory sentences. Accordingly, we vacate the sentences and remand for resentencing.

Sentence VACATED and REMANDED.

ORFINGER, J., concurs.

PLEUS, C.J., concurs and concurs specially, with opinion.

PLEUS, C.J.,

concurring specially.

I reluctantly concur. Judge Griffin’s analysis of Sousa appears to me correct. Even though I disagree with the supreme court’s interpretation of the statute, we are obliged to follow the law as set forth by the supreme court. Were it not for that obligation, I would affirm the trial court. Section 775.087(2)(d) says what it says in unambiguous terms.


text:
    Gerald D. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6092.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2006.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Terry P. Roberts, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant pled no contest to the manufacture of methamphetamine after the trial court denied his motion to suppress the physical evidence obtained pursuant to a search warrant issued for appellant’s camper. Appellant argues on appeal that the trial court erred in denying his motion to suppress because the affidavit in support of the search warrant relies on three separate anonymous tips to create probable cause without establishing the informants’ veracity. Because we hold that under the totality of the circumstances the affidavit provided sufficient probable cause for the issuance of a search warrant, we affirm.

BACKGROUND

On June 28, 2005, an application and affidavit for search warrant was filed by Investigator Jake Richards and provided the following relevant information:

Your Affiant states that on June 6, 2005, Deputy Greg Skipper developed a source of information' that advised him of a man named “Dean,” who was staying in Parker Farm Campground, was manufacturing methamphetamine in his camper; Your Affiant states directions were given to Deputy Skipper, by this source of information, to the camper. Your Affiant states that the source of information has ties to the campground. Your Affiant states the source of information stated that “Dean” had cooked up or manufactured. Your Affiant states the source of information further stated he/she could smell chemical smells at night coming from the camper, which is the dwelling to be searched. Your Affiant further stated that “Dean” drives a 1970⅛ model maroon van.
Your Affiant states that based upon this information, Your Affiant traveled to Parker Farm Campground. Your Af-fiant states following the directions provided by the source of information, Your Affiant located the camper that was described to Deputy Skipper. Your Affi-ant states that parked in front of this camper, which is the dwelling to be searched, was a maroon in color van that displayed Florida tag number 105442. Your Affiant states that a check with the Department of Highway Safety and Motor Vehicles computer system show [sic] this vehicle to be registered to a subject identified as Gerald Dean Green. Your Affiant states a check on the criminal history of Gerald Dean Green shows that he has prior arrests for narcotics related offenses.
Your Affiant states that on June 8, 2005, Your Affiant received a fax form [sic] CrimeStoppers in reference to Dean Green. Your Affiant states this tip stated that Green lived in a camper at Parker Farm Campground and that he was cooking methamphetamine in the camper, which is the dwelling to be searched, and further stated he kept his lab in a cabinet in the camper bathroom.
Your Affiant states that on June 24, 2005, Your Affiant was contacted by Captain Rickie Ramie of the Bay County Sheriffs Office Special Investigations Division. Captain Ramie stated he was contacted by Lieutenant Rad Nelson of the Bay County Sheriffs Office Field Services Division who had developed a source that had information about a subject known to the source as Dean Green who lived in Wewahitchka. Your Affiant states that on June 24, 2005, Your Affi-ant spoke with the confidential informant who stated that he/she had been inside the residence of Dean Green, which is the dwelling to be searched, on several occasions and had observed Green manufacturing methamphetamine within the dwelling to be searched. Said confidential informant stated that Green explained to him/her that Green had been manufacturing methamphetamine for the past twenty (20) years and that he did not plan to stop. Said confidential informant further stated that Green manufactures or “cooks” methamphetamine two or three times per week and always • has finished methamphetamine on hand. Said confidential informant further stated that Green keeps most of the components for the methamphetamine laboratory in the dwelling to be searched and some additional components in the storage area on the outside of the trailer. Your Affiant further states the items described by the confidential informant included acetone, mu-riatic acid, and pseudoephedrine based cold medicines. Your Affiant further states the confidential informant made these observations within the dwelling to be searched within the past twenty day period.

A search warrant was issued, and a large number of items were seized from appellant’s residence that formed the basis for the charge.

Prior to trial, appellant filed a motion to suppress arguing that the search warrant was insufficient on its face and it was based on information from confidential sources whose reliability was not established within the probable cause affidavit. The trial court denied the motion, and appellant pled no contest to the charge, reserving the right to appeal the denial of the motion to suppress, which the parties stipulated was dispositive. On November 15, 2005, appellant was adjudicated guilty and was sentenced to five years probation. On appeal, appellant challenges whether the affidavit supplied sufficient probable cause for issuance of a search warrant.

ANALYSIS

In determining whether probable cause exists to justify a search, the trial court must make a judgment based on the totality of the circumstances, as to whether the information given indicates a fair probability that contraband will be found in a particular place and time. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Gates Court stated:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

State v. Peterson, 739 So.2d 561, 564 (Fla. 1999) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317). “Because the sufficiency of the search warrant is an issue of law, this court must review the trial court’s order by the de novo standard.” State v. Eldridge, 814 So.2d 1138, 1140 (Fla. 1st DCA2002).

“Hearsay information provided by a confidential informant can be sufficient to support a search warrant, see State v. Wolff, 310 So.2d 729, 733 (Fla. 1975), provided the affidavit' satisfies the Gates test. See State v. Butler, 655 So.2d 1123, 1126-30 (Fla.1995).” Peterson, 739 So.2d at 564. As provided in Gates, “ ‘[v]e-racity’ and ‘basis of knowledge’ are among the factors to be considered in assessing the reliability of an informant’s information.” Id. These elements should not “be understood as entirely separate and independent requirements to be rigidly exacted in every case,” but should “be understood simply as‘ closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’- to believe that contraband or evidence is located-in a particular place.” Gates, 462 U.S. at 230, 103 S.Ct. 2317. The elements are “relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for; in determining the overall reliability of the tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233, 103 S.Ct. 2317.

