author: CASANUEVA, Judge.

text:
    James GREIDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-592.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, for Appellee.
   CASANUEVA, Judge.

James Greider appeals his conviction for possession of crack cocaine and drug paraphernalia. Following the denial of his dis-positive motion to suppress, Mr. Greider entered a plea expressly reserving his right to appeal. Mr. Greider now asserts reversible error in the denial of the motion to suppress. We reverse and remand for discharge because the trial court erred in denying Mr. Greider’s motion to suppress.

Factual and Procedural Background

In January 2005, Officer Todd Perna of the Sarasota Police Department was on patrol in Bay Island Park around 11:00 p.m. when he observed a small black sedan parked in a legal parking space. Vehicles are permitted in the park until midnight. The officer testified there were “towels rolled up in the window so you couldn’t see inside the vehicle” and described the towels hanging “like curtains” outside of the car on both sides. The officer parked directly behind the black sedan but did not activate the overhead lights on his police car. Officer Perna testified that he was concerned for the welfare of any potential occupants. On cross-examination, defense counsel asked the officer if he needed to refresh his memory. After looking at the probable cause affidavit that he prepared, Officer Perna clarified that he actually first approached the passenger side of Mr. Greider’s car to determine if anyone was inside. Mr. Greider rolled down the passenger side window and responded that he was fine but that someone in a red car had chased him from Manatee County. The officer testified that Mr. Greider said the red car was now parked on the other side of the bridge. Having just patrolled that side of the bridge the officer knew there was no red car parked over there. Officer Perna testified that this initial discussion through the passenger window dispelled his concerns about Mr. Greider’s well-being. The officer testified that although it was strange that Mr. Greider was in a car with towels covering the windows, he did not think that Mr. Greider had committed or was about to commit a crime. Officer Perna testified that he then walked around to the driver’s side of the car and ordered Mr. Greider to roll down the window, causing the towel on that side of the vehicle to fall. The officer shined his flashlight into the car and saw what appeared to be a glass crack pipe in the center console next to the gear shift. Because the officer was alone, he told Mr. Greider to keep his hands in the air for officer safety. The officer then observed a small opaque orange vial in between Mr. Greider’s legs that resembled a lip balm container. The officer testified that Mr. Greider fumbled with the vial between his legs and then put the vial inside a compartment in the driver’s side door. The officer opened Mr. Greider’s door and directed him to step out. The officer looked into the door’s compartment, observed crack cocaine pieces, and noticed that the top was off the orange vial. The officer arrested Mr. Greider for possession of crack cocaine and drug paraphernalia.

After argument from both defense counsel and the state, the trial court announced its findings:

It’s clear from the evidence that was presented here today that the officer approached the Defendant’s vehicle out of concern because of the unusual manner in which the car — where the car presented itself with the towels sticking out of the windows, and parked late at night. ' I think the officer had reason to check on the welfare of the occupant.
There really was no testimony concerning whether he was blocking his way in leaving the park. But I think the officer would have been remiss if he would have ignored the rather unusual way in which the car was situated and the way it presented itself with the towels in the window. The officer did the right thing by approaching to see if the defendant was okay or what was going on in the vehicle at the time of night.
Once the Defendant lowered the window, once the officer noticed the items that were clearly paraphernalia in plain view, he was justified in asking the defendant to exit the vehicle. At that point, he was justified in arresting him and doing any search incident to arrest. So I am going to deny the motion to suppress the physical evidence.

The trial court declared that the motion was dispositive and Mr. Greider entered his plea, expressly reserving his right to appeal. This appeal followed.

Standard Of Review

Appellate review of a motion to suppress is a mixed question of law and fact. Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005). Deference is given to the trial court’s factual findings if they are supported by competent and substantial evidence. Id. (citing Cillo v. State, 849 So.2d 353, 354 (Fla. 2d DCA 2003)).

Analysis

“The Fourth Amendment to the United States Constitution and section 12 of Florida’s Declaration of Rights guarantee citizens the right to be free from unreasonable searches and seizures.” Golphin v. State, 945 So.2d 1174, 1179 (Fla.2006). Because not all encounters between a law enforcement officer and a citizen constitute a seizure, it is first necessary to determine whether a constitutionally recognized “seizure” occurred.

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), our supreme court defined three levels of police-citizen encounters.

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. . Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.

Id. Next on the escalating hierarchy of police-citizen encounters is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, 626 So.2d at 186. The third and final level of a police-citizen encounter “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.

