author: LEWIS, J.

text:
    STATE of Florida, Appellant, v. Eric M. YOUNG, Appellee.
    No. 1D06-5798.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.

      Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellant.
    Curtis S. Fallgatter of Fallgatter Far-mand & Catlin, P.A., Jacksonville, for Ap-pellee.
   ON MOTION FOR REHEARING AND CERTIFICATION

LEWIS, J.

We deny the State’s motion for rehearing and certification. On our own motion, however, we withdraw our previous opinion and substitute the following.

The State of Florida seeks review of an order granting Erie Young’s motion to suppress evidence gathered during a war-rantless search of his office and workplace computer, as well as statements obtained from him in a subsequent interrogation. Although Young did not personally consent to the search, the State contends that the search was reasonable under one or all of the following theories: (1) Young had no legitimate expectation of privacy in the office or computer, (2) church officials who consented to the search had authority to do so, and (3) the officers who conducted the search reasonably relied on the church officials’ apparent authority to consent. The State also contends that Young’s statements were not a product of the search and, therefore, should not have been suppressed in any event. We reject all of these contentions and affirm the order.

At the time of the search, Young was the pastor of Ft. Caroline United Methodist Church (“the church”), a local church under the supervision of the larger United Methodist Church (“the Church”). In the proceedings below, Richard Neal, a district superintendent of the Church, testified regarding the Church’s structure, as it related to Young’s employment. According to Neal’s testimony, the Church is divided into geographical sections known as conferences, and a bishop presides over each conference. Neal explained that bishops appoint pastors after consulting with district superintendents, who supervise the pastors and local churches within their districts. Neal further testified that the Church is governed in accordance with its Book of Discipline and that all pastors agree to be bound by this book when they are ordained.

Young’s church was relatively small, with only three full-time staff members: the pastor, a custodian, and a person who served as both the church administrator and the pastor’s secretary. Additionally, there was a body within the church known as the staff parish. The church administrator described the staff parish as “the human resources of the church,” or the personnel. Although the record is unclear as to the role or authority of the staff parish, the chairperson of staff parish relations testified via deposition that he was not Young’s boss or supervisor.

The church provided Young with a desktop computer and a private office. Although the computer was provided to Young for use in connection with his duties at the church, there was no official policy regarding the use of the computer or others’ access to it. Young’s computer was not networked to any other computer, and it was kept in his private office. This office had a special lock that could not be opened with the Church’s master key. Three keys to Young’s office existed. Young kept two of the keys, and the church administrator kept the third key, which she stored in a locked credenza drawer in her office.

According to Young’s testimony, a previous pastor had requested the special lock for the office door due to concerns about after-hours intruders. The church administrator testified that she regularly opened the door to Young’s office for the custodian and visiting pastors, who occasionally used the office to prepare sermons. However, the church administrator acknowledged that no one was permitted to enter the office without Young’s permission. Young testified to this fact himself and added that when he was absent from the office, even the church administrator’s access was limited to reasonable business purposes, such as “delivering] paperwork for [him] to sign.” Young further testified that the church administrator was not permitted to log on to his computer when he was not physically present.

The events leading to the search of Young’s office and computer began when the church administrator received a call from the church’s Internet service provider. A representative from that company informed the church administrator that spam had been linked to the church’s Internet protocol address. In response to this call, the church administrator ran a “spybot” program on the church’s computers. She testified that when she ran the program on Young’s computer, she saw “some very questionable [w]eb site addresses.” The church administrator then contacted a member of the staff parish and an information technology (IT) person to set up a time to have the computer examined.

Later, the chairperson of staff parish relations, Kenneth Moreland, contacted Neal to inform him of the situation. After discussing the matter with the bishop and getting approval for the decision, Neal instructed Moreland to contact law enforcement officials and allow them to see the computer. The next morning Neal instructed Young not to return to the church until the two could meet and discuss the situation. When officers arrived at the church, Moreland unlocked Young’s office and signed “consent to search” forms for the office and computer. Young arrived at the church during the morning when the officers were there. Moreland and an officer instructed Young to leave the property immediately, and he complied.

The two officers who were involved in obtaining consent to search the office and computer testified at the suppression hearing. Both testified that at the time of the search, they understood Moreland to be a “representative of the church” whose authority to consent was based on instructions from a supervisor at the church. Neither of these officers spoke with More-land’s supervisor or asked Moreland further questions about his authority before the search began. One officer testified that she had spoken directly with Neal after she was already inside Young’s office. At the time, she knew Neal had never used Young’s computer, did not work in Young’s office, and did not keep property there. Neal’s testimony at the hearing revealed the same information. Similarly, More-land testified that he did not work in Young’s office and did not keep belongings there. However, Neal testified that he had authority to consent to the search and to instruct Young to stay away from the church under the Book of Discipline, by which Young had agreed to be bound when he was ordained.

After searching the office and computer, officers went to another location where Young was meeting with Neal. At that time, an officer advised Young of his Miranda rights, and Young indicated he was willing to talk. During the interview, the officer showed Young a printout from his computer, which contained a list of Web sites Young had bookmarked. The transcript of the interview indicates that the officer was looking at the printout while questioning Young. During the course of the interview, Young made statements relevant to whether he had a subjective expectation of privacy in his office computer. In particular, when the officer asked, “You have no right to privacy on that computer?,” Young responded, “I suppose not ... I hadn’t really thought about it.” The officer then stated, “It’s like me, ... my laptop in my truck, if my boss says hand it over, he can look at anything that’s on there because it’s not mine.” Young replied, “I suppose technically you’re right.” He also made incriminating statements related to child pornography and signed a form giving the officers consent to search a “memory stick” found in his office. Young testified that during the interview, he understood that the officers had been in his office. Statements made by the officer during the interview are consistent with this testimony.

After two hearings, the trial court granted the motion to suppress, finding that, although Neal had authority to consent to the search under the Book of Discipline, he did not have authority to consent under the constitutions of the United States and Florida. The court concluded that the search and seizure was unlawful and that Young’s statements were a product of the unlawful search and seizure. Thus, the trial court held that the items seized in the search and the statements taken in the interview could not be used as evidence at trial.

We consider the Fourth Amendment issues presented in this case under the requirements of the Federal Constitution, as interpreted by the United States Supreme Court. See Art. I, § 12, Fla. Const.; State v. Butler, 655 So.2d 1123, 1125 (Fla.1995). We review the trial court’s factual findings to determine whether they are supported by competent substantial evidence, but its application of law to facts is reviewed de novo. See Williams v. State, 721 So.2d 1192, 1193 (Fla. 1st DCA 1998). Recognizing that a trial court’s ruling on a motion to suppress is “clothed with the presumption of correctness,” we “interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to the trial court’s ruling.” McNamara v. State, 357 So.2d 410, 412 (Fla.1978).