In this case, the affidavit did not allege that any of the three confidential sources had been used before by law en-foreement or that the information they provided was reliable. However, because this case involved three confidential informants, “the credibility of each was bolstered by information imparted by the otherfs], especially where there was independent verification.” State v. Enstice, 573 So.2d 340, 342 (Fla. 5th DCA 1990) (citing Rowell v. State, 544 So.2d 1089, 1092 (Fla. 1st DCA 1989)). ■ In this case, the affiant independently investigated the first tip and found appellant’s camper and van from the description, and verified that the van was indeed owned by appellant. Additionally, the affiant did a check on the criminal history of appellant and found that he had prior arrests for narcotics related offenses. This investigation corroborates the third informant’s statements that appellant said that he had been manufacturing methamphetamine for the past twenty years and did not plan to stop.

Additionally, the three confidential informants provided information independently through different means. See United States v. Roland, 133 Fed.Appx. 660 (11th Cir.2005) (finding that an affidavit provided sufficient probable cause for the search warrant issued where “[t]he affidavit was supported by the statements of three separate, unrelated confidential informants, two of whom made statements based upon their personal knowledge, two of whom made statements against penal interest, and all of whom each approached a different law enforcement officer with his claim”). The first informant provided information to Deputy Greg Skipper. The second informant faxed his or her information to CrimeStoppers. The third informant provided information to Lieutenant Rad Nelson of the Bay County Sheriffs Office.

In addition, Gates provides that “even if we entertain some doubt as to an informant’s motives, his explicit- and detailed description of alleged wrongdoing, along with the statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234, 103 S.Ct. 2317. In this case, two of the informants had personal knowledge of the alleged wrongdoing. The first informant stated that he or she could smell chemical smells at night coming from appellant’s camper. The third informant stated that he or she had been inside the residence of appellant on several occasions and observed appellant manufacturing methamphetamine. Further, this third informant gave an explicit and detailed description of the alleged wrongdoing. The informant said that appellant told him or her that he had been manufacturing methamphetamine for 20 years and did not plan to stop. Additionally, the informant stated that appellant cooked methamphetamine two or three times a week and always had the finished product on hand. The informant stated that appellant keeps most of the components in the dwelling and some in an outside trailer. The informant further described some of the components including acetone, muriatic acid, and pseu-doephedrine based cold medicines.

When taken together, the above facts provide sufficient evidence of the informants’ reliability pursuant to Gates. Accordingly, there was sufficient probable cause for the issuance of a search warrant.

Therefore, the search warrant issued in this case was supported by sufficient probable cause based on the totality of the circumstances, and the trial court did not err in denying appellant’s motion to suppress. Accordingly, we affirm.

AFFIRMED.

BARFIELD, PADOVANO, and POLSTON, JJ., concur.

      . Prior appellate decisions have provided that the verification of innocent details such as the location of the residence as described by the confidential informant does not establish the veracity of the confidential informant. See McNeely v. State, 690 So.2d 1337 (Fla. 1st DCA 1997); Gillette v. State, 561 So.2d 4 (Fla. 5th DCA 1990). However, in this case, the affiant did not rely only on the verification of the location of appellant's camper and vehicle, but also found that appellant had prior arrests for narcotics related offenses. Additionally, unlike the cited cases, the affiant also relied on tips from two other informants which corroborated the first tip.


author: LAGOA, J.

text:
    Carlos SANCHEZ, Appellant, v. CENTURY EVERGLADES, LLC., Appellee.
    No. 3D06-1153.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      Howard J. Hollander, Miami, for appellant.
    Jorge L. Piedra and Veronica A. Diaz, Coral Gables, for appellee.
    Before GREEN, RAMIREZ, and LAGOA, JJ.
   LAGOA, J.

Appellant Carlos Sanchez (“Sanchez”) appeals from an interlocutory order following an evidentiary hearing, which order required Sanchez to transfer property to Appellee Century Everglades, LLC (“Century”). Because Sanchez, a third-party defendant below, was not provided a full and fair opportunity to present evidence, we reverse.

I. FACTUAL HISTORY.

On January 26, 2004, the Eleventh Judicial Circuit in and for Miami-Dade County entered a judgment against Alberto Hernandez (“Hernandez”) on claims that he had abused his position as Century’s credit manager and defrauded the company by converting its profits to his own use. Hernandez never satisfied the judgment. After more than one year, Century served Sanchez with a third-party complaint alleging that Hernandez is the owner of real property and a Rolex wrist-watch in Sanchez’s possession. Sanchez filed an answer to the third-party complaint denying the allegations and asserting that he is the proper owner of both the real property and the wrist-watch.

Upon Century’s motion to initiate supplementary execution proceedings, the trial court ordered Sanchez and Hernandez to appear for an evidentiary hearing to determine ownership of the property. While Hernandez did not appear, Sanchez and his attorney did appear. The trial court, however, did not permit Sanchez to participate in the evidentiary hearing, as the court found that Sanchez was only a “material witness” and therefore lacked standing to present evidence. Although Century was permitted to offer evidence and to present portions of Sanchez’s deposition testimony, Sanchez was not allowed to present any evidence or to cross-examine any of Century’s witnesses.

After hearing Century’s evidence, the trial court ruled that Sanchez acted as a straw purchaser for the real property and that the wrist-watch had been given to Sanchez in an attempt to defraud Century. Sanchez was ordered to turn over the wrist-watch, and Century was permitted to initiate proceedings to levy upon the real property.

II. STANDARD OF REVIEW.

“Determining whether a party has standing is a pure question of law to be reviewed de novo.” Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003). See Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005).

