author: SILBERMAN, Judge. KELLY, Judge,

text:
    P.B.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5368.
    District Court of Appeal of Florida, Second District.
    April 27, 2007.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

P.B.P. appeals a juvenile probation order in which the trial court found that he committed the offenses of battery on a law enforcement officer, obstructing or opposing an officer with violence, and obstructing or opposing an officer without violence. He contends that the trial court erred by denying his motion for judgment of dismissal, arguing that the police officers were not engaged in the lawful performance of their duties at the time of the events giving rise to the charges. We affirm.

A motion for judgment of dismissal in a juvenile case tests the legal sufficiency of the evidence presented by the State. R.J.K. v. State, 928 So.2d 499, 502 (Fla. 2d DCA 2006). In considering such a motion, the evidence and all reasonable inferences that may be drawn from the evidence must be viewed in the light most favorable to the State. Id.; E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). The motion should be denied if a rational trier of fact could find that the elements of the offense were proven beyond a reasonable doubt. R.J.K., 928 So.2d at 502; E.A.B., 851 So.2d at 310. If the evidence is insufficient to establish a prima facie case for the charged crime, then dismissal is proper. E.A.B., 851 So.2d at 310. As to whether an officer is engaged in the lawful performance of a legal duty, if the facts and inferences that may be drawn from the facts are in dispute, the issue is for the trier of fact. Williams v. State, 511 So.2d 740, 742 (Fla. 5th DCA 1987). We review the trial court’s denial of a motion for judgment of dismissal de novo. E.A.B., 851 So.2d at 310.

The facts developed at the adjudicatory hearing, viewed in the light most favorable to the State, are as follows. At about 3:00 a.m. on May 18, 2003, the Tampa Police Department received an anonymous call complaining about juveniles running through the backyards of homes on Marissa Ridge Place in Tampa. Officers Per-rone and Larose responded, and Officer Bruce arrived as backup. All three were in full uniform.

Upon arriving at the scene and exiting the car, Officer Larose thought he heard voices coming from behind one of the houses. Although it is not entirely clear from the record, it appears the noises Officer Larose heard came from behind houses located across the street from the house from which the disturbance call had originated.

In the meantime, Officer Perrone approached the back of the house from which the disturbance call had originated to see if he could determine if juveniles were running through the backyard. Notably, the backyards in the area were open spaces, with no fences. Officer Perrone walked south and stood between a house that was one house south of the address to which the officers had responded and P.B.P.’s house. Thus, P.B.P.’s house was two houses south of the address to which the officers had responded. Officer Bruce arrived and joined Officer Perrone at this location. Both Officers Perrone and Bruce saw that a screen had been removed from a window on the second story of P.B.P.’s house and that the screen was “laying on the side of the window.” The house was completely dark inside. Officer Perrone pointed his flashlight and noticed “someone peeping through the window” that was on the northwest corner of the house. The person “quickly tried to hide.” He then pointed his flashlight toward the living room/kitchen area of the house, where it was dark, and observed someone hide under the countertop.

Officer Perrone told Officer Bruce to remain in place while Officer Perrone tried to make contact at the front door. Officer Perrone went to the front door of P.B.P.’s house and knocked. After three or four minutes, P.B.P. came to the door. Officer Perrone told P.B.P. what he had observed regarding the screen and people hiding in the house and asked if P.B.P.’s parents were home. P.B.P. said that his mother was in Los Angeles. When Officer Per-rone asked if P.B.P. could produce identification to prove that he lived at the house, P.B.P. said he would go and get identification. He then shut the door.

Officer Larose, who was across the street, testified that he observed Officer Perrone speaking with P.B.P. P.B.P. then went inside the house and shut the door as Officer Larose walked across the street to Officer Perrone’s location. Officers Per-rone and Larose testified that seconds after P.B.P. reentered the house, they heard Officer Bruce giving loud voice commands, and they went to the back of the house.