Here, the record establishes that Officer Perna and Mr. Greider were involved in two police-citizen encounters. Each must be examined to determine whether the officer’s contact comported with constitutional requirements. “Items obtained in violation of Florida’s Constitutional protection shall be excluded from evidence if such items would be excluded pursuant to United States Supreme Court jurisprudence.” Golphin, 945 So.2d at 1180.

The first police-citizen encounter began when Officer Perna approached Mr. Greider’s car and made contact with Mr. Greider from the passenger side. This consensual encounter concluded after the initial conversation with Mr. Greider which dispelled the officer’s concern for his safety. We agree with the trial court that the welfare check was appropriate. It is important to recall the officer’s testimony that after completing this welfare check, he didn’t think any criminal activity had occurred or was about to occur.

The second police-citizen encounter occurred when Officer Perna walked around the vehicle to the driver’s side. Officer Perna testified that he ordered Mr. Greider to roll down the window, causing the towel that obscured his view to fall. He then shined his flashlight into the ear observing what appeared to be, in his experience, a glass crack pipe in the center console next to the gear shift.

We do not ignore Officer Perna’s testimony that he possessed suspicions regarding the unusual circumstance of the towels covering the windows, even after he had been assured all was well. However, a suspicion, by itself, may reflect well on the officer’s instincts but it does not meet the Fourth Amendment’s requirement of “at least reasonable suspicion that the individual seized is engaged in wrongdoing.” Id. Here, there was no evidence of any criminal activity. This event was a second level citizen encounter, an investigatory stop, undertaken without appropriate legal justification.

Within the meaning of the Fourth Amendment, in the absence of a formal arrest, a seizure occurs:

[0]nly if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where a person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Golphin, 945 So.2d at 1182 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality opinion)).

Officer Perna testified that Mr. Greider did not roll the driver-side window down voluntarily but that he ordered him to lower it. It was at this point that the glass pipe was in plain view. We conclude that Officer Perna’s demand resulted in a seizure because a reasonable person in Mr. Greider’s position would not have felt free to disregard the officer’s command, end the encounter, and drive away. See Bautista, 902 So.2d 312 (holding that a fraudulent identification, discovered only after an officer’s demand that the defendant produce a wallet from his pocket, should have been suppressed as the product of an unlawful seizure).

We make two observations. We first note that the court’s ruling did not distinguish the interaction on the passenger side of the vehicle from that which occurred on the driver’s side. The trial court concluded that “[o]nce the Defendant lowered the window, once the officer noticed the items that were clearly paraphernalia in plain view he was justified in asking the defendant to exit the vehicle.” However the trial court’s conclusion is not supported by competent and substantial evidence. In comparing the trial court’s ruling with the officer’s testimony, we conclude the trial court mistakenly overlooked the fact that the paraphernalia was discovered only after the police officer had intruded into Mr. Greider’s privacy. The trial court’s ruling finds probable cause by improperly conflating the passenger side consensual welfare check into the driver’s side nonconsensual lowering of the window. The record reflects that it was the unlawful seizure of Mr. Greider from the driver’s side of the car that ultimately resulted in the plain view of the paraphernalia.

We also note that there are no other facts suggesting that Mr. Greider had committed, was committing, or was about to commit a crime. While the conduct of sitting in an automobile with towels covering the windows is unusual and may cause an officer to be suspicious of such behavior, the law requires more than mere suspicion — it requires that the conduct create an articulable suspicion of criminal activity. See § 901.151(2), Fla. Stat. (2005) (authorizing an investigatory stop when circumstances “reasonably indicate that such person has committed, is committing, or is about to commit a [crime]”); Popple, 626 So.2d at 186 (requiring a “well-founded, articulable suspicion of criminal activity” to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Conclusion

In sum, a proper analysis of the case at bar requires partitioning the encounter continuum described by Officer Perna into two police-citizen encounters. This approach recognizes that the second encounter was an unlawful detention and invoked constitutional safeguards. We agree with the trial court that Officer Perna had a duty to check on Mr. Greider. However, once it was determined that Mr. Greider was “okay” and not involved in any criminal activity, the officer lacked the proper authority to order Mr. Greider to lower his window. We conclude and hold that the illegal detention and search of Mr. Greider were constitutionally invalid actions by Officer Perna and that the motion to suppress should have been granted.

Reversed and remanded.

FULMER and WALLACE, JJ„ concur.

      . Mr. Greider also appeals a cost-related sentencing error. In light of our disposition reversing and remanding the case, the alleged sentencing error is moot.

      . We recognize there is a reduced expectation of privacy in a car because cars are readily mobile and also are highly regulated by various government agencies and police authorities. See California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). While this reduced expectation of privacy may permit a search of a vehicle without a warrant, it does not allow a search absent probable cause. Id. at 392, 105 S.Ct. 2066.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Federico VENTURA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-802.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
   SILBERMAN, Judge.