III. ANALYSIS.

It is well-settled that a party holding a claim adverse to both plaintiff and defendant must be brought into supplementary execution proceedings as a third-party defendant and given a full and fair opportunity to be heard before any adverse order may be entered:

If during the course of proceedings supplementary to execution the rights of third parties claiming adversely both to plaintiff in execution as well as to defendant in execution appear to be involved, no rights of such third parties should be adjudged to be affected, impaired, or finally cut off by any order of court made in such proceedings supplementary to execution, unless such third parties have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims as parties entitled to a full and fair hearing ..., and not as mere spectators or bystanders in the cause.

Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935) (emphasis in original). See, e.g., Meyer v. Faust, 83 So.2d 847, 848 (Fla. 1955); Juno By The Sea Condo Apartments, Inc. v. Juno By The Sea North Condo. Assoc., Inc., 419 So.2d 399, 400 (Fla. 4th DCA 1982); Manor Grove Land Corp. v. Salkay, 390 So.2d 121, 122 (Fla. 4th DCA 1980); Art Adver. Co., Inc. v. Associated Press, 340 So.2d 1291, 1292 (Fla. 2nd DCA 1977). Here, Sanchez was denied his due process rights by the trial court’s failure to allow him to act as anything but a “spectator” at a hearing in which his property was at stake.

Because a third-party defendant has an undeniable right to participate in supplementary execution proceedings, it follows that such parties must have standing to appeal an order denying that right. Accordingly, we deny Century’s motion to dismiss this appeal and reverse and remand for an evidentiary hearing in which Sanchez is accorded full participatory rights.

Reversed and remanded for further proceedings consistent herewith.

      . The trial court's order specifically refers to Sanchez as "third-party defendant."

      . Century's argument that Sanchez never filed an affidavit with the county sheriff, pursuant to sections 56.16-56.20, Florida Statutes (2005), asserting that the property belongs to him is without merit. Those sections relate to third party claims after property has been levied upon. See Section 56.16, Florida Statutes (2005). Hére, Sanchez properly asserted his third-party rights in proceedings supplementary, prior to any levy on the property.


author: DAVIS, Judge.

text:
    Ceasar ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3327.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.
   DAVIS, Judge.

Ceasar Robinson appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court failed to conclusively refute Robinson’s ineffective assistance of counsel claim, we reverse the postconviction court’s order.

In circuit court case CF04-003765-XX, Robinson entered a no contest plea pursuant to a negotiated plea agreement with the State to driving while license suspended or revoked (habitual traffic offender). The written plea agreement signed by Robinson included a cap of six months’ county jail to be followed by twenty-four months’ probation. The trial court deferred sentencing until February 24, 2005.

However, Robinson failed to appear at the February 24, 2005, sentencing hearing, and the trial court issued a “no bond capi-as.” On May 21, 2005, Robinson was arrested. On June 9, 2005, the trial court sentenced Robinson to five years’ prison. This court affirmed the judgment and sentence. See Robinson v. State, 926 So.2d 1284 (Fla. 2d DCA 2006) (table decision).

In his rule 3.850 motion, Robinson alleged counsel was ineffective for failing to object and failing to file a motion to withdraw plea when the trial court sentenced Robinson to five years’ prison in violation of the plea agreement. He alleged that on February 24, 2005, the date he was ordered to return before the trial court for sentencing, he contacted his counsel and advised him that he was going to be late to the sentencing hearing because he had a flat tire. Robinson further alleged that even if his timely appearance for the sentencing hearing was part of the negotiated plea agreement, nothing in the record demonstrates that Robinson’s late arrival was willful. Robinson relied on Lee v. State, 471 So.2d 195 (Fla. 4th DCA 1985), Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987), Green v. State, 680 So.2d 1072 (Fla. 4th DCA 1996), and Valladares v. State, 754 So.2d 190, 191 (Fla. 3d DCA 2000), to support his claim. Lastly, he alleged that if he would have known that his negotiated sentence would be increased, he would have taken his chances at trial.

The postconviction court denied the claim, finding that Robinson signed a written plea form containing the provision, “I understand that if I fail to timely appear for my pre-[s]entence [ijnvestigation interview or [sentencing that my plea will stand but the sentencing agreement is void and I may then receive the maximum sentence authorized by law.” The postconviction court further found that Robinson admitted in his motion that he knew the terms of the plea, that he entered the plea freely and voluntarily, that he signed the plea form, that he fully understood the plea, and that he understood that the maximum penalty was five years’ prison. Therefore, the postconvietion court found that counsel was not ineffective for failing to object to the increased sentence or for failing to file a motion to withdraw Robinson’s plea.

“[W]here timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson, 501 So.2d at 160-61. If the trial court failed to make a finding that Robinson willfully violated the plea agreement by failing to appear at the Fébruary 24, 2005, sentencing hearing, Robinson may be entitled to relief on his ineffective assistance of counsel claim. The limited record before this court does not indicate whether the trial court made a finding that Robinson willfully violated the terms of the plea agreement by failing to timely appear for the February 24, 2005, sentencing hearing. Accordingly, we reverse the postconviction court’s denial order. On remand, the postconviction court shall either attach additional record evidence conclusively refuting Robinson’s claim or hold an evidentiary hearing.

Reversed and remanded.

STRINGER and YILLANTI, JJ., Concur.


author: LaROSE, Judge.

text:
    William RASMUSSEN, Appellant, v. COLLIER COUNTY PUBLISHING COMPANY d/b/a Naples Daily News; Gina Edwards; Denise Zoldan; and Jeffrey Lytle, Appellees.
    No. 2D05-6144.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.

      Joel S. Magolnick and Farah J. Martinez of De La 0, Marko, Magolnick & Leyton, P.A., Miami, for Appellant.
    Denis L. Durkin and Celina C. Candes of Baker & Hostetler LLP, Orlando; Bruce W. Sanford and Mark I. Bailen of Baker & Hostetler LLP, Admitted Pro Hac Vice, Washington, DC, for Appellees.
   LaROSE, Judge.