Officer Bruce, who was still in the grassy area to the rear of P.B.P.’s house, observed P.B.P. go to the rear sliding doors on the west side of the house. Officer Bruce stood about ten to twenty-five feet away. P.B.P. called out and told Officer Bruce “in rather colorful language, to get out of his yard and out of his residence.” Officer Bruce approached P.B.P. and identified himself. At that point, P.B.P. was standing just inside the door while Officer Bruce was about three feet away. Officer Bruce asked P.B.P. to “please identify himself.” P.B.P. refused and told Officer Bruce to go to the front of the house and that he would then identify himself.

Officer Bruce stated that he asked P.B.P. for identification because he did not know if P.B.P. resided in the house and because he had observed a number of beer bottles in the area. When Officer Bruce again asked P.B.P. for his name and age, P.B.P. refused to give his name but said that he was seventeen years old and that his parents were away. He then reached out and hit Officer Bruce on the left shoulder. Officer Bruce told P.B.P. not to touch him and that “it was battery on a law enforcement officer.” P.B.P. then made another motion towards Officer Bruce with his arm, which Officer Bruce blocked.

When Officer Perrone went to the rear area, he saw P.B.P. get “very close to Officer Bruce’s face, screaming at him very verbally, that he wasn’t getting him shit and told him to get the fuck off his property.” When Officer Perrone attempted to take P.B.P. into custody for battery on a law enforcement officer, P.B.P. began punching and kicking at the three officers. P.B.P. broke free and began running, then fell down. He got up and started running again, but the officers were able to arrest him.

At the close of the State’s case, P.B.P. argued his motion for judgment of dismissal. The trial court denied the motion, finding that the State had presented a prima facie case and stating as follows:

On the central issue of the lawful performance of duty on this particular evening, indeed, officers had been called by an anonymous complaint at 3:00 in the morning to an area where there was a complaint of juveniles running through the back area and as counsel’s just pointed out, the evidence indicates and indeed they were there acting reasonably walking through the area. They came to a home only two doors from apparently the area of the initial complaint according to the evidence of Officer Bruce and I believe Officer Perrone, at which time their suspicions and concerns were aroused further by seeing the screen near a window of a door and what appeared to be as they were flashing their lights around some, at least, momentarily alarming activities at the house and one staring out at them. They didn’t act unreasonably, they knocked on the door and were waiting patiently at the front of the door when the evidence indicates that the defendant was exiting the back of the door where he encountered an officer who once again asked for ID. It was at that point that the evidence indicates for the purpose of the State making its ease that the defendant struck an officer, an officer he knew to be an officer, who this Court will find at that point for the purposes of this motion, was in the lawful performance of his duty. At that moment he struck that officer in lawful performance of his duty the circumstances completely change because now they indeed began a process of trying to take him into custody. This led to all of the later matters which included the evidence that the State has shown at this point for the purpose of the motion was a resisting with violence and resisting without violence. So the motion will be denied. Those are the findings of the Court.

P.B.P. then testified and disputed the officers’ testimony. He acknowledged that when he first spoke to officers at the back sliding glass door, one officer said the police were there because “he believed that there was a burglary.” Two neighbors testified that they were awakened by P.B.P. running through their backyard screaming and calling for help as the police officers chased him. They testified that they had not heard any earlier disturbances that night. They described P.B.P.’s demeanor and appearance, including that he looked terrified and that his eyes were very red. The State called Officer Perrone as a rebuttal witness. He testified that on the night in question, P.B.P. appeared to be intoxicated. His speech was slurred, he had bloodshot eyes, he smelled of alcohol, and he was very belligerent in his tone.

At the close of all of the evidence, P.B.P. renewed his prior motions, and the trial court stood by its rulings. In closing argument, P.B.P. asserted that the officers entered his property without consent and without any reasonable basis. He contended that the officers trespassed on his property, that the State did not establish that the officers were engaged in the lawful execution of a legal duty, and that the State did not establish that exigent circumstances existed.