Federico Ventura challenges the post-conviction court’s order denying his second refiled motion for postconviction relief as facially insufficient. We reverse.

In 1994, Ventura entered a guilty plea to carrying a concealed firearm and driving while license suspended. In September 2006, through counsel, he filed his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He asserted that he was not advised by the trial judge or anyone else that his plea may subject him to deportation, in violation of rule 3.172(c)(8). He alleged that his primary language is Mam and that if anyone had told him of the immigration consequences of his plea he did not understand it because no one spoke to him in Mam. He had completed only four years of elementary school in Guatemala, and when he was arrested he had been in the United States for just over a year working as a day laborer picking crops. At the time of his guilty plea, he did not speak, read, or comprehend English. Although a Spanish translator was used by the court, he understood little of what was being explained because “he had a rudimentary ability to speak and comprehend perhaps 25 different Spanish phrases.” Further, the plea form did not advise him of the possibility of deportation.

Ventura stated that in July 2006 he was threatened with deportation because of the 1994 convictions. He claimed that had he been told that the entry of his guilty plea would subject him to deportation, he would not have entered the guilty plea and would have proceeded to trial. He asserted that his trial counsel was ineffective in not recognizing that he required a translator who spoke Mam.

In reviewing the motion, the postconviction court noted that there was an outstanding arrest warrant for Ventura for his failure to comply with the terms of his probation. The postconviction court dismissed the motion without prejudice, stating that it would not entertain the motion until the warrant was satisfied. Ventura does not argue any error as to that order.

In December 2006, Ventura refiled his motion. The postconviction court again dismissed it, citing to State v. Green, 944 So.2d 208 (Fla.2006). The court noted that the motion was filed more than ten years after the two-year limit contained in rule 3.850 and found that Ventura had failed to “allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within the two year time limit.” The dismissal was without prejudice to Ventura refiling a facially sufficient motion within sixty days.

In January 2007, Ventura filed what he designated as his second refiled motion. As to timeliness, he argued that the post-conviction court had misinterpreted Green. He contended that he was not required to allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of the original 1994 sentencing date. The postconviction court denied relief based on Green, and this appeal ensued.

Prior to Green, in order to establish prejudice warranting relief for a claim regarding the failure to warn of deportation consequences, defendants “had to establish that they did not know that the plea might result in deportation, that they were ‘threatened’ with deportation because of the plea, and that had they known of the possible consequence they would not have entered the plea.” Peart v. State, 756 So.2d 42, 47 (Fla.2000), receded from in Green, 944 So.2d at 210. A motion for postconviction relief would be timely if it were filed within two years of the time “when the defendant learns or should have learned (whichever is earlier) of the threat of deportation based on the plea.” 756 So.2d at 48.

In Green, the supreme court receded from the holding in Peart concerning the timeliness of the motion. The court stated that the two-year period under rule 3.850 “commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation.” 944 So.2d at 210. The defendant would have to establish that he or she is subject to deportation because of the plea rather than establishing that he or she has been specifically threatened with deportation. Id.

The supreme court was mindful of the implications that its decision would have on certain defendants. The court stated as follows:

Therefore, in the interest of fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today. In cases now pending in the trial and appellate courts on this issue, courts should apply the criteria set out herein. If relief is denied in a case now pending because the defendant has not alleged or established that he or she is subject to or threatened with deportation, the defendant should be allowed to refile in compliance with the standards set out in this case within sixty days of affirmance, denial, or dismissal. All other defendants have two years from the date their cases become final in which to seek relief under our holding today.

Id. at 219.

Ventura argues that the postconviction court misread Green as it applies to defendants whose cases are already final. We agree. Under Green, a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging “that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.” 944 So.2d at 219. Ventura’s second refiled motion meets these pleading requirements.

The trial court’s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation.

Because Ventura’s second refiled motion was facially sufficient under Green, we reverse and remand for the trial court to conduct an evidentiary hearing on the claim.

Reversed and remanded.

SALCINES and DAVIS, JJ., Concur.

      . Ventura asserted that Mam is one of four dialects that derive from the Mayan culture.

      . As noted by the Third District in Markland v. State, 971 So.2d 832, 834 (Fla. 3d DCA 2007), Green does not revive a claim that is already "time-barred under the more liberal time standard ■ contained in the Peart decision.”


author: STRINGER, Judge.

text:
    Michael L. HETTICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3792.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
   STRINGER, Judge.