William Rasmussen appeals the trial court’s final summary judgment entered in favor of Collier County Publishing Co., d/b/a Naples Daily News, and three of its individual writers or editors (collectively, the Daily News). The trial court concluded that no genuine issue of material fact remained for trial in Mr. Rasmussen’s libel suit; the articles and editorials about which he complained were not false and were otherwise protected speech under the fair report privilege or as opinion. We affirm.

Background

Mr. Rasmussen, an entrepreneur who established ESPN, was the founder of Stadium Naples, a golf resort to be built in northeast Naples. The project needed investors and developers. Although our record reflects an extensive history of the Stadium Naples project, suffice it to say that various events between January 1, 1995, and December 12, 2000, ultimately raised suspicions of self-dealing and public corruption. As a result, the Governor appointed a special prosecutor to investigate Stadium Naples. In October 2001, the special prosecutor charged ten defendants, including Mr. Rasmussen, with racketeering, unlawful compensation, conspiracy to launder money, and conspiracy to commit money laundering. This case became known as the “public corruption” case.

Subsequently, the Governor expanded the special prosecutor’s authority, allowing her to investigate all matters arising from and relating to the Stadium Naples project. On February 19, 2002, the special prosecutor charged Mr. Rasmussen with fraud relating to Stadium Naples. Private investors were the victims of this so-called “stock fraud” case.

In late August 2002, Mr. Rasmussen reached a plea agreement with the State. In exchange for his truthful testimony in the “public corruption” case, the State would dismiss the charges against him in that case. In the “stock fraud” case, Mr. Rasmussen would plead guilty to reduced misdemeanor charges on two counts; the State would dismiss the other counts. The State could void the plea agreement and reinstate charges against Mr. Rasmussen in the public corruption case if he lied. Under the agreement, Mr. Rasmussen could not revoke his plea in the stock fraud case. The trial court accepted the plea agreement and, on January 9, 2004, sentenced Mr. Rasmussen to probation.

Over a seven-year period, the Daily News published hundreds of articles about Stadium Naples and its eventual demise. These articles detailed the project’s history, its participants, and the resulting criminal charges. Soon after he was sentenced to probation, Mr. Rasmussen sued the Daily News for libel. Allegedly, approximately three dozen articles or editorials published by the Daily News between July 16, 2002, and January 11, 2004, were false. The nub. of Mr. Rasmussen’s lawsuit was that these articles or editorials stated that he pleaded to “reduced or related charges,” suggesting that he pleaded guilty to charges in the public corruption case when, according to Mr. Rasmussen, the State dropped those charges. In his lawsuit, Mr. Rasmussen also labeled as libelous various articles about his alleged misspending or mishandling of public funds and his alleged dishonest dealings with county commissioners, charities, and investors.

The Daily News moved for and obtained summary judgment in its favor. The trial court found that: (1) the charges against Mr. Rasmussen in the public corruption and stock fraud cases were related; (2) the Daily News’ use of the “reduced and related charges” terminology summarized the disposition of charges against numerous defendants and did not constitute a false statement of fact about Mr. Rasmussen; (3) the Daily News’ reporting, based on official public documents or information received from government officials, was subject to the fair report privilege; and (4) the complained-of editorials, read in context, were opinion and not libelous.

Analysis

Our review of a summary judgment is de novo. In re Githens, 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). We view every possible inference in favor of Mr. Rasmussen. But, if there is no genuine issue of material fact remaining for trial, we must affirm the entry of the summary judgment. Id.

To prevail in a libel' action, Mr. Rasmussen, who conceded that he was a public figure, had to prove that the Daily News published defamatory statements that were (1) statements of fact, (2) false, and (3) made with actual malice (knowledge of their falsity or with reckless disregard of their truth or falsity). See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Zorc v. Jordan, 765 So.2d 768, 771 (Fla. 4th DCA 2000). Because the parties did not argue the actual malice element in the trial court or before u's, we limit our review to the first two elements.

The trial court rejected Mr. Rasmussen’s claim that the public corruption case and the stock fraud cases were unrelated. We agree. The scope of the special prosecutor’s authorization and Mr. Rasmussen’s plea agreement amply support the trial court’s conclusion that the cases, indeed, were related. Our record does not support Mr. Rasmussen’s contrary view. The Daily News did publish a clarification on September 29, 2002:

The charge in the public corruption case against Stadium Naples founder Bill Rasmussen has been dropped. An article on Page ID of the Sept. 21, 2002, edition of the Naples Daily News did not differentiate between two separate criminal cases involving Rasmussen and the failed Stadium Naples arena. Late last month, Rasmussen pleaded guilty to two misdemeanor counts of making false statements in connection with a separate stock fraud case involving Stadium Naples. In exchange for his plea in the stock fraud case and a promise to cooperate in the public corruption case, the racketeering conspiracy charge against Rasmussen in the public corruption case was dropped.

But, although the two cases were separate, they certainly were related. Both included criminal charges stemming from the Stadium Naples project. Mr. Rasmussen’s plea to reduced charges in the stock fraud case was conditioned upon his truthful testimony in the public corruption case.

In conveying news and comment to its readers, the Daily News need not describe legal proceedings in technically precise language. See Clark v. Clark, No. 93-47-CA, 1993 WL 528464 (Fla. 4th Cir. Ct. June 22, 1993) (citing Rouch v. Enquirer & News, 440 Mich. 238, 487 N.W.2d 205, 218-19 (1992)), aff'd, 641 So.2d 866 (Fla. 1st DCA 1994) (stating that journalists should' have certain leeway in their choice of language when covering the criminal justice system). The trial court concluded correctly that the publications were substantially truthful and, consequently, not libelous.