The trial court again concluded that the officers were engaged in the lawful performance of their duties and found that P.B.P. had committed the charged offenses. The court stated its findings as follows:

As has been established beyond a reasonable doubt by the evidence, we’re talking about approximately 3:00 in the morning and the report that they received, as the evidence indicated from an anonymous source, was that there were juveniles running through the backyards and so they responded. And in fact they began walking in the yard areas— the yard areas in the back as described to the Court without fences back there. They’re walking between yards and in fact now they come to a home and they’ve got their flashlights and they come to the home and their attention is attracted by a screen down on a home near a window. They proceeded at that point with Officer Bruce in the back of the home area with Officer Perrone in the front. Officer Perrone knocked on the door and that’s where he encountered for the first time the defendant in this case, who came to the door of what is his home and he was — and the Court will find that the officers had noticed something strange before that because as was testified they had seen someone peering out the window. They had seen someone, apparently through their observation, trying to hide under a counter in the home. All of this taken together with the screen and the report of juveniles in the back as they have described caused them to have a very reasonable suspicion and to be cautious and to go about their lawful performance of duties. And they knocked on the door and someone came there and — and they spoke to them. And it was described that the parent was in Los Angeles but — and then finally it was described that he was in fact seventeen, a juvenile, and the officer asked for identification and the individual closed the door and said he’d go get the identification. Now, comes the encounter in the backyard and this is pivotal to the case. At that time there is another officer in the back. Now the defendant goes to the back. He opens and he encounters Officer Bruce. The Court is going to find and the evidence establishes beyond a reasonable doubt at that point there were some angry words at which time Officer Bruce is essentially asking the same question as the Officer at the front, “Give me some identification, we’ve got some strange circumstances.” And again there is some spirited discussion obviously with [P.B.P.], the defendant, ordering them off his property as they stood near the back door. It’s at that point that [P.B.P.] reached out with his right hand and struck the officer in this case, Officer Bruce — make sure we’re correct, and struck the officer in his left shoulder. Now, in this point in time the officer had identified himself as he testified, he was in full uniform. He was asking the defendant to identify himself when he refused to do so. In fact, he told the officer at that point if he’d go to the front with the other officers he’d get some ID, but again this spirited conversation and exchange as it’s described, but it culminated with [P.B.P.] putting hands on, striking against the will of the law enforcement officer who was in the lawful — engaged in lawful performance of his duty at the time.

The trial court then discussed the officers’ efforts to take P.B.P. into custody and ultimately found that P.B.P. had committed the charged offenses. After announcing its detailed findings, the court withheld adjudication and placed P.B.P. on probation.

On appeal, P.B.P. argues that the trial court should have dismissed the charges because the police officers were not engaged in the lawful execution of their duties and, therefore, had no lawful basis to enter his backyard. We disagree.

A reasonable expectation of privacy exists in the backyard of a residence that is not generally viewed by the public, but that expectation gives way in an emergency situation. State v. Duda, 437 So.2d 794, 795 (Fla. 2d DCA 1983). In Duda, the police responded to a radio bulletin concerning a domestic disturbance or a possible fight, and an officer went to the rear of the house because he heard shouting. The court noted that the existence of a potential emergency situation justified the officers’ presence in the backyard. Id. at 795-96. The court stated that the “determination of the existence of an emergency is to be measured by the reasonableness of [the officers’] belief at the time, not the existence of an emergency in fact.” Id. at 795. In Zeigler v. State, 402 So.2d 365, 371 (Fla.1981), the supreme court stated as follows:

The reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances. The right of police to enter and investigate an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law.