To invoke the protection of the Fourth Amendment, a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. Smith, 442 U.S. at 740, 99 S.Ct. 2577. The reasonableness of an expectation of privacy in a particular place or item depends on context. O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Specifically, the reasonableness of an employee’s expectation of privacy in his or her office or the items contained therein depends on the “operational realities” of the workplace, id. at 717, 107 S.Ct. 1492, and not on legal possession or ownership. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The likelihood that a person has an objectively reasonable expectation of privacy in an office setting is increased where the area or item searched is “reserved for [the defendant’s] exclusive personal use.” See id. at 368, 88 S.Ct. 2120. Other factors that have been considered in determining the legitimacy of an expectation of privacy in an item seized from an office include the employee’s relationship to the item, whether the item was in the employee’s immediate control when it was seized, and whether the employee took actions to maintain a sense of privacy in the item. United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir.1998). Many times, an employee may have a legitimate expectation of privacy in his or her personal office and in personal items stored in a desk or file cabinet. See O’Connor, 480 U.S. at 716-18, 107 S.Ct. 1492.

Evaluation of an expectation of privacy in a workplace computer involves unique considerations, but as with any other item in the workplace, the evaluation should focus on the operational realities of the workplace. When a computer is involved, relevant factors include whether the office has a policy regarding the employer’s ability to inspect the computer, whether the computer is networked to other computers, and whether the employer (or a department within the agency) regularly monitors computer use. For example, in United States v. Angevine, 281 F.3d 1130 (10th Cir.2002), the court held that a university professor had no legitimate expectation of privacy in his office computer, partly because the university had an extensive policy regarding computer use and provided explicit warnings that the computer would be inspected by university officials. Similarly, in Muick v. Glenayre Electronics, 280 F.3d 741, 742 (7th Cir.2002), the court observed that an employee had “no right of privacy” in the laptop computer his employer had “lent him for use in the workplace” because the employer had announced that it could inspect the laptop. We agree with these courts that where an employer has a clear policy allowing others to monitor a workplace computer, an employee who uses the computer has no reasonable expectation of privacy in it. In the absence of such a policy, the legitimacy of an expectation of privacy depends on the other circumstances of the workplace.

If these circumstances indicate that the employee has a legitimate expectation of privacy in the place searched or items seized, and the employee has invoked the protection of the Fourth Amendment, the State must prove that the search and seizure was reasonable in order to use the evidence secured in the search and seizure at trial. See State v. Setzler, 667 So.2d 343, 344 (Fla. 1st DCA 1995). A search and seizure is reasonable if it is conducted pursuant to a valid warrant or with valid consent. State v. Purifoy, 740 So.2d 29, 29 (Fla. 1st DCA 1999). Law enforcement officers may obtain valid consent from the individual whose property is searched, someone who has common authority over the premises, or someone who reasonably appears to have common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (citations omitted).

“Common authority” is derived from “mutual use of the property by persons generally having joint access or control for most purposes.” Rodriguez, 497 U.S. at 177, 110 S.Ct. 2793. The legal justification behind the doctrine of common authority is that when two people have mutual use of property, each assumes the risk that the other will permit the area to be searched. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Even when a third party has the right to enter the property and inspect it for his or her own purposes, that person does not have constitutional authority to invite law enforcement officers to search the property unless he or she has common authority over the property. See Blanco v. State, 438 So.2d 404, 405 (Fla. 4th DCA 1983) (noting that a landlord’s personal right to enter an apartment was distinct from a right to invite police in to search the apartment).

In United States v. Ziegler, 474 F.3d 1184, 1191 (9th Cir.2007), the court considered the consent issue in the context of a workplace computer and reasoned that “the computer is the type of workplace property that remains within the control of the employer ‘even if the employee has placed personal items in [it].’” Standing alone, this statement suggests a blanket rule that employers always retain common authority over workplace computers. However, the Ziegler court’s reasoning was fact-specific. See id. at 1192-93. Notably, in Ziegler, the company had an IT department with complete administrative access to all computers, the company had installed a firewall to monitor Internet traffic, and an employment manual informed employees of such monitoring efforts. Id. at 1192-93. Thus, like the standing inquiry, the question of whether an employer has retained control over a workplace computer sufficient to maintain common authority over the device depends on the operational realities of the workplace.

In some situations, a person who purports to consent to a search may not have actual authority to do so. Law enforcement officers may rely on that person’s apparent authority to give consent, but only if such reliance is reasonable. See Rodriguez, 497 U.S. at 188-89, 110 S.Ct. 2793. To determine whether an officer’s reliance was reasonable, courts presume that the officer was familiar with the applicable law. See Morse v. State, 604 So.2d 496, 503-04 (Fla. 1st DCA 1992). Then, the proper inquiry is whether a reasonable person familiar with the applicable law would have believed the third party had common authority over the premises or item searched. See Morse, 604 So.2d at 503-04. If the basis for the asserted authority is unclear, the officer must conduct further inquiry before relying on the third party’s representations. Id.

If the State fails to prove a search and seizure was reasonable under constitutional standards, any evidence obtained either directly or indirectly therefrom must be excluded from the defendant’s criminal trial. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Evidence that is not obtained during a search, but which is obtained as a result of the unlawful search, must be suppressed under the “fruit of the poisonous tree” doctrine. See id.; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Evidence is not per se inadmissible “simply because it would not have come to light but for the illegal actions of the police,” but the evidence must be excluded from trial if it “has been come at by exploitation of [the] illegality” and was not obtained ‘“by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (citation omitted). Of course, it is the State’s burden to show that the evidence sought to be suppressed was procured by appropriate means. To carry this burden, the State must show “an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action” by clear and convincing evidence. Norman v. State, 379 So.2d 643, 647 (Fla.1980). When the defendant seeks to suppress statements, the mere fact that the defendant’s statements were voluntary is insufficient, in itself, to meet this burden. See Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (stating that where a Fourth Amendment violation taints a confession, the State must meet the threshold requirement of showing that the confession was voluntary and then “show a sufficient break in events to undermine the inference that the confession was caused by” the violation).

Under the facts of the instant case, Young had a legitimate expectation of privacy in his office and his workplace computer. Thus, law enforcement could not properly access the contents of the office or the computer without obtaining a search warrant or valid consent. Because the officers did not have valid consent, the trial court properly suppressed the evidence obtained from the search.

The State contends, based primarily on Young’s statements during the interview, that Young had no subjective expectation of privacy in the office or the computer. However, even considering those equivocal statements, we conclude that Young had a subjective expectation of privacy in the office and computer. This conclusion is based on a review of the totality of the circumstances. Young kept his office locked when he was away, thus taking specific measures to ensure his privacy in the office. When others used the office, the use was for limited purposes. The testimony at the suppression hearing indicated that Young expected no one to peruse his personal belongings in the office or on the computer.

Next, the State contends that Young’s expectation of privacy in his office is not an expectation that society is prepared to accept as reasonable. We disagree. The Supreme Court has recognized that there are circumstances under which an employee may have a legitimate expectation of privacy in the workplace and the items contained therein. See O’Connor, 480 U.S. at 716-18, 107 S.Ct. 1492 (finding a legitimate expectation of privacy in a government employee’s office, desk, and file cabinets). The facts of the instant case indicate that the church had endowed Young with an expectation of privacy far beyond that which an average employee enjoys. Not only did the church install a special lock on the door, but it supplied only three keys to the door, two of which were in Young’s sole possession. Additionally, Young had a recognized practice of allowing visitors into his office only with his permission or for limited purposes related to church business. Although Young’s expectation of privacy would be more compelling if he had never allowed another person to use the office, such a condition would be unrealistic in any office setting. Young was required to have an objectively reasonable expectation of privacy, not a compelling expectation. It is difficult to imagine circumstances within a realistic business setting which would give rise to a more legitimate expectation of privacy.