Michael L. Hettick appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although Mr. Hettick’s sentence is not illegal, we reverse and remand because the postcon-viction court should have considered his motion as if it were filed pursuant to rule 3.850.

Mr. Hettick’s single claim alleges that the aggregate of his concurrent sentences in three separate cases exceeded a negotiated plea of “83 mos FSP cap concurrent,” as reflected on the written plea form. Mr. Hettick was actually sentenced to concurrent terms totaling 120 months: 60 months in prison, followed by 2 years of community control and 3 years of drug offender probation. In his motion, Mr. Hettick asked the postconviction court to correct his erroneous sentences by resentencing him to concurrent terms totaling no more than 83 months.

The postconviction court denied the motion because the 60-month incarcerative portion of Mr. Hettick’s concurrent sentences did not conflict with the written plea agreement’s limitation of the prison term to 83 months. The postconviction court also found that Mr. Hettick did not allege and the written plea form did not reflect any agreements as to the length of postincarcerative supervision; therefore, the sentences did not violate the terms of his negotiated plea.

There are two problems with the postconviction court’s order. First, the postconviction court should have recognized that Mr. Hettick’s claim was not cognizable pursuant to rule 3.800(a). The thrust of Mr. Hettick’s claim is that the trial court violated the terms of his negotiated plea agreement, rendering his plea involuntary. Properly pleaded, this type of claim is cognizable under rule 3.850. See Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007) (Lawson, J., concurring specially) (observing that because there is no procedure in the Florida Rules of Criminal Procedure for a “motion to enforce plea agreement,” the only avenue available to the movant is to file a claim pursuant to rule 3.850). Because the motion was properly sworn and was filed within the time limitations of that rule, the postconviction court should have treated it as such. See Riviere v. State, 965 So.2d 845 (Fla. 2d DCA 2007).

Second, the postconviction court’s reasons for rejecting Mr. Hettick’s claim were flawed. The postconviction court essentially concluded that the silence of the plea agreement as to the length of postin-carcerative supervision meant that the court was free to impose community control and drug offender probation of any length. Generally, however, a defendant’s understanding of the significance and consequences of his or her plea cannot be determined solely from the document’s silence as to a particular term. See, e.g., Green v. Dugger, 575 So.2d 750, 751 (Fla. 2d DCA 1991) (remanding for the court to re-examine the record to determine whether the defendant’s plea agreement was violated by the addition of probation to his sentence and observing that an evidentiary hearing might be required); Eggers v. State, 624 So.2d 336, 337-38 (Fla. 1st DCA 1993) (holding that a trial court must inform the defendant that the prison term specified in the plea agreement will be followed by a probationary term, if that is the court’s intent).

In this case, however, any determination on the merits of Mr. Hettick’s specific claim would be premature as the postcon-viction court has not had the opportunity to consider it as filed under rule 3.850. We therefore reverse the postconviction court’s order and remand for reconsideration under rule 3.850. If the postconviction court determines that the motion is facially insufficient, it must grant Mr. Het-tick one opportunity to correct any pleading deficiency. See Spera v. State, 971 So.2d 754 (Fla.2007). If the court summarily denies the motion, it must attach to its order portions of the record conclusively refuting the claim.

Reversed and remanded.

CASANUEVA and KELLY, JJ., Concur.


author: PER CURIAM.

text:
    Robert TAYLOR, Tim Taylor, Scott Taylor, Jim Taylor, Susan Danielson, Patty Merrick, Andy Taylor, Tony Taylor, Marcella Froehlich, Charlotte Blanks, Bradley Taylor Inman, and Charles Inman, Appellants, v. Mary E. MILLER, individually, and as Trustee of the Mary E. Long Revocable Living Trust adopted September 18, 2003, and as Personal Representative under the Mary E. Long Last Will and Testament and Robert L. Miller, individually and as successor Trustee of the Mary E. Long Revocable Living Trust dated September 18, 2003, and alternate Personal Representative under the Last Will and Testament of Mary E. Long, Appellees.
    No. 2D07-4463.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
    Randolph L. Smith, Bradenton, for Appellants.
    Kimberly A. Bald and Brian L. Trimyer of Harllee & Bald, Bradenton, for Appel-lees.
   PER CURIAM.

The appellants, who were the plaintiffs in the circuit court action, have challenged a final judgment in favor of the defendants on the plaintiffs’ motion for attorneys’ fees and costs. The circuit court apparently denied the plaintiffs’ motion for attorneys’ fees as untimely based upon the reasoning expressed in Barco v. School Board of Pinellas County, 946 So.2d 1244 (Fla. 2d DCA 2007), a decision recently quashed by the Florida Supreme Court. 975 So.2d 1116 (Fla.2008). Therefore, the appellants have filed a “motion for reversal under consent,” which we grant.