In A.E.R. v. State, 464 So.2d 152 (Fla. 2d DCA 1985), the court considered whether, in response to a neighborhood trespassing complaint, police officers could lawfully enter the side yard of a home without a warrant. The officers first went to the front door in response to the complaint. They observed “juveniles jumping up and running toward the back door,” which the court stated gave “rise to the inference that the juveniles were eluding the officers and perhaps adding credence to the complaint.” Id. at 154. The court acknowledged that there is a “reasonable expectation from unreasonable governmental intrusion” that exists for that part of a backyard that is blocked from view from the front yard or the street. Id. at 153. However, based on exigent circumstances, the court concluded that the officers were justified in entering the side yard. Id. at 154.

In In re J.B., 621 So.2d 489 (Fla. 4th DCA 1993), an officer responded to a disconnected 911 call. Upon arriving at the home from which the call originated, he rang the doorbell. J.B. responded and indicated that he had no knowledge of anyone calling 911 and that he and friends were “messing around.” Id. at 490. The officer asked if J.B.’s mother was home, and J.B. said she was not. J.B. “then told the officer to get off of his property.” Id. The officer remained concerned because he had observed that a screen was off one of the front windows and that trash was all over the front room of the house. He tried to enter through the screen door, but it was locked. The officer asked J.B. to open the door, but J.B. refused, slammed the door shut, and locked it. The officer ran to the back of the house and saw J.B. pick up a stick. The officer then entered the sliding glass doors, and J.B. approached the officer with the stick. Eventually, J.B. was arrested and charged with resisting arrest and assault on a law enforcement officer. Id.

The court in J.B. rejected J.B.’s claim that the officer was not in the lawful execution of a legal duty because the officer attempted to break into the home when J.B. closed the door. The court noted that the police had the duty and obligation to investigate the 911 call and stated that under the circumstances, it “cannot second guess the officer’s concern” that someone might have needed aid or that, given the missing screen and the condition of the living room, a burglary may have just taken place. Id. at 490-91. The court concluded that “[t]he reasonableness of the officer’s response to an emergency situation is a question of fact for the trial court which we should not disturb absent a clear error.” Id. at 491.

The circumstances here compel a similar conclusion and support the trial court’s denial of P.B.P.’s motion to dismiss. At 3:00 a.m., the police officers responded to a disturbance call involving juveniles running through backyards. As the officers tried to determine whether juveniles were in the open backyard area, they saw suspicious circumstances at P.B.P.’s house, including an open window with the screen to the side, someone “peeping through” a window then trying to hide, and someone trying to hide under a counter. At this point, the officers were standing between two homes, and it is unclear whether they had actually entered P.B.P.’s yard.

Officer Perrone went to the front door while Officer Bruce remained in the rear area between P.B.P.’s house and a neighbor’s house. Although P.B.P. responded to the front door after a few minutes delay, he then went back into the house and to the rear door, where he called out to Officer Bruce using “colorful language.” The officers still did not know P.B.P.’s identity, whether he had been involved in the earlier disturbance, or whether he was trespassing in or burglarizing the house. Officer Bruce approached P.B.P. at the rear only after P.B.P. called out. Neither Officer Bruce nor any of the officers tried to enter the house. Instead, when they tried to ascertain P.B.P.’s identity to determine whether he actually lived in the house, P.B.P. struck Officer Bruce. Under the totality of these circumstances, we conclude that the trial court did not err in determining that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal.

The dissent argues that the officers did not have a legally sufficient basis, such as exigent circumstances, to enter or remain in the backyard areas, including P.B.P.’s backyard. However, as the court observed in Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003),

[tjhere is no catalog of all of the exigencies that may allow a warrantless search of a residence primarily because “[t]he reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances.” Nevertheless, precedent provides us the necessary guidance and we derive therefrom that exigencies or emergencies related to the safety of persons or property may support a warrantless entry into a home. Hence, the police may enter a home to investigate a suspected burglary or to check on the safety of its residents, as those circumstances are generally considered exigent circumstances.

(Citations omitted.) The court added that “[a]n entry based on exigent circumstances must be limited in scope to its purpose” and that the police cannot continue a search once they determine that no exigency exists. Id.