Young also had an objectively reasonable expectation of privacy in his office computer. Although the church owned the computer, Young was the sole regular user. Although the church administrator performed maintenance on the computer, there was no evidence that she or anyone other than Young stored personal files on the computer or used it for any purpose other than maintenance. Unlike in the federal cases finding no expectation of privacy in a workplace computer, the church in the instant case had no written policy or disclaimer regarding the use of the computer. See Angevine, 281 F.3d at 1132-33 (describing a university’s extensive policy regarding computer use and monitoring); Muick, 280 F.3d at 742 (noting that an employer’s announcement that it could inspect laptop computers “destroyed any reasonable expectation of privacy” the defendant may have had). Specifically, there was no policy informing Young that others at the church could enter his office and view the contents of his computer. The fact that Young’s computer was not networked to any other computers further heightens the reasonableness of his expectation of privacy in its files. The only way to access the computer to view its contents was to enter through the locked office door. It is clear under these circumstances that the church trusted Young to use the computer appropriately and that it gave no indication that the computer would be searched by anyone at the church. The fact that Young violated this trust does not detract from a proper analysis of whether he had a legitimate reason to expect that others would not enter his office and inspect the computer.

Testimony at the suppression hearing revealed that the district superintendent had authority to enter the office and inspect the computer under general provisions in the Book of Discipline, which gives district superintendents the responsibility to oversee pastors and local churches. While we do not doubt that the district superintendent had such authority, we observe that this general authority to supervise a pastor is distinguishable from an explicit policy indicating that a computer will be inspected periodically. Thus, based on the other facts of this case, Young’s expectation of privacy was legitimate, even in the face of a church policy allowing the district superintendent to supervise him. All employees have supervisors, but many employees may still have a legitimate expectation that others will not examine their personal files, even if these files are brought into the workplace.

Although the district superintendent had personal authority to enter Young’s office, and to authorize others to do so, this authority did not displace the law enforcement officers’ obligation to respect Young’s independent constitutional rights and it did not rise to the level of “common authority” required for valid third party consent. Neither Moreland nor Neal had ever used Young’s workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.

The State contends that even if there was no actual authority for the church officials to consent, the officers reasonably relied on the officials’ representations of authority. However, the officers’ actions do not support a finding of apparent authority. By the officers’ own admissions, they knew nothing of More-land other than the fact that he was a “representative of the church” who had been told by a supervisor to consent to the search. Although the officers were presumably familiar with the law governing third party consent, they made no effort to ascertain whether the consenting officials had any regular access to or control over the office and the computer before commencing the search. Despite the clear indications of Young’s autonomy at the church and the officers’ lack of knowledge regarding the specific relationship between the supervisor and Young, the officers assumed that the supervisor had the authority to consent. Their actions were not reasonable under constitutional standards. See Rodriguez, 497 U.S. at 188-89, 110 S.Ct. 2793; Morse, 604 So.2d at 503-04 (noting that “[a]n officer cannot always assume an invitation to enter a room is necessarily authorized by the rightful occupant”).

For the first time on appeal, the State argued that the trial court had no choice but to accept that the search was proper to avoid a violation of the ecclesiastical abstention doctrine. Because the ecclesiastical abstention doctrine is an issue of subject-matter jurisdiction, Malichi v. Archdiocese of Miami, 945 So.2d 526 (Fla. 1st DCA 2006), we feel compelled to address the State’s concerns. Under the ecclesiastical abstention doctrine, civil courts are prohibited from interfering with internal church disputes in order to avoid excessive government entanglement with religion, in accordance with the First Amendment. See id. When matters of church discipline or ecclesiastical government arise between a church and its parishioners, secular courts must accept the decision made by the highest ecclesiastical authority. Id. (quoting Watson v. Jones, 80 U.S.(13 Wall.) 679, 733, 20 L.Ed. 666 (1871)).

In Malicki v. Doe, 814 So.2d 347, 356-57 (Fla.2002), the Florida Supreme Court recognized that the doctrine applies to intra-church disputes, not those between a church and a third party. The Malicki court explained that the purpose behind the prohibition against resolving disputes between churches and their parishioners is to avoid having the state “intervene on behalf of groups espousing particular doctrinal beliefs.” Id. (quoting Gen. Council on Fin. & Admin. of the United Methodist Church v. Cal. Superior Court, 439 U.S. 1355, 1372-73, 99 S.Ct. 35, 58 L.Ed.2d 63 (Rehnquist, Circuit Justice 1978)). Ultimately, the court held that there was no First Amendment bar to a suit initiated by parishioners against church officials under a theory of negligent hiring and retention for two reasons: the parishioners were not seeking to regulate conduct rooted in religious belief and the lawsuit was based on a neutral application of a generally applicable principle of law. Id. at 360-61.

In the instant case, the State’s rebanee on the ecclesiastical abstention doctrine is misplaced primarily because the church is not a party in this case and there has been no attempt to regulate church conduct through the judicial system. This case did not require the trial court to determine whether the church officials exercised proper authority under church doctrine or otherwise interfere with the manner in which the church governs itself. Any interference in church governance posed by the instant case is far less significant than the interference Florida churches must tolerate under Malicki. Because churches can be sued for negligent hiring and retention, Malicki, 814 So.2d at 360-61, churches have a legal obligation to exercise due care in selecting and supervising pastors. In contrast, the instant case does not require the church to conform any policies or conduct to a legal standard. The instant case merely requires law enforcement officers to consider the constitutional restrictions on their own behavior.

Notably, the trial court accepted Neal’s testimony that the Book of Discipline gave him the authority to allow others into the pastor’s office. In deeming the officers’ acts unconstitutional, the court did not interfere with the church’s authority or attempt to penalize any person for exercising it. Instead, the court took the limited and appropriate measure of excluding the evidence obtained from the search from use in a court of law. The church had authority to implement its doctrine, but this authority did not extend beyond the realm of rehgion and did not remove from the court the prerogative of enforcing the rules of evidence and ensuring that government agents comply with the constitutions of the United States and Florida.

Finally, having established that law enforcement officers acted improperly in conducting the search of the office and computer, we turn to the facts surrounding the subsequent interrogation. The State contends that the statements were removed from the original taint because the church had already provided police with a CD containing “questionable images” prior to the search. We disagree. During the interview, the officers showed Young a printout of Web sites he had bookmarked and indicated that they had seized a “memory stick” from his office. Young testified that he was aware the officers had been in his office at the time of the interrogation. The State contends that the printout was from the CD the church had prepared. However, during the interrogation, the officers did not make this distinction to Young, although they clearly communicated to him that they had been in his office. Under these circumstances, we cannot say that Young’s willingness to give incriminating statements was unaffected by the illegal search. The State has not pointed to any event or circumstance that broke the chain of illegality. Because the State failed to carry its burden, the trial court properly considered the statements “fruit of the poisonous tree.” Like the items seized from Young’s office and computer during the search, the interview statements were properly suppressed. Accordingly, the trial court’s order is AFFIRMED.