The trial court also found that the fair report privilege applied to the articles. The Daily News has a qualified privilege to report accurately on information received from government officials. See Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla. 4th DCA 1997) (citing Woodard v. Sunbeam Television Corp., 616 So.2d 501, 502 (Fla. 3d DCA 1993)). The privilege extends to the publication of the contents of official documents, as long as the account is reasonably accurate and fair. Id. The trial court concluded, and we agree, that the Daily News fairly and accurately described matters of public record, including the criminal informations, the Governor’s executive orders appointing a special prosecutor, Mr. Rasmussen’s plea agreement, and reports by government officials that Mr. Rasmussen pleaded to “related charges.” Accordingly, the fair report privilege shielded the Daily News from libel. Id.

Finally, the trial court concluded that the challenged editorials were based on publicly disclosed facts and were expressions of opinion. Again, we agree with the trial court. In assessing whether an allegedly libelous statement is opinion, the court must construe the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication. Hay v. Indep. Newspapers, Inc., 450 So.2d 293, 295 (Fla. 2d DCA 1984). The court must consider the context in which the statement was published and accord weight to cautionary terms used by the person publishing the statement. It must take into account all of the circumstances surrounding the publication, including the medium by which it was disseminated and the audience to which it was published. Id. Whether a statement is one of fact or one of opinion is a question of law. Id. Commentary or opinion based on facts that are set forth in the article or which are otherwise known or available to the reader or listener are not the stuff of libel. Id.

The Daily News’ editorials were based on facts disclosed in the articles themselves or in the extensive coverage that the Daily News afforded to the Stadium Naples controversy. See id.; From v. Tallahassee Democrat, Inc., 400 So.2d 52, 56-57 (Fla. 1st DCA 1981). The trial court correctly concluded that the editorials were not actionable.

Conclusion

The trial court thoroughly addressed each article and editorial that Mr. Rasmussen challenged as libelous. Our de novo review leads us to the same conclusion that the trial court reached: no genuine issue of material fact remained for trial and the Daily News was entitled to judgment in its favor as a matter of law.

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . Four articles about which Mr. Rasmussen initially complained concerned a co-defendant in the public corruption case. In oppos-mg summary judgment in the trial court, Mr. Rasmussen did not address those articles; he abandoned his claims based on those articles.


text:
    THE HARP GROUP, INC., Appellant, v. Helmut W. LEINS, Appellee.
    No. 3D06-2242.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.

      DLA Piper U.S. LLP and Ronald S. Holliday and S. Douglas Knox, Tampa and James R. Nelson, Dallas, TX, and Jennifer A. Lloyd, Austin, TX, for appellant.
    Holland & Knight LLP and Wilfredo A. Rodriguez and Martha R. Mora and Frances F. Guasch, Miami, for appellee.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The appellee’s motion to dissolve a preliminary injunction below was granted without an evidentiary hearing on the ground that the court lacked “jurisdiction.” This was clearly erroneous since the court possessed both subject matter jurisdiction of a proceeding for injunction, see Sirgany Int’l, Inc. v. Miami-Dade County, 887 So.2d 381, 383 (Fla. 3d DCA 2004), and personal jurisdiction over the defendant-appellee through personal service in Florida. The order on appeal is therefore reversed and the preliminary injunction reinstated forthwith pending a full hearing on the merits of the motion to dissolve the injunction.

Reversed.


author: KELLY, Judge.

text:
    REO PROPERTIES CORPORATION and Branch Banking & Trust Company, Appellants, v. Robert BINDER, Appellee.
    Nos. 2D06-1091, 2D06-1104.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.

      William R. Fischer, Douglas C. Zahm, and Douglas M. Bales of Douglas C. Zahm, P.A., Clearwater, for Appellant REO Properties Corporation.
    David S. Hendrix and Kim Hernandez Vance of Gray Robinson, P.A., Tampa, for Appellant Branch Banking, & Trust Company.
    Joshua Magidson and Nancy S. Paikoff of Macfarlane Ferguson ⅛ McMullen, Clearwater, for Appellee Robert 'Binder.
   KELLY, Judge.

The appellants, REO Properties Corporation (REO Properties) and Branch Banking &' Trust Company (BB & T), appeal from the order of the trial court setting aside a foreclosure sale based on an objection by the losing bidder at-the sale. Because the objecting party failed to establish a valid basis for setting aside the sale, we conclude that the trial court abused its discretion and accordingly reverse.

REO Properties and BB & T held the first and second mortgages on property that was to be sold at a foreclosure sale. BB & T, the second mortgage holder, was the high bidder at the sale. When BB & T tendered its check to the clerk of the court, appellee Robert Binder, who had placed the second highest bid, complained to the clerk that BB & T’s check “was not according to the instructions read by the Clerk of the Court prior to the commencement of the sale.” An associate of Binder’s tendered checks- and cash to the clerk urging the clerk to accept them rather than BB & T’s check. After reviewing the checks, the clerk’s office announced it would conduct a new sale, a procedure it employed when á successful bidder failed to pay the required deposit. Binder was the highest bidder in this round of bidding although his bid was substantially lower than BB & T’s bid in the first round. While this was going on, BB & T was attempting to get the clerk’s office to accept its check. Ultimately, the clerk’s office agreed the check was proper and accepted it, returned Binder’s cash and checks, and issued a certificate of sale to BB &T.

Binder filed an objection, stating that the sale should be set aside because “BB & T did not present an ‘official check’ or ‘money order’ ” as required by the rules read by the clerk at the beginning of the sale. Binder’s objection stated that accepting BB & T’s check was “contrary to accepted rules established by the Clerk of no personal checks. ‘Official Check’ ‘Money Order’ or ‘CASH’. No Exceptions!” After an evidentiary hearing, the trial court entered an order sustaining Binder’s objection to the sale. In addition to setting aside the sale, the trial court ordered the clerk to issue a certificate of sale to Binder.