A motion for attorneys’ fees and costs filed after the jury verdict but before the entry of the final judgment is timely under Florida Rule of Civil Procedure 1.525 (2006 amend.). See Barco, 33 Fla. L. Weekly at S90, 975 So.2d at 1118 (holding that rule 1.525 does not mandate service of a motion for attorneys’ fees or costs only within a thirty-day window following the filing of the judgment) (emphasis added). Therefore, we reverse the final judgment on attorneys’ fees as well as the circuit court’s orders striking the plaintiffs’ motion for attorneys’ fees and denying the plaintiffs’ motions for rehearing and reconsideration. Furthermore, we remand for reinstatement of the circuit court’s order granting the plaintiffs’ motion for entitlement to attorneys’ fees, and for further proceedings as necessary.

Reversed and remanded with directions.

CASANUEVA, SALCINES, and SILBERMAN, JJ., Concur.


text:
    Robert W. MEYER, Appellant, v. SOUTH SEAS NORTHWEST CONDOMINIUM APARTMENTS OF MARCO ISLAND, INC., Celia Deifik, an Individual, and Eric J. Vasquez, an Individual, Appellees.
    No. 2D06-5254.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
    Robert W. Meyer, pro se.
    Neil E. Snyder and Eric J. Vasquez of Law Offices of Eric J. Yasquez, Naples, for Appellees South Seas Northwest Condominium Apartments of Marco Island, Inc. and Eric J. Vasquez.
    Celia E. Deifik, pro se.
   PER CURIAM.

Robert W. Meyer appeals the trial court’s order dismissing his complaint with prejudice in favor of Celia Deifik. We affirm.

Acting pro se, Mr. Meyer filed a complaint and alleged several causes of action against Ms. Deifik and others. The defendants filed motions to dismiss with prejudice, asserting the following: (1) in earlier litigation, an order had been entered prohibiting Mr. Meyer from filing pleadings as a pro se litigant against South Seas Northwest Condominium Apartments of Marco Island, Inc., its agents and representatives, and that the current litigation violated that order; (2) Mr. Meyer’s claims are barred by the doctrines of res judicata and collateral estoppel; (3) on its face, the complaint is barred by the applicable statute of limitations; and (4) the complaint fails to state a cause of action.

The trial court dismissed the complaint with prejudice. After thoroughly reviewing the record, we conclude that Mr. Meyer has not established that the trial court erred in entering its order of dismissal. Accordingly, we affirm the order of dismissal.

Affirmed.

CASANUEVA and SILBERMAN, JJ., and LEVY, DAVID L., Associate Senior Judge, Concur.

      . Although the style of this appeal lists three appellees, all of whom filed briefs, the order of dismissal that is before us is in favor of Ms. Deifik alone. A separate appeal is pending from a second order of dismissal that the trial court entered in favor of South Seas and Mr. Vasquez.

      . In this appeal, Mr. Meyer argues that a circuit court order that had been entered in 2001 is invalid or should be overturned. That order prohibits him from filing pleadings as a pro se litigant against South Seas Northwest Condominium Apartments, its agents and representatives. The trial court noted that Mr. Meyer’s complaint falls within the prohibition of the 2001 order, and it does not appear from our record that Mr. Meyer filed with the trial court any appropriate request for relief from that order.


text:
    James Russell BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4874.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James Russell Barnes appeals his resen-tencing on his conviction for attempted carjacking after the trial court granted his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On appeal, Barnes argues that his new written sentence does not conform to the trial court’s oral pronouncement of sentence at the resentencing hearing. The State concedes the error.

The written sentence provides that Barnes’ prison releasee reoffender (PRR) sentence run consecutively to his habitual violent felony offender (HVFO) minimum mandatory sentence even though the trial court orally pronounced that his PRR and HVFO sentences were to run concurrently. The trial court erred in entering a written sentence that did not conform to the court’s oral pronouncement. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003) (“[A] court’s oral pronouncement of sentence controls over the written document.”); Guerra v. State, 927 So.2d 248, 249 (Fla. 2d DCA 2006) (“If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement.”). Barnes properly preserved this issue by filing a motion to correct sentencing error pursuant to rule 3.800(b). Accordingly, we reverse and remand for correction of Barnes’ written sentence.

Reversed and remanded.