No further motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

VAN NORTWICK and THOMAS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas DEMOGENES and Susan Demogenes, Appellants, v. ANDALUSIA HOMES, INC., Appellee.
    No. 2D08-10.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2008.
    Robert T. Maher, Esquire, Fort Myers, for Appellants.
    Robert D. Young, Esquire, Fort Myers, for Appellee.
   PER CURIAM.

This is an appeal from an order compelling arbitration. The appellee has conceded error and acknowledged it waived arbitration by actively participating in the litigation. Accordingly, we reverse the order compelling arbitration and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND, KÍCLLY, and WALLACE, JJ., Concur.


author: KLEIN, J. FARMER, J.,

text:
    Kevin KOSITSKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-251.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was charged with DUI and, because of statements he made after he was arrested, he was also charged with corruption of a public official by threat. He appeals his corruption conviction, arguing that the trial court should have granted his motion for judgment of acquittal, because, although there was a threat, the element of intent to influence performance of an act by a public servant was not established. We agree and reverse.

Corruption by threat against a public servant is defined in section 838.021, Florida Statutes (2006), as follows:

Corruption by threat against public servant
(1) Whoever unlawfully harms or threatens unlawful harm to any public servant, to his or her immediate family, or to any other person with whose welfare the public servant is interested, with the intent or purpose:
(a) To influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.

Before we set out the facts, which include threats about slitting the officer’s throat and kicking the officer’s ass, it is significant to note that the information charged a violation of the statute only by “threaten to slit his throat.”

The officer who arrested appellant testified that he stopped appellant after watching him make a U-turn, run a red light, and speed. Appellant smelled of alcohol and admitted he was drunk. After appellant failed the roadside sobriety test, the officer arrested him for DUI. The corruption charge is based on statements made by appellant after appellant had been handcuffed, while he was being “loud and obnoxious.” Two officers, Randazzo and Cook, heard the threats. According to Officer Randazzo, appellant told him to remove his handcuffs, “or he’d kick his ass.” At another point appellant said he “would slit his throat.” Officer Upchurch testified that he heard appellant threaten to kick Randazzo’s ass “if we took him out of the cuffs.” He heard appellant repeatedly say, “You don’t know who I am. Take these cuffs off me. I’ll kick your ass.” At another point, appellant told Randazzo, in the presence of Officer Up-church, CSA Gray and Deputy Whaley, that “he would slit his throat if the cuffs were removed.” Officer Randazzo was not afraid when appellant said this because appellant was in handcuffs at the time. He took it with a “grain of [salt].”

We agree with appellant that, because the information referred only to the threat to slit the officer’s throat, we should not consider the threat to kick the officer’s ass in determining if the state proved the corruption charge.

Considering that it was undisputed that the appellant was in handcuffs, we agree with appellant that the trial court should have granted his motion for judgment of acquittal. The threat to slit the officer’s throat “if the cuffs were removed” could not have had the intent of influencing the performance of an act. If anything, it would have the opposite effect. The result would be different if appellant had threatened to slit the officer’s throat if the handcuffs were not removed. Reversed.

GROSS, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

The majority holds that there is no evidence that the threats were made to influence the performance of an act by the police officers. Yet in the second paragraph they acknowledge that he prefaced his threats with words to the effect “if [the officers] do not remove the handcuffs.” So it is manifest that his announced purpose was to get the police to take the handcuffs off of him. That sounds to me very much like a threat to “influence the performance of an act,” namely whether to keep him cuffed. I therefore cannot say that there is no evidence of using a threat to influence official conduct.

To be sure, this prosecution strikes me as ill-advised and excessive. Many drunk people become “loud and obnoxious” — especially after being arrested. Alcohol erases inhibitions and emboldens the timid. I don’t wonder that more people aren’t similarly charged and convicted.

Yet I am compelled to affirm.


author: WARNER, J.

text:
    Winston WHITTINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3975.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his convictions and sentences for various sexual crimes against a child, including sexual battery, lewd or lascivious battery, lewd or lascivious molestation, false imprisonment, and simple battery. The charges arose from a multi-year course of abuse of a child victim by the appellant. He contends that the court submitted to the jury several counts which included multiple, distinct acts such that his conviction could have been based upon a non-unanimous jury verdict on those counts. He raises this issue as a fundamental error, as he did not object in the proceedings in the trial court. We affirm, as we hold that the error is not fundamental, and any objection should have been raised at trial.

Appellant sexually abused the child victim, the daughter of his girlfriend, over a period of years. When the state finally charged him with these crimes, it grouped the various types of abuse into single counts. On some counts, the victim’s testimony showed multiple, indistinct acts within a certain time range. On one count of abuse by way of vaginal intercourse, the victim was able to remember several distinct acts of intercourse at different places and different times. The defense did not object to the charging of these incidents in one count or to the submission to the jury of this one count. The jury convicted the defendant as charged.

On appeal, appellant argues that because several counts submitted to the jury were each supported by more than one criminal episode, the jury verdict could be non-unanimous, resulting in a fundamental error in violation of this court’s holding in Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007). We conclude that Perley is distinguishable. We hold that the issue may not be raised for the first time on appeal. We considered the issue of how charging-patterns in child sexual abuse cases may-result in non-unanimous verdicts in State v. Dell’Orfano, 651 So.2d 1213 (Fla. 4th DCA 1995). There, the state had charged a single criminal act in each count, but the act had occurred multiple times within the time period alleged. The trial court dismissed the information, because it concluded that charging multiple acts within one count would prevent a jury from rendering a unanimous verdict of guilt. One juror could find that the defendant committed one of the acts but not the other, while another juror may not agree and find that the defendant committed another of the alleged charges. The state argued that, instead, each count charged a single criminal act which was committed multiple times. To find a defendant guilty, each juror must find that the defendant committed the act on at least one occurrence.

We noted that most courts which had considered the issue had permitted the prosecutor discretion in the charging pattern in child sexual abuse cases. In particular, we pointed to a Washington Supreme Court decision which explained:

Multiple instances of criminal conduct with the same child victim is a frequent, if not the usual, pattern. Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion. Many factors are weighed in making that decision, including the victim’s ability to testify to specific times and places.... The criteria used to determine that only a single charge should be brought, may indicate that the election of one particular act for conviction is impractical.

Id. at 1215 (citation omitted) (quoting State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 178 (1984) (en banc)). Although acknowledging the majority view, we nevertheless held, ‘Where it is reasonable and possible to distinguish between specific incidents or occurrences, as it is in this case, then each should be contained in a separate count of the accusatory document.” Id. at 1216.

Applying the principle in State v. Generazio, 691 So.2d 609 (Fla. 4th DCA 1997), however, we held that the prosecutor did not abuse his discretion in charging one count for each type of sexual act, where the victim had been continually abused over an eight-month period and could not remember specific dates or narrow the time period. The victim could identify several different types of sexual abuse, and the prosecutor charged all incidents of each type of sexual abuse in one count. Specifically the information charged the defendant with a type of sexual abuse “on one or more occasions” within a particular time period. We held that this charging pattern was legally sufficient.