The dissent also discusses several cases, the outcomes of which turn on the specific facts and circumstances of those cases. For example, in United States v. McClain, 444 F.3d 556 (6th Cir.2005), the issue involved entry into and a search of a house. The police responded to a phone call from a neighbor who reported seeing a light in a house that had been vacant. An officer saw that lights were on, and he performed a complete inspection of the outside of the house. The officer found no open or unlocked windows, gates, or doors, except he noted that the front door was slightly ajar. The officer entered the house even though there were no signs of forced entry, vandalism, or any kind of illegal activity. Id. at 559-60. In fact, both officers who responded to the call testified that there was no emergency that necessitated their entry into the home and that there were no signs of any criminal activity. Id. at 563.

The court concluded that the police were not justified in entering and searching the home, commenting that something more was required, “namely, the existence outside the searched premises of some physical signs of a burglary or some direct evidence of a home invasion.” Id. at 563. In discussing the basis for a warrantless entry into a residence without a warrant, the court stated that probable cause is required, “defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” Id. at 562 (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993)). In this context, “probable cause ‘requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’ ” Id. at 563 (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). While mere speculation that a crime could be occurring is not enough, if the police have an “ ‘objectively reasonable basis for their belief that a crime is being committed,” a warrantless search is justified. Id. (quoting United States v. Ukomadu, 236 F.3d 333, 337 (6th Cir.2001)).

United States v. Brown, 449 F.3d 741 (6th Cir.2006), also involved entry into a residence. There, an officer responded to a call from a security service after a residential burglar alarm sounded repeatedly. The officer found that the front door to the residence was locked, but the exterior basement door was ajar approximately twelve inches. There was no car in the driveway, and the officer did not find any broken or pried-open doors. The officer entered the residence because he thought a burglary might be in progress. Id. at 746. However, the officer did not know if the defendant previously had problems with his security system or false alarms. Id. The court stated that under the totality of the circumstances, the officer had probable cause to believe a burglary was in progress, justifying the warrantless entry. Id. at 750. The court noted that “the scope of the intrusion must be circumscribed by the exigencies that justified the warrantless search.” Id. at 745.

Here, the totality of the circumstances supports the trial court’s determination that the officers were engaged in the lawful performance of their duties and the court’s denial of P.B.P.’s motion to dismiss. The officers were in an open backyard area investigating a disturbance call when they observed circumstances that justified their contact with P.B.P. at the front door and then at the rear door. Notably, this ease involves a limited entry into P.B.P.’s open backyard area and not an entry into or a search of the residence, a search of any fenced-in area of the property, or a search of P.B.P. The officers’ entry was appropriately limited based on the specific circumstances confronting them.

Finally, the dissent suggests that once the officers observed no one running through the backyards, they should have ended their investigation and left. We cannot agree. The officers responded to a disturbance call, and when they observed suspicious circumstances, they investigated using minimally intrusive means that were commensurate with the situation. The question of whether the officers were engaged in the lawful performance of their duties was for the trial court to determine as the trier of fact, based on the evidence. See Williams, 511 So.2d at 742. Because the trial court did not err in finding that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal, we affirm.

Affirmed.

VILLANTI, J., Concurs.

KELLY, J., Concurs in part, dissents in part.

KELLY, Judge,

Concurring in part, dissenting in part.

I cannot join the majority in affirming P.B.P.’s conviction for battery on a law enforcement officer because the State failed to prove an essential element of that offense — that Officer Bruce was engaged in the lawful performance of his legal duty when the battery occurred. The trial court applied the wrong legal standard for determining the lawfulness of the officers’ actions, and the majority follows suit by approving Officer Bruce’s warrantless entry concluding it was “reasonable” but never finding that it was supported by exigent circumstances, the necessary prerequisite to a conclusion that the entry was reasonable under the Fourth Amendment.