SILBERMAN, CANADY, and WALLACE, JJ., Concur.


author: FARMER, J.

text:
    Wanas WALLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3193.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Carey Haughwout, Public Defender, John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The issues on this appeal concern defendant’s convictions for robbery by sudden snatching, three counts of fraudulent use of a credit card, and grand theft by fraudulent use of credit card. We reverse all of them. Only the grand theft charge may be retried.

There was no evidence presented by the state to show that the robbery of the victim’s purse occurred by sudden snatching. As we held in Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003), the stolen property must have been “abruptly and unexpectedly plucked from the embrace of the person, not from that person’s figurative biosphere.” In this case, the state presented no testimony or other evidence indicating that the purse was taken from the victim’s person. Accordingly, the judgment and sentence for robbery by sudden snatching must be reduced to petit theft.

In proving up the charge of grand theft by fraudulent use of credit card, the state relied on an affidavit given by the owner of the credit card as to its use without the permission of the owner. In admitting the affidavit, the court held that the affidavit qualified for admission under the business records exception to the hearsay rule. § 90.803(6), Fla. Stat. (2007). This was error.

To secure admissibility as a business record, the proponent must show that the record (1) was made at or near the time of the event recorded; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. Yisrael v. State, — So.2d -,-, 2008 WL 450398 *4, 33 Fla. L. Weekly S131 (Fla. Feb. 21, 2008) (citing Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999)). In Brooks v. State, 918 So.2d 181 (Fla.2005), the court made clear that:

“To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity. If this predicate is not satisfied, then the information contained in the record is inadmissible hearsay, unless it falls within another exception to the hearsay rule.” [c.o.]

918 So.2d at 193.

In this case, the affidavit was a statement under oath by the owner of the credit card who was not the witness who identified the affidavit in court. It was introduced as a business record of the Chase Manhattan Bank. No witness of the Bank gave testimony as to personal knowledge of the information in the affidavit, how the affidavit was obtained, or how it constituted a business record of the Bank. There was no testimony from the custodian of the Bank’s records. The witness introducing the affidavit was the fraud investigator for the Bank who apparently procured the affidavit. As introduced at trial, the affidavit had none of the required indicia of reliability for a business record. Because this is an erroneous admission of evidence, the remedy is a new trial.

Finally we accept the state’s concession that the three counts of fraudulent use of a credit card are different degrees of the crime of grand theft by fraudulent use of a credit card and the trial court should have granted the motion for judgment of acquittal as to those counts.

The conviction for robbery by sudden snatching is reduced to petit theft, and defendant shall be resentenced accordingly. Because our reversal results in judgments of acquittal on counts II, III and IV, only count V (grand theft by fraudulent use of credit card) may be retried.

Reversed.

STONE and WARNER, JJ., concur.


text:
    BETHESDA MEMORIAL HOSPITAL, INC., Appellant, v. Judie LASKA, Appellee.
    No. 4D07-2593.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Steven R. Braten of Shafritz and Bra-ten, P.A., Delray Beach, for appellant.
    Mark B. Carroll of Fazio DiSalvo Cannon Abers Podrecca Fazio & Carroll, Fort Lauderdale, for appellee.
   FARMER, J.

The circuit court in Palm Beach County has lately vacated a clerk’s default upon a finding of excusable neglect. Plaintiff necessarily invokes the standard that the court grossly abused discretion. Being unable to make out so extraordinary an abuse of discretion, we affirm.

Plaintiff sued one of its former patients for unpaid hospital charges. When no answer was filed, it procured a clerk’s default. And in due course the trial court entered a final judgment. Five days after entry of judgment, defendant served a motion to vacate the default and consequent judgment, supported by an affidavit from her husband. He explained under oath that he had received the suit papers and promptly “dropped them off’ at the offices of an attorney who was representing him in an unrelated matter. He failed, however, to follow up that delivery with a phone call to the lawyer, calling his attention to the due date. The matter did not come to the lawyer’s attention until it was too late. His neglect in failing to speak to the attorney was deemed excusable by the trial judge.

In North Shore Hospital Inc. v. Barber, 143 So.2d 849 (Fla.1962), the Florida Supreme Court addressed the issue of the appropriate standard for an appellate court to review a decision vacating a default. In that case, the trial court had found excusable neglect and set aside the clerk’s default. On appeal, the district court had concluded that mere abuse of discretion was the correct standard of review and reversed the trial court. In discussing the standard of review the Florida Supreme Court said:

“The second point in direct conflict with prior decisions of this court is the holding by the District Court that a mere abuse of the trial judge’s discretion is a sufficient basis for reversal of his ruling on the motion to vacate.... This court [has] held that a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate. This is not to say that the District Court’s reversal is fatally erroneous merely because they omitted to use the words ‘gross abuse’, but when this omission is considered in light of the opinion as a whole, it becomes apparent that the District Court departed from established law and attributed to our prior decisions erroneous principles of law so as to create a direct conflict.”