Similarly, the prosecutor in this case charged the defendant with a different type of sexual abuse in each separate count. Some counts charged that the act occurred within a specific time frame. Others charged the specific type of sexual abuse “on one or more occasions” within a specified time range. This is the same method of charging that we approved in Generazio when a victim cannot be more specific regarding dates or events. The appellant never moved to dismiss the information or requested a bill of particulars to narrow the time gap or challenged the method of charging in any respect.

Child sexual abuse cases pose unique problems for prosecution, as our supreme court has recognized. See Dell’Orfano v. State, 616 So.2d 33, 35 (Fla.1993). Because the state may charge a defendant in child sexual abuse eases in a manner not permitted in other types of criminal cases, expanding time periods for the commission of offenses and grouping types of offenses together, we hold that it is not fundamental error to submit such a charge to the jury. A defendant must object at trial to submission to the jury of an aggravated charge to preserve the objection. Otherwise, the prosecution may assume that by failing to challenge the charging pattern, the defendant has acquiesced in the state’s determination to charge all of the same type of acts within a single count. Indeed, by doing so the prosecution actually lessens the potential penalty to the defendant. Where each charge is discrete and charged as such, the defendant is subject to substantially greater penalties and potential consecutive sentencing on each charge.

We distinguish Perley v. State, 947 So.2d 672 (Fla. 4th DCA 2007). There the defendant was charged with a single count of escape, but the evidence showed two distinct incidents which could have been considered escape. In closing argument, the prosecutor told the jury that it could convict of either incident of escape. On appeal, we held that the prosecutor’s affirmative invitation to the jury to find guilt by essentially a non-unanimous verdict constituted fundamental error. Here, in contrast, the prosecutor made no such affirmative invitation. More importantly, however, Perley was not a child sexual abuse case, which the courts have consistently treated differently from other types of prosecution. Perley does not require reversal on fundamental error grounds in this case.

In a second point, appellant argues that his convictions for committing lewd or lascivious molestation and lewd or lascivious battery violate double jeopardy, because they occurred during the same episode. We have examined the charging document and the evidence presented, however, and conclude that the two charges did not arise out of the same incident. We therefore affirm on this issue as well.

Affirmed.

FARMER and GROSS, JJ., concur.


author: KLEIN, J. HAZOURI, J.,

text:
    Jason BIBI, Appellant, v. ROYAL HIDDEN COVE AT the POLO CLUB HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Albert Eyal, Joy Meyers, Marise Rudnick, Jack Feldman, and Jeannie Fibus, Appellees.
    No. 4D07-291.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      Ricardo A. Reyes of Tobin & Reyes, P.A., Boca Raton, and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A., Ft. Lauderdale, for appellant.
    Kara Berard Rockenbach of Gaunt, Pratt, Radford, Methe & Rockenbach, P.A., West Palm Beach, for appellees.
   KLEIN, J.

Appellant sued his homeowner’s association because of the failure of the association to approve his plans to build a home on his lot. After mediation the parties entered into a settlement agreement; however, that agreement resulted in a further dispute which is the subject of this appeal. We affirm.

The problem arose in the first place because the homeowner had to have approval from two different associations, his homeowner association, which is a party, and a master association, which is not a party. After becoming frustrated by his inability to start construction, either because of his delay in starting construction after approval, or failure to receive timely approvals, he filed this suit against his association seeking declaratory relief as well as damages and other remedies.

At the request of his association, the homeowner agreed to participate in mediation, on the condition that the master association, which was not a party, would also participate. The master association attended part, but not all, of the mediation, during which the homeowner and his association entered into a settlement agreement that allowed the homeowner to continue his lawsuit if his plans were not approved by August 19, 2005. As it turned out, his association did approve his plans by that deadline; however, the master association did not approve the plans until several months later.

The issue before the trial court centered on the meaning of paragraph 7 as applied to the approval dates. The agreement was as follows:

2. Defendant Association agrees to call an emergency meeting of the Board of Director today, August 16, 2005, to approve Plaintiffs landscaping plan as presented by Plaintiff at mediation and by Association’s property manager. The landscape plan is attached to this settlement agreement. Except for the landscaping plan, the Board has previously approved the balance of the construction plan on July 23, 2004.
3. If approved, the Association’s property manager, Ken Soler will deliver said plans and seek approval from the Master Association at the Polo Club by Friday August 19, 2005.
4. If the landscaping plans and construction plans are approved by the defendant Association and the Master Association, Plaintiff will have six months from August 19, 2005 to seek governmental approval and commence construction.
5. If Plaintiff fails to obtain approval and fails to commence construction within six months, except for future acts of God, approval is permanently and automatically revoked. In such an event, the defendant Association will not have any obligation to approve Plaintiffs’ plans again.
6. Upon receipt of confirmation from the Defendant Association and the Master Association that the landscaping plans and construction plans have been approved, and Plaintiff is approved by the Association to commence construction, the parties shall submit a stipulation to dismiss the lawsuit with prejudice with each party to bear their own attorneys fees and costs.
7. If both the defendant Association and the Master Association do not provide approvals as specified herein by August 19, 2005, either party may void this settlement agreement and proceed with the lawsuit.
8. Defendant Association would not be opposed to a reduction in square footage of the guest house. However Defendant Association must receive, review and approval all revisions to architectural building plans, which may be submitted simultaneously with request for governmental approval.

The homeowner was able to build his home, but he took the position that, because both approvals were not obtained by the August 19 deadline, he was not required to dismiss his lawsuit for damages. The trial court found the agreement unambiguous and that it permitted the homeowner to continue with his lawsuit only if, as the agreement provided: “both the ... Association and the Master Association failed to provide approval by August 19, 2005.” In other words, if only one association failed to provide approval then the homeowner lost his right to continue his suit.

The homeowner argues that the intent of the agreement as a whole was to require approvals of both associations by August 19, because obtaining the approval of only one would have been of no benefit to him. On the other hand, the association points out that the master association was not a party to the lawsuit and the association had no control over the master association.

The dissent would change paragraph 7 from “if both the defendant Association and the Master Association do not provide approvals” to “if either the defendant Association or the Master Association do not provide approvals.” A court, however, may not change the terms of a contract to achieve what it might think is a more appropriate result. McCutcheon v. Tracy, 928 So.2d 364 (Fla. 3d DCA 2006). Because the condition of both failing to approve did not occur, the trial court did not err in interpreting the agreement in favor of the association.

Affirmed.

DAMOORGIAN, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. I find that paragraph 7 of the mediation agreement in isolation and in conjunction with the overall intent of the mediation agreement to be unambiguous and provides that the appellant has the option to void the settlement agreement and proceed with the lawsuit on damages. The fact that the Master Association was not a part of the lawsuit is of little moment. Clearly the Homeowner’s Association could not bind the Master Association since the Master Association was not a signatory to the mediation agreement; however, it is clear to me that the appellant needed to have both the approval of the Homeowner’s Association and the Master Association in order to proceed with the building of his home.