REO Properties and BB <& T challenge the trial court’s order on several grounds. As a threshold matter, they contend that Binder had no standing to object to the form of the check. A losing bidder has standing to complain that a particular bid is not valid because he has a direct financial interest by virtue of his own bid. Heilman v. Suburban Coastal Corp., 506 So.2d 1088, 1090 (Fla. 4th DCA 1987). However, that standing is “confined to the issue of whether the amount of the bid exceeds his own and whether payment in accordance with the successful bid is forthcoming.” Id. In the absence of fraud in the bidding, “a stranger to the foreclosure action does not ... acquire standing to complain of supposed defects in the foreclosure proceedings.” Id. Binder objected to the form of the check BB & T submitted to the clerk. He did not allege that any fraud had occurred in the bidding process nor did he contend that BB & T’s payment to the clerk was not “forthcoming.” Thus, his objection was not one that he had standing to make.

Moreover, his objection fails on its merits. Binder’s objection was based on the erroneous assertion that the clerk’s announced policy required either an “official check,” money order, or cash as the exclusive methods of payment. The announced policy says nothing about “official checks” and while it lists cash, cashier’s check, or money order as acceptable forms of payment, it does not indicate that there are “no exceptions.” At the evidentiary hearing, a supervisor from the clerk’s office testified that the office regularly accepted checks that were not cashier’s checks provided the funds were guaranteed. After Binder complained about BB & T’s check, the clerk’s office verified that it represented guaranteed funds. The clerk did not act contrary to its announced policy, and it was within the clerk’s discretion to accept BB & T’s check at the conclusion of the bidding process and hold it until it could verify the funds were guaranteed. Cf. Smith v. First Nat’l Bank of Pompano Beach, 336 So.2d 448 (Fla. 4th DCA 1976) (noting that clerks may exercise some discretion in obtaining payment from the successful bidder at a foreclosure sale). Finally, REO Properties and BB & T argue, and we agree, that even if Binder had presented a valid basis to set aside the sale, the only remedy available to the trial court was to require another sale, not to award the property to the second highest bidder. See Heilman, 506 So.2d at 1090.

We find no legal significance in the fact that the clerk acceded to Binder’s initial complaint regarding the form of BB & T’s check and allowed Binder another opportunity to bid while precluding BB & T from doing so. Binder improperly interjected himself into the clerk’s decision to accept BB & T’s check. The subsequent bidding that occurred was at best premature because the clerk’s office was still considering whether BB & T’s payment was acceptable. The clerk’s office acted properly when it finally issued the certificate of sale to the highest bidder, BB & T. The second round of bidding occurred only because of Binder’s improper interference, and the fact that it occurred should not confer on Binder more of an interest in the proceedings than he would have had if he had simply filed an objection to the sale rather than trying to thwart it.

Accordingly, we reverse the order vacating the sale to BB & T and we remand to the trial court to reinstate the clerk’s certificate of sale that was issued to BB & T.

Reversed and remanded.

WALLACE, J., and ROBERTS, CHARLES E., Associate Judge, Concur.


text:
    Robert Allen MORSE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2149.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2006.
    Rehearing Denied Jan. 24, 2007.
    Robert Allen Morse, pro se, Petitioner.
    Rosa Carson, General Counsel, and Monica Ryan, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

BROWNING, C.J., WOLF, and KAHN, JJ., Concur.


author: WEBSTER, J.

text:
    Keith DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5707.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Arguing that the trial court erroneously denied his dispositive motion to suppress, appellant seeks review of his conviction for possession of marijuana with intent to sell, manufacture or deliver it. We agree that a seizure occurred for Fourth Amendment purposes when appellant was “asked” by a sheriffs deputy to exit the car in which he had been a passenger and put his hands on the car’s roof, so that appellant’s immediately ensuing “consent” to a search of his person was no more than a submission to authority. As a result, the marijuana found during the search should have been suppressed. Because this issue is disposi-tive of the case, we reverse and remand with directions that the trial court enter an order discharging appellant.

Viewed in a light most favorable to the state, the facts are as follows. At approximately 7:15 p.m. on the evening of November 13, 2004, a car in which appellant was a passenger was stopped by a uniformed Escambia County sheriffs deputy because it had run a stop sign. A second deputy arrived to assist. The car was a rental, with a Maryland tag. Upon request, the driver produced the rental contract and his driver’s license. The deputy asked appellant for identification. Appellant said he did not have his license with him, but gave his correct name. Finding nothing out of order, instead of giving the driver a citation and permitting the car to proceed on its way, the deputy asked the driver “if he had anything illegal on his person or in the car.” The driver responded that he did not, whereupon the deputy asked for consent to search the car. The driver gave his consent. The deputy then walked to the passenger side of the car, and “asked” appellant to step out so that he might search the car. As soon as appellant opened the door, the deputy “asked” appellant to “place his hands on top of the car.” While appellant was in that position, the deputy asked if appellant “had anything illegal on his person.” Appellant responded that he did not, whereupon the deputy “asked for consent to search his person.” Appellant gave his consent, whereupon the deputy proceeded to frisk him. During the frisk, a bag fell out of appellant’s pant leg. The deputy asked what was in the bag, and appellant responded that it contained a quarter pound of marijuana. At that point, appellant was arrested, and the driver was given a citation for running a stop sign. It is undisputed that, until appellant had been frisked, the deputy had no reason to believe that appellant had committed any crime, or that he was armed.