143 So.2d at 852. [e.s., c.o.] In short, when the trial court has vacated a default upon a finding of excusable neglect, an appellate court would have to discern a gross abuse of discretion to reverse. See also Sterling Drug Inc. v. Wright, 342 So.2d 503 (Fla.1977) (same).

We agree with the Second District that it is well-nigh impossible to define any meaningful difference between a simple abuse of discretion and one that is gross. See Allstate Floridian Insurance Co. v. Ronco Inventions, 890 So.2d 300, 302 (Fla. 2d DCA 2004) (“we have no definition of what a ‘gross’ abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion.”). We know from the Florida Supreme Court in Canakaris that a mine-run abuse of discretion is something no reasonable judge would do. Yet in prescribing the standard of gross abuse of discretion, the Florida Supreme Court has not itself sought to define what would make an exercise of discretion more than merely unreasonable — that is to say, what would make it gross.

We suppose that the Florida Supreme Court has prescribed this most forbearing standard of review — an abuse of discretion that is not merely commonplace but partakes of something ineffably greater — because the reasons for relieving a party from a failure to answer a complaint timely are myriad yet singular. Whether to grant relief will be heavily affected by the trial judiciary’s perceptions of local court conditions and requirements, as well as the mien of parties and lawyers, which are simply inaccessible to a cloistered appellate judiciary. Thus the Florida Supreme Court’s requirement of gross abuse is, we think, its aphoristic direction to appellate judges that they should be as deferential to a trial judge’s decision vacating a default as they can possibly be, upsetting it very rarely and only with undeniable provocation.

Plaintiff argues that the husband’s conduct in failing to speak to or follow up with the attorney constitutes gross negligence which, if so, would not be excusable. See North Shore Hospital, 143 So.2d at 853 (“If the party be guilty of gross negligence, the default will not be opened.”). One problem with that argument is that the trial judge did not think his negligence inexcusable. Which by necessary implication means he did not think it grossly negligent.

Somero v. Hendry, 467 So.2d 1103, (Fla. 4th DCA 1985), makes the point that our cases follow a theme in upholding decisions vacating defaults:

“Where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation, the matter should be permitted to be heard on the merits.”

In Shurgard Storage Ctrs. v. Parker, 755 So.2d 695, 696 (Fla. 4th DCA 1999), we found administrative mishandling and misrouting of suit papers between offices a “clear case” of excusable neglect. In Al Hendrickson Toyota Inc. v. Yampolsky, 695 So.2d 948 (Fla. 4th DCA 1997), a “calendaring” error was excusable. In Supro Corp. v. Bridwell, 361 So.2d 734, 735 (Fla. 4th DCA 1978), we found excusable counsel’s failure to appear at trial because his file had been misplaced. We summarized these holdings in Jeyanandarajan v. Freedman, 863 So.2d 432, 433-34 (Fla. 4th DCA 2003) thus:

“The pattern which emerges from these and the myriad of cases not cited here is best stated negatively: a default will not be set aside where the defaulted party or his attorney (1) simply forgot or (2) intentionally ignored the necessity to take appropriate action; that is to say, where the conduct could reasonably be characterized as partaking of gross negligence or as constituting a willful and intentional refusal to act.”

In finding the husband’s neglect excusable in this case the trial judge was soundly planted amidst the common theme of these holdings.

Affirmed.

WARNER and GROSS, JJ., concur.

      . Although defendant failed to tender a formal Answer with the motion papers, the affidavit described meritorious defenses of unreasonable medical charging and asserted the absence of any open account or account stated relationship between the parties. We agree that the motion papers sufficiently asserted the existence of a meritorious defense.

      . Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) ("discretion is abused only where no reasonable man would take the view adopted by the trial court”).


author: STEVENSON, J.

text:
    Lisa BOLAND, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-3061.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Luciana Dias, West Palm Beach, for appellant.
    Terry P. Verduin, West Palm Beach, for appellee.
   STEVENSON, J.