Paragraph 3 of the mediation agreement clearly contemplates that the Homeowner’s Association will seek the approval of the Master Association by August 19, 2005. In paragraph 4 of the agreement, the appellant will then have six months from August 19, 2005, to seek governmental approval and commence the construction. The date of August 19, 2005, is the triggering time period for the appellant to be able to proceed. One has to wonder why any triggering date would be in the agreement if it did not contemplate approval by both the Homeowner’s Association and the Master Association. In paragraph 6 of the agreement, again there is a reference to obtaining both the Homeowner’s Association and the Master Association’s approval of landscaping and construction plans.

Finally, paragraph 7 standing alone conveys the clear statement that if both the Homeowner’s Association and the Master Association do not approve the plans by August 19, 2005, either party may void the settlement and proceed with a lawsuit. To read paragraph 7 to mean that the appellant could void this settlement and proceed with a lawsuit only if both the Homeowner’s Association and the Master Association do not provide approvals seems to me to turn this paragraph on its head and at best is a very strained interpretation.

The Homeowner’s Association approved the plans but the Master Association did not. So it was necessary to have approval from both associations by August 19, 2005, in order to proceed. August 19, 2005, would be the date from which the six month time period for commencing construction would begin to run. Failure to have the approval of both associations would be the only basis for which the appellant would be able to proceed with his lawsuit for damages.

Contrary to the assertion by the majority that the dissent seeks to rewrite the agreement, I am simply advocating a plain reading of paragraph 7. In order for the majority to come to its conclusion it must read paragraph 7 to provide “if only one of the associations provides approval” then the appellant may not proceed with a lawsuit. If the majority’s reading of the paragraph is correct, then the Homeowner’s Association could deny approval of the plans and the Master Association could approve them and the appellant still could not proceed with his damages claim. To read paragraph 7 in this manner would make the entire mediation with the Homeowner’s Association a futile exercise. I would therefore reverse and remand so that the appellant could proceed with his claim for damages.


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    Karen COGAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3879.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      John A. Unruh, P.A., Vero Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order denying a motion to withdraw her plea to possession of cocaine and drug paraphernalia charges. She argues that the trial court erred in denying the motion. We disagree and affirm, but remand the case to the trial court to correct a scrivener’s error on the scoresheet, which inaccurately reflects the maximum sentence allowable.

Affirmed.

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


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    Beverly N. YOUNG, individually and as Trustee of the Goldman Revocable Living Trust and Ephraim S. Young, Appellants, v. Nancy S. KURLANSIK, as Personal Representative of the Estate of Moe Goldman, deceased, Appellee.
    No. 4D06-4982.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Bennett S. Cohn of the Law Offices of Bennett S. Cohn, West Palm Beach, for appellants.
    Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for appellee.
   PER CURIAM.

In its final judgment the trial court reformed a promissory note to include omitted terms. At the same time it entered a judgment for damages based upon several legal theories that the appellants engaged in tortious conduct by omitting those terms. The amount of the damages constituted the principal amount of the note, and in her complaint appellee had requested damages and cancellation of the note.

The appellants claim that the awards were not supported by competent substantial evidence and are inconsistent. There was competent substantial evidence to support the claims. We agree, however, that the awards are inconsistent, because the appellee cannot affirm the note by obtaining its reformation, and at the same time disavow the note by claiming damages (in the amount of the promissory note) for the failure to include those terms.

We reverse the final judgment with directions that the trial court shall allow the appellee to elect her remedy. Electing reformation will permit the appellee to sue on the promissory note and foreclose on the mortgage securing the note. The promissory note and mortgage also include an attorney’s fee provision. Electing a judgment for damages constitutes a disavowal of the promissory note and will require its cancellation. It will permit the appellee to obtain interest at the statutory rate instead of the promissory note rate. The trial court will then enter judgment on the remedy elected by the appellee. That remedy would include prejudgment interest, which we conclude is proper for this pecuniary loss. See Siedlecki v. Arabia, 699 So.2d 1040, 1042 (Fla. 4th DCA 1997).

In all other respects, including the additional recovery for breach of fiduciary duty, we affirm the final judgment.

WARNER, FARMER and KLEIN, JJ., concur.


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    Joshua Paul MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-5040.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Ruger v. State, 941 So.2d 1182 (Fla. 4th DCA 2006).

WARNER, FARMER and GROSS, JJ., concur.


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    La Glenda REED, Appellant, v. Archie GILES, Appellee.
    No. 4D07-2462.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    La Glenda Reed, Blythe, California, pro se.

      No brief filed for appellee.
   PER CURIAM.

La Glenda Reed, the appellant, seeks review of a trial court order denying her motion to dissolve a permanent injunction against domestic violence. Courts have broad discretion regarding injunctions. Miguez v. Miguez, 824 So.2d 258 (Fla. 3d DCA 2002) (citing Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995)). Reed has failed to demonstrate that there was an abuse of discretion. Miguez, 824 So.2d at 258 (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)). We therefore affirm.

Affirmed.

KLEIN, HAZOURI and DAMOORGIAN JJ., concur.


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    Sandra MALU, Appellant, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee.
    No. 4D07-903.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Diane H. Tutt of Diane H. Tutt, P.A., Davie, and Carlos Lidsky of Lidsky, Vae-caro & Montes, Attorneys at Law, P.A., Hialeah, for appellant.
    Beth Tyler Vogelsang, Miami, for appel-lee.
   PER CURIAM.

Affirmed. See Padilla v. Liberty Mutual, 934 So.2d 511 (Fla. 3d DCA 2005).

KLEIN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Derek Thomas CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-548.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Derek Chapman, timely appeals the assessment of costs and fees against him associated with the state’s prosecution of him under the Involuntary Civil Commitment of Sexually Violent Predators Act, also known as the Jimmy Ryce Act. He argues that there is no authority for the assessment of costs and fees. We agree and reverse.

The state sought involuntary commitment of Chapman to the custody of the Department of Children and Families as a sexually violent predator pursuant to the Jimmy Ryce Act. See §§ 394.910-394.932, Fla. Stat. The court found Chapman indigent and appointed a public defender to represent him. After the jury verdict finding him to be a sexually violent predator and committing him to the DCF, the court assessed fees and costs in the amount of $18,514.37. Defendant appeals this assessment.

There is no statutory authority to impose costs and fees for a prosecution under the Sexually Violent Predators Act. In fact, the Department of Children and Family Services is responsible for all costs. § 394.929, Fla. Stat. Although a defendant is entitled to counsel, and the court is required to appoint counsel, there is no provision for a lien for repayment, as there is upon a criminal conviction. See § 938.29, Fla. Stat.

In the criminal law, “[i]t is well established that a court lacks the power to impose costs in a criminal case unless specifically authorized by statute.” Holmes v. State, 658 So.2d 1185, 1186 (Fla. 4th DCA 1995) (quoting Williams v. State, 596 So.2d 758, 758 (Fla. 2d DCA 1992)). While Jimmy Ryce proceedings are civil, the constitutional requirement of counsel is imposed because involuntary commitment triggers due process protections. See Hillsborough County v. Albrechta, 841 So.2d 644 (Fla. 2d DCA 2003) (applying right to counsel to Marchman Act proceedings). Thus, the involuntary nature of the proceedings makes the counsel appointment similar to the appointment in criminal proceedings. Because of this, we apply Holmes and conclude that the trial court lacks the power to impose costs or fees in a Jimmy Ryce proceeding, because the authority to tax them as costs against the involuntarily committed defendant is not authorized by statute.