Appellant was subsequently charged with selling, manufacturing or delivering marijuana, or possessing marijuana with intent to sell, manufacture or deliver it. He filed a motion to suppress, arguing that, when he was “asked” to get out of the car and put his hands on the roof, he was “seized” for Fourth Amendment purposes because a reasonable person in that position would not have felt free to leave. Accordingly,- he further argued that the “consent” to search his person which was given while he was standing with his hands on the roof of the car was nothing more than a submission to authority and, therefore, the marijuana found during the search must be suppressed. The state responded that appellant had not been seized at any time prior to his consent to search, and that, therefore, his consent was voluntary. The trial court agreed with the state, holding that appellant’s consent had been voluntary and, accordingly, denying the motion to suppress. Appellant subsequently pled-guilty as charged, and was sentenced to one year and a day in state prison. The parties and the trial court all agreed that the ruling on the motion to suppress was dispositive for appellate purposes. This appeal follows.

Our supreme court has said that appellate courts should ... accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but ... must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.

Connor v. State, 803 So.2d 598, 608 (Fla. 2001) (footnote omitted) (relying on Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). Thus, when determining whether a defendant had been seized for Fourth Amendment purposes at the time he or she consented to a search, appellate courts must give deference to the trial court’s findings as to historical facts, but they are obliged to review de novo both the choice of law and the application of that law to the facts. Id. (citations omitted).

There is no suggestion in this case that the search of appellant’s person may be justified by either reasonable suspicion or probable cause. The search must stand or fall on the validity of the consent given by appellant. As our supreme court has held,

when consent is obtained after illegal police activity .such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search.... The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break-in the chain of illegality sufficient to dissipate the taint of prior official illegal action.

Noman v. State, 379 So.2d 643, 646-47 (Fla.1980) (citations omitted). Because appellant’s consent to the search occurred immediately after the claimed seizure, it is clear that, if there was an illegal seizure, there was no break “sufficient to dissipate the taint” of that seizure, and the state does not argue otherwise. See Ippolito v. State, 789 So.2d 423, 426 (Fla. 4th DCA 2001). Accordingly, we must determine whether appellant was seized for Fourth Amendment purposes when he was “asked” to put his hands on the roof of the car. Because the state has essentially conceded that the deputy did not have probable cause to seize appellant until he frisked appellant and found the marijuana, if appellant was seized at that point, the resulting search was illegal, and the marijuana should have been suppressed.

Although not free of difficulty in application, the test to be applied to determine whether a particular encounter amounts to a seizure for Fourth Amendment purposes is now well established— “to determine whether a particular encounter constitutes a seizure, a cohrt must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Common sense leads us to conclude that a reasonable person told by an armed, uniformed deputy to exit a vehicle and place his or her hands on the roof of the vehicle would not feel free to decline and walk away. Other courts have reached the same conclusion. See, e.g., United States v. Brown, 401 F.3d 588, 594-95 (4th Cir.2005) (defendant was seized when he submitted to an officer’s “request” that he lean toward, and place his hands on, a car); McNeil v. State, 746 So.2d 547, 548 (Fla. 5th DCA 1999) (defendant “was seized when the officer ordered him to place his hands on the back of the patrol car”); State v. Brown, 616 So.2d 124, 126 (Fla. 2d DCA 1993) (a consensual encounter turned into a “stop” when an officer told defendant to put his hands on the police cruiser). See also D.N. v. State, 805 So.2d 63, 65 (Fla. 3d DCA 2002) (defendant was seized when the officer ordered him to step out of the car and put his hands in the air). The state argues that no seizure occurred because the deputy merely “asked” appellant to exit the car and put his hands on the roof. However, our supreme court has held that whether the directive is characterized as a request or an order is not determinative; the question remains whether the directive constituted a show of authority with which a reasonable person would feel obliged to comply. Popple v. State, 626 So.2d 185, 188 (Fla.1993). Likewise, in Dees v. State, 564 So.2d 1166, 1168 (Fla. 1st DCA 1990), we said

Deputy Salter’s directions to [defendant] Dees to exit the vehicle and to remove her hand from her pocket constituted a show of authority that restrained Dees’ freedom of movement, because a reasonable person would conclude that she was required to comply with the officer’s directives. Merely stating that the officer “asked” Dees to get out of the van and “asked” her to take her hand from her pocket, does not change the fact that these statements were directives from a law enforcement officer, rather than simple requests that Dees was free to disregard.

Because appellant was illegally seized for Fourth Amendment purposes when he was directed to exit the vehicle and place his hands on the roof, the consent to search his person given while appellant was standing with his hands on the roof of the car was involuntary. Therefore, the marijuana found as a result of that search should have been suppressed, and it was error for the trial court to deny appellant’s motion. Because it is clear that the trial court’s ruling on the motion was disposi-tive, see, e.g., Brown v. State, 376 So.2d 382, 384 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971); Fernandez v. State, 917 So.2d 1022, 1024 (Fla. 1st DCA 2006), we reverse appellant’s conviction and remand with directions that the trial court enter an order discharging appellant.

REVERSED and REMANDED, with directions.

BENTON and VAN NORTWICK, JJ., concur.


text:
    Robert Charles QUINNELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5474.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.
    Rehearing Denied Jan. 23, 2007.
    Robert Charles Quinnell, pro se, Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is dismissed for lack of jurisdiction. This dismissal is without prejudice to appellant’s right to file a petition for belated appeal. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


author: POLEN, J.

text:
    Jason ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4585.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 9, 2007.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Jason Anderson, timely appeals convictions of robbery with a deadly weapon and attempted robbery with a deadly weapon. We affirm the former conviction and reverse and remand for new trial as to the latter.

The facts material to this appeal are as follows. Benjamin Dominicis was working behind the counter at a Papa John’s pizza restaurant in Hollywood when, at approximately 2:40 p.m., he suddenly noticed someone standing next to him. The man was holding a screwdriver in his hand and asked Dominicis, “Can you do me a favor and open the cash register?” Dominicis said he could not and was able to escape to the office in the back of the restaurant and call 911. Ashley Melroy, another Papa John’s employee, witnessed what transpired between Dominicis and his assailant. However, Melroy could not see the man’s face because he had a shirt over his head and left immediately upon seeing Melroy retrieve her cellular phone.