This appeal involves the denial of disability benefits under the Department of Children and Families’ SSI-related MEDS program. An applicant who is initially denied disability benefits may seek an administrative hearing, followed by an appeal to the appropriate district court, if necessary. The administrative hearing officer is required to engage in the sequential, five-step analysis set forth in 20 C.F.R. § 416.920 in order to determine whether the applicant is entitled to benefits. See Sapp v. Fla. Dep’t of Children & Families, 801 So.2d 213, 214 (Fla. 4th DCA 2001); Axilrod v. State, Dep’t of Children & Family Servs., 799 So.2d 1103, 1106 (Fla. 4th DCA 2001). In engaging in the required five-step analysis, the hearing officer must make findings reflecting a “detailed evaluation of the criteria and evidence relating the evidence to his conclusions.” Sapp, 801 So.2d at 215. And, where the order does not contain sufficient findings to permit the appellate court to discern that there has been a proper application of the five-step analysis, the order is subject to reversal and remand for further consideration. Axilrod, 799 So.2d at 1110; see also Snyder v. Fla. Dep’t of Children & Family Dist. V, Pinellas Unit: 89262, 705 So.2d 1067, 1068 (Fla. 1st DCA 1998). Such is the posture of the instant case, and we must reverse and remand for further findings.

The applicant, Lisa Boland, raises a number of issues on appeal, all of which are directed to the sufficiency of the required five-step analysis engaged in, and findings made, by the hearing officer. See, e.g., Axilrod, 799 So.2d at 1107-08 (describing five-step analysis and burdens of proof). The five-step analysis requires that the hearing officer ask the following five questions:

1. Is the claimant presently employed?
2. Is the claimant’s impairment severe?
3. Does the claimant’s impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work within the economy?

Id. at 1107; 20 C.F.R. § 416.920. “An affirmative answer to any of the questions leads to the next question, or, in the case of steps three and five, to a finding of disability. A negative answer to any questions other than to step three leads to the finding of not disabled.” Axilrod, 799 So.2d at 1107 (citing McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986), and 20 C.F.R. § 416.920(a)-(f)). If question three is answered in the negative, this does not end the inquiry and the hearing officer must still go on to consider questions four and five. This is so because “individuals who have a severe impairment that does not meet the criteria of the listings for mental disorders may still not have the ‘residential functional capacity’ to engage in substantial gainful work activity” and thus may be “disabled.” Mazzoni v. State, Dep’t of Health & Rehabilitative Servs., 686 So.2d 743, 746 (Fla. 2d DCA 1997).

More specifically, Boland asserts that (1) the step three analysis is flawed as the hearing officer failed to make sufficiently detailed findings to support the conclusion that Boland’s impairments do not “meet or equal” one of the specific impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (2) in conducting the step four analysis, the hearing officer failed to evaluate whether Boland’s previous job qualified as “past relevant work” and to evaluate and make the necessary findings concerning her residual functional capacity to return to her “past relevant work”; and (3) the analysis and findings concerning step five are insufficient as the hearing officer failed to identify the type of “other” work Boland could perform. We agree that the analysis, as reflected in the findings made by the hearing officer in the areas mentioned above, was insufficient to an extent that appellate review has been frustrated, and we must reverse and remand for further proceedings.

On remand, the hearing officer is reminded that while he “need not necessarily accept a treating physician’s conclu-sory statement that a claimant is totally disabled, a substantially uncontested opinion of a treating physician should not be overlooked.” Mazzoni, 686 So.2d at 746 (citing Fricker v. Dep’t of Health & Rehabilitative Servs., 606 So.2d 446 (Fla. 1st DCA 1992)); see also Snyder, 705 So.2d at 1069 (applying controlling federal law holding that agency must give considerable weight to opinion of treating physician in considering application for Medicaid benefits under Florida’s Medically Needy Program). Further, it appears the hearing officer rejected the opinion of Boland’s treating physician at least in part because the report failed to reflect or indicate the physician was aware of the relevant “disability” definitions and regulations. If, however, this ambiguity or deficiency was of concern to the hearing officer, then it was incumbent upon him to seek additional clarification and evidence on the matter. See 20 C.F.R. § 416.912(d)-(f) (stating, in part, that the Social Security Administration or State agency making the “disability” determination will “seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity ... [or] the report does not contain all the necessary information’’); Fla. Admin. Code R. 65 — 2.057(11)—(12) (providing that hearing officer “shall insure that all relevant issues are considered” and “shall request, receive and make part of the record information determined necessary to decide the issues being raised”).

Accordingly, we reverse the order appealed and remand the matter to the hearing officer for further consideration and the required “detailed evaluation of the criteria and evidence relating the evidence to his conclusions.” Sapp, 801 So.2d at 215.

Reversed and Remanded.

STONE and TAYLOR,. JJ., concur.

      . Any issues raised by Boland and not specifically addressed in this opinion were either found to be without merit or moot in light of our conclusion that remand for further proceedings and detailed findings of fact is necessary.