Reversed.

FARMER and GROSS, JJ., concur.


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    A.D., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellee.
    No. 4D07-3889.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

We accept the State’s concession of error and reverse the judgment. The record does not support the trial court’s finding that the mother had been warned that she was required to appear at the continuation of the adjudicatory hearing, giving “the date, time, and location of said hearing.” See § 39.801(S)(d), Fla. Stat. (2007). Without such a specific warning, she cannot be deemed to have consented to a termination of her parental rights by her non-appearance. Because the final order fails to find any other basis for termination of her parental rights, a new adjudicatory hearing will be necessary.

Reversed.

WARNER, FARMER and GROSS, JJ., concur.


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    CORZO TRUCKING CORP., Obdulio Corzo and Rita Corzo, Appellants, v. Bob WEST, individually and d/b/a West Enterprises, Richard Douse and Nancy Douse, Appellees.
    No. 4D07-846.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.

      Arthur J. Morburger, Miami, and Carl M. Collier, Lake Worth, for appellants.
    No brief filed on behalf of appellees.
   WARNER, J.

The trial court entered an order denying a motion to vacate a default judgment on January 18, 2007. On January 31, 2007, it entered an order granting the same motion. The appellants appeal, contending that the trial court lost jurisdiction to enter the January 31st order, as it was entered more than ten days after the order of denial. We agree and reverse.

Assuming that the trial court intended to reverse itself on the motion to vacate the default judgment, it had to do so within ten days of the original order. In Jared v. Jackson, 483 So.2d 51 (Fla. 4th DCA 1986), we explained,

Once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and that the rights determined and fixed by it are properly enforced.

Id. at 52 (quoting Seddon v. Harpster, 438 So.2d 165, 168 (Fla. 5th DCA 1983)).

Because the court’s January 31st order was entered sua sponte, not pursuant to a motion, Florida Rule of Civil Procedure 1.530(d) also applies:

On Initiative of Court. Not later than 10 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

The Third District applied this rule to similar facts in Penalba v. Penalba, 616 So.2d 165 (Fla. 3d DCA 1993). The trial judge entered a final judgment dissolving the parties’ marriage on July 9, 1992 and adopting the general magistrate’s report filed on July 15th. On July 16th, the former husband served exceptions to the report and filed a motion to vacate. The trial court denied the motion and rejected the exceptions in an order entered September 8th. However, on September 24th, the trial court, sua sponte, vacated the July 9th final judgment and the September 8th order.

On appeal, the court held that the trial court lacked jurisdiction to enter the September 24th order, because it was not entered within the ten days provided in rule 1.530. See also Roosa v. Roosa, 519 So.2d 1108, 1109 (Fla. 4th DCA 1988) (“When the time expired for filing a petition for rehearing ... the Florida court lost jurisdiction of the case.”).

The facts in this case are similar to those in Penalba. The court originally entered an order denying a motion to vacate the final judgment. Subsequent to the deadline for rehearing stated in rule 1.530, the trial court entered an order, sua sponte, granting the motion it had previously denied. In both cases, the courts acted without jurisdiction.

For these reasons, we reverse the January 31st order of the trial court.

FARMER and GROSS, JJ., concur.


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    Jamie VALENTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1785.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted for possession of cocaine with intent to sell within one thousand feet of a publicly owned park in violation of section 893.13(l)(e), Florida Statutes (2006). He appeals, claiming that the court erred in denying his motion for judgment of acquittal, because the state failed to prove that his possession of cocaine was with an intent to sell. We reverse, concluding that the state’s evidence failed to prove an intent to sell.

Sergeant Curry of the Martin County Sheriffs Department testified that he was patrolling the area surrounding Lamar Howard Park, a public park. As he patrolled the park, he observed Valentin walk towards some bushes, drop a white object into the bushes, and proceed to the park playground. Sergeant Curry retrieved the object — a clear ziplock in which several smaller bags were present, each containing a white powdery substance. There were seventeen smaller bags in the larger bag. Suspecting drugs, Sergeant Curry arrested Valentin. The substance in the bags tested positive for cocaine.

At trial, Sergeant Curry testified to his extensive experience with street level drug sales. He explained that based on his education, training, and experience regarding the manner in which cocaine is packaged for sale on the streets, the drugs found in the bushes were packaged for sale to consumers. He estimated that the amount of drugs found would sell for approximately $340 total. When asked on cross-examination whether the quantity and packaging were consistent with personal use, Sergeant Curry admitted, “It’s possible, yes.”

After the close of the state’s case, defense counsel moved for a judgment of acquittal, contending that the state had failed to present any evidence of an intent to sell. The trial court denied the motion. Valentin testified and denied that he was the individual Sergeant Curry saw. The jury, however, convicted Valentin of possession with intent to sell within one thousand feet of a park. The court adjudicated and sentenced Valentin, and he appeals. We find that the issue was properly preserved by the defense motion at trial. We review the sufficiency of the evidence to support the verdict de novo. Sigler v. State, 805 So.2d 32, 34 (Fla. 4th DCA 2001).

The sole evidence presented by the state consisted of Sergeant Curry’s testimony that he saw Valentin drop the baggie, containing seventeen smaller baggies of cocaine, in a bush. He did not see Valentin talk to anyone or do anything to suggest an intent to sell in the park. Not only was the evidence insufficient to show an intent to sell generally, nothing would show that Valentin had an intent to sell within the park as required by the statute. § 893.13(l)(c), Fla. Stat. (“[I]t is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell ... a controlled substance ... in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility.”) (emphasis supplied).

The quantity or packaging of drugs found in a defendant’s possession may indicate an intent to sell. See Lesane v. State, 895 So.2d 1231 (Fla. 4th DCA 2005); Sampson v. State, 863 So.2d 404 (Fla. 4th DCA 2003); Glenn v. State, 824 So.2d 1046 (Fla. 4th DCA 2002); McCullough v. State, 541 So.2d 720 (Fla. 4th DCA 1989). In McCullough, this court discussed the “type of circumstantial proof [] necessary to prove intent to sell.” 541 So.2d at 721. For example, “the amount and quantity of drugs possessed by an individual may be circumstantial evidence of his intent to sell where such amount is inconsistent with personal use. ...” Id. (emphasis supplied). There, the defendant was arrested in possession of fifteen cocaine rocks, which the testimony showed could be used by one person within one day. Therefore, the quantity of drugs did not show possession of drugs with intent to sell.

Discovering individually packaged narcotics does not automatically establish intent to sell. In Jackson v. State, when the defendant was arrested for fleeing a traffic stop, the police officer who conducted a pat down discovered $400 and cocaine which “weighed five grams and was packaged in six ring baggies contained within a larger baggie.” 818 So.2d 539, 541 (Fla. 2d DCA 2002). The court held that the “quantity, even as packaged, was not so large as to imply an intent to sell without other evidence,” as it “was equally plausible that Jackson had purchased the six baggies of cocaine for his personal use.” Id. See also Nelson v. State, 707 So.2d 405, 406 (Fla. 5th DCA 1998) (six packages which each contained a piece of cocaine did not establish intent to sell); D.R.C. v. State, 670 So.2d 1183 (Fla. 5th DCA 1996) (evidence that officers observed the accused discard twenty-three separate, unwrapped rocks of cocaine was insufficient to prove possession with intent to sell); Williams v. State, 569 So.2d 1376, 1377 (Fla. 2d DCA 1990) (evidence consisting of ten pieces of cocaine, marijuana rolling paper, $72, and a weapon was not sufficient to prove intent to sell); C.L.L. v. State, 566 So.2d 878 (Fla. 3d DCA 1990) (evidence of ten pieces of cocaine in plastic baggies was insufficient to show intent to sell).