That same day, Julio Davalos was working as a cashier at a Shell gas station in Hollywood. At about 3:00 p.m., while Da-valos was attending to customers, a man with a screwdriver in his hand approached Davalos from the side and tried to push him away from the cash register. When Davalos did not move, the man demanded that Davalos open the cash register. Da-valos complied and the man took the money and left the store. Davalos saw the man’s face as he left.

At that time, Sveen Zamalloa was arriving at work to relieve Davalos. As Zamal-loa was parking his car, he saw someone leaving the gas station store. The person attracted Zamalloa’s attention because he had something resembling a bandage on his hand and hurriedly left the store. The person came close, within four steps, of Zamalloa’s car, enabling Zamalloa to look at him for roughly five seconds.

At 3:30 p.m., police officers captured a man, later identified as Anderson, believing him to be the perpetrator of the above robberies. The officers continued detaining Anderson at the location where he was caught, while other officers separately brought Dominicis, Melroy, Davalos, and Zamalloa to the site. All four witnesses positively identified Anderson as the perpetrator of either the Shell gas station or Papa John’s robberies.

On appeal, Anderson argues that the trial court committed reversible error in permitting the prosecution to introduce the show-up identifications. “The decision to admit a pre-trial identification is within the sound discretion of the trial court and the decision should be overturned only upon a showing of abuse of discretion.” Walker, 776 So.2d at 945. “Show-up” procedures always carry some degree of suggestiveness because the witness is presented with only one suspect for identification. Perez v. State, 648 So.2d 715, 719 (Fla.1995); see also Macias v. State, 673 So.2d 176, 181 (Fla. 4th DCA 1996). A show-up identification is not valid if there is a substantial likelihood of irreparable misidentification under the totality of the circumstances. See Blanco v. State, 452 So.2d 520, 524 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953. The following factors should be considered in making this determination:

(a) the witness’ opportunity to view the suspect at the time of the crime; (b) the witness’ degree of attention; (c) the accuracy of the witness’ prior description of the suspect; (d) the level of certainty demonstrated by the witness at the confrontation; and (e) the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We find that the circumstances surrounding the show-up identifications provided by Dominicis and Melroy gave rise to a substantial likelihood of irreparable misidentification. Both were brought to the show-up within approximately a half-hour of the attempted robbery of Papa John’s, and both testified that they were certain the man in the show-up was the same man who attempted to rob the restaurant. However, Dominicis testified that before arriving at the show-up, the police told him that they were detaining someone who had a screwdriver and was wearing clothing fitting the description given by Dominicis. The first district condemned similar police conduct in Smith v. State, 362 So.2d 417, 419 (Fla. 1st DCA 1978) (reversing where, prior to witness identification of defendant via photo array, police officers told witness that they had recently taken into custody a suspect who fit the description witness had given them). We reiterate this admonishment and exhort law enforcement personnel to always avoid these types of suggestive pre-identi-fication communications.

We also find that Melroy’s show-up identification did not carry with it adequate indicia of reliability to merit admission into evidence, as Melroy was unable to observe the assailant’s face during the attempted robbery of Papa John’s. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (“[R]eliability is the linchpin in determining the admissibility of identification testimony.”). However, we conclude that Za-malloa’s and Davalos’ identifications were sufficiently reliable as both men clearly saw the person who robbed the Shell gas station and both positively identified that person as Anderson during the show-up procedure.

Based on the foregoing, we conclude that of the four show-up identifications at issue, only Melroy’s and Dominicis’ were so unreliable that their admission violated Anderson’s due process rights. Since these identifications pertained only to the charge of attempted robbery with a deadly weapon of Papa John’s, we find no reason to reverse Anderson’s conviction for robbery with a deadly weapon of the Shell gas station and therefore affirm that conviction. However, Melroy’s and Domini-cis’ show-up identifications were crucial to the State’s case against Anderson for the attempted robbery of the Papa John’s because there were no other out-of-court identifications, or for that matter in-court identifications, linking Anderson to that crime. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (“Under the harmless error analysis, if there is a reasonable possibility that an error affected the verdict, then such error is harmful.”). As such, we reverse Anderson’s conviction for the attempted robbery of Papa John’s and remand for new trial on that charge only. See Rohan v. State, 696 So.2d 901, 904 (Fla. 4th DCA 1997) (reversing convictions for three of five joined offenses).

We also note a possibly fatal variance contained in the information. The State mistakenly identified Jose Gutierrez rather than the Papa John’s restaurant, of which Gutierrez was the manager, as the victim in Count III, i.e., the attempted robbery of Papa John’s. Because we reverse Anderson’s conviction as to Count III due to an improper show-up procedure, we find that the alleged discrepancy as regards the information is not dispositive in this case. However, we suggest that the State correct the information to accurately identify Papa John’s as the victim upon retrial.

Affirmed in part; Reversed in part; Remanded.

KLEIN and MAY, JJ., concur.

      . Anderson’s pretrial identification is considered a "show-up” procedure, which occurs when the police take a witness shortly after the commission of an observed crime to where they are detaining a suspect, thereby giving the witness an opportunity to identify the suspect as the perpetrator of the crime. Walker v. State, 776 So.2d 943, 945 (Fla. 4th DCA 2000) (citation omitted).

      . Zamalloa testified that before being taken to identify Anderson, an officer told him that the police "need[ed] him to recognize someone,” and that on the way to the show-up, he overheard someone on the police radio stating, "we got him.” We find that these communications, individually or in aggregate, do not reach the level of impermissible suggestiveness condemned in Smith, 362 So.2d at 419, and which we now find improperly occurred as regards Dominicis.