In this case, Valentin possessed seventeen individual baggies with 8.3 grams of cocaine in them, which included the weight of the baggies. Although Sergeant Curry testified that this was consistent with an intent to sell, he also admitted that it could be for personal use. See D.R.C., 670 So.2d at 1185 (“Since the testimony of the officer was consistent with D.R.C. being a user as well as a seller, the circumstances relied upon did not lead to the one conclusion that D.R.C. was guilty of possession with intent to sell cocaine.”). See also C.L.L., 566 So.2d at 878 (finding no intent to sell because the “officer did not testify that the quantity and packaging were indicative of an intent to sell, as opposed to holding the contraband for personal use”). Sergeant Curry did not find any money or drug paraphernalia on Valentin, and there are no other facts which would suggest an intent to sell.

The state presented circumstantial evidence as consistent with personal possession as with an intent to sell. It presented no evidence showing an intent to sell within the park. Therefore, the court erred in denying the motion for judgment of acquittal.

We reverse and remand with directions to enter judgment for simple possession of cocaine, pursuant to section 924.34, Florida Statutes (2006).

FARMER and GROSS, JJ., concur.

      . "When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.” § 924.34, Fla. Stat.


text:
    MORGAN STANLEY & CO. INCORPORATED, Appellant, v. COLEMAN (PARENT) HOLDINGS INC., Appellee.
    No. 4D05-4756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Sylvia Walbolt of Carlton Fields, P.A., Tampa, and Bruce Rogow of Bruce Rogow, P.A., Fort Lauderdale, for appellant.
    Jack Scarola of Searcy, Denney, Scarola, Barnhardt & Shipley, P.A., West Palm Beach, and Joel D. Eaton of Podhurst Orseck, P.A., Miami, for appellee.
   PER CURIAM.

By order dated January 27, 2006, this appeal was stayed pending the outcome of case No. 4D05-2606, which was Morgan Stanley’s appeal of the final judgment awarding damages in favor of Coleman. This instant appeal was taken from the post-verdict cost judgment entered in favor of Coleman.

In the earlier case, this court reversed the award in favor of Coleman and directed that a judgment be entered in favor of Morgan Stanley. Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124 (Fla. 4th DCA 2007). Coleman then sought review in the Florida Supreme Court, but the Supreme Court denied review by order dated December 12, 2007. Accordingly, the stay previously entered in this case was lifted by order dated January 16, 2008.

We further ordered appellee Coleman to advise this court whether, in light of the finality of our decision reversing the award of damages, the cost judgment should now be similarly reversed. Appellee has responded that there is no reason not to reverse the cost judgment.

The cost judgment entered by the trial court on November 22, 2005, is therefore reversed.

SHAHOOD, C.J., POLEN and MAY, JJ., concur.


text:
    Cortez KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1035.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Cortez King, South Bay, pro se.
    No appearance required for appellee.
   On Motion for Rehearing

PER CURIAM.

The motion for rehearing is granted. We withdraw our previously issued decision and substitute the following in its place.

The defendant appeals the trial court’s denial of his motion to correct an illegal sentence entered upon his violation of probation. He alleged that the court failed to credit his sentence to reflect prison time he served prior to being released on probation. The trial court denied the motion as successive to the claim raised in his prior motion. Because a manifest injustice may have occurred, we reverse and remand the case for further proceedings.

The defendant was originally charged with possession, delivery or sale of a controlled substance within 1,000 feet of a school, a first degree felony. He maintains that he pled to a third degree felony. From the record provided, we are unable to discern the degree of charge to which he actually pled. Nevertheless, he was sentenced to eighteen months in prison and three years probation, suggesting that the charge was reduced from a first degree felony as part of the plea.

After having served the prison term of his sentence, he was placed on probation, which he violated. He pled to the violation. The plea form indicated that he would receive 48.3 months in Florida State Prison with credit for 58 days time served following service of the warrant, which is the precise time his sentence reflects. The box for prison credit was not checked.

He filed a grievance with the prison authorities contesting the failure to be given credit for the 18 months spent in prison prior to being placed on probation. He was informed that the issue of credit for prison time needed to be addressed by the sentencing court.

The defendant then filed a motion for clarification of his sentence, which was really a motion for relief, pursuant to Florida Rule of Criminal Procedure 3.800(a). It stated that he had not been given credit for the 18 months prison time served. The trial court, a different judge than had accepted the plea, summarily denied the motion stating that “as part of the plea agreement, the Defendant agreed that he would only receive credit for time served from the date the violation of probation warrant was served.” The court attached a copy of the plea agreement. However, the agreement only said “48.3 credit since service of warrani^58 days.” It did not mention prison credit or contain an explicit waiver of the prison credit. The defendant did not appeal that order.

Later, the defendant filed the same claim in a motion to correct an illegal sentence pursuant to rule 3.800(a). The state responded that the motion was successive. The trial court agreed and summarily denied the motion for the reasons stated in the state’s response.

We can certainly understand the trial court’s order finding the second motion successive because it was. We also understand that the defendant failed to appeal the order denying his first motion. However, State v. McBride, 848 So.2d 287 (Fla.2003) teaches us that we should consider an appeal of a 3.800 motion, even if it is successive and would be barred by collateral estoppel, if a manifest injustice results.

Here, the maximum penalty for a first degree felony is thirty years while the maximum penalty for a third degree felony is five years. The defendant spent 18 months in prison before violating his probation. He was then sentenced to another 48.3 months. The total of the two incarcerations would exceed the five-year maximum penalty that could be imposed for a third degree felony. It would also constitute an illegal sentence if the defendant did not voluntarily and explicitly waive his right to credit for prison time served for a first degree felony. See Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995) (holding that a waiver of prison time must be voluntary and specific). See also Burriesci v. State, 955 So.2d 645 (Fla. 4th DCA 2007) (explaining that denial of a claim of an entitlement to additional jail credit may constitute a manifest injustice, which is an exception to the procedural bar of collateral estoppel); Isom v. State, 915 So.2d 183 (Fla. 3d DCA 2005) (recognizing that failure to provide credit for prison time served, absent an explicit waiver, constitutes a manifest injustice).

We therefore remand the case to the trial court to determine the level of felony to which King pled and whether the record reflects an explicit waiver of prison time. We simply cannot discern this information from the partial record supplied to us. Scott v. State, 958 So.2d 596 (Fla. 4th DCA 2007) (waiver of credit must be explicit on the record); Autrey v. State, 736 So.2d 94 (Fla. 4th DCA 1999).

Reversed and Remanded.

WARNER, TAYLOR and MAY, JJ., concur.