In Tillman v. State, 934 So.2d 1263, 1271 (Fla.2006), the supreme court explained that in evaluating the sufficiency of the evidence to reach the jury on the element of “lawful execution,” “courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Because the battery on Officer Bruce occurred during a warrantless entry into the backyard of P.B.P.’s home, the sufficiency of the evidence on the lawful execution element of battery on a law enforcement officer must be evaluated by applying Fourth Amendment law governing warrantless entry by police into a home. See id.

Under the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Brigham City v. Stuart, — U.S.-, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Because, however, “the ultimate touchstone” of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. Id. at 1947. The warrant requirement will give way when the “ ‘exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)).

“The circumstances in which the Supreme Court has applied the exigent circumstances exception are ‘few in number and carefully delineated.’ ” Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (quoting United States v. U.S. District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). The Court has held that law enforcement officers may make a warrant-less entry onto private property to fight a fire and investigate its cause, to pursue a fleeing felon, to prevent the destruction of evidence, or “to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Brigham City, 126 S.Ct. at 1947; see also Riggs, 918 So.2d at 279 (cataloging the circumstances in which the Supreme Court has applied the exigent circumstances exception).

The trial court appears to have concluded that the officers’ intrusion was lawful because they were investigating an anonymous complaint regarding juveniles running through backyards in the neighborhood, they performed that investigation reasonably, and while doing so they encountered circumstances that “caused them to have a very reasonable suspicion and to be cautious and to go about their lawful performance of duties.” The State apparently recognizes that this reasoning does not justify the officers’ warrantless entry, because on appeal the State argues for the first time that the entry was justified by exigent circumstances; specifically, that “the officers had at least reasonable suspicion, if not probable cause, to believe that a burglary was being committed in [P.B.P.’s] residence.... Under these circumstances, it was reasonable for an officer to enter and remain in the backyard until [P.B.P.’s] identity could be determined.”

Although the Supreme Court has not addressed the issue, federal circuit courts that have considered the question have upheld warrantless searches conducted during burglary investigations under the rubric of exigent circumstances. See United States v. Johnson, 9 F.3d 506, 509 (6th Cir.1993). Those courts have unanimously concluded that an officer may lawfully enter a residence without a warrant under the exigent circumstances exception when the officer reasonably believes a burglary is in progress. See United States v. McCullough, 457 F.3d 1150, 1164 (10th Cir.2006). Florida’s courts have reached the same conclusion. See, e.g., Zakrzewski v. State, 866 So.2d 688 (Fla.2003); Davis v. State, 834 So.2d 322 (Fla. 5th DCA 2003); State v. Mann, 440 So.2d 406, 408 (Fla. 4th DCA 1983).

The argument that the officers’ entry was justified as part of a burglary investigation is flawed in several respects, not the least of which is that it overlooks the fact that the officers’ initial entry into a constitutionally protected area had nothing to do with a suspected burglary of P.B.P.’s home. Initially, the officers entered the backyard of a home two houses north of P.B.P.’s home. They did so after being dispatched to that address to investigate a complaint of juveniles running through backyards. The officers did not happen upon the “suspicious circumstances” until after they entered the backyard of that house and began a house-to-house backyard search eventually reaching P.B.P.’s yard. However, the determination of whether a warrantless entry was lawful is based on what the officers knew at the time of entry. See Seibert v. State, 923 So.2d 460 (Fla.2006).

At the time of entry, the officers had no information beyond the fact that someone had called to report juveniles running through backyards. They were not investigating a possible burglary. The majority opinion’s citation to A.E.R., Duda, and J.B. suggests that the majority has concluded that the initial entry to investigate this complaint was an emergency that not only required an immediate entry into the backyard of the home where the call originated, but a house-to-house search of the neighbors’ backyards as well. The distinction between the facts in this case and the facts in the eases cited by the majority is self-evident.

In A.E.R., the officers were investigating a “neighborhood complaint” that juveniles had been “pool hopping.” 464 So.2d at 152. The officers did not arrive and start searching backyards to locate the offending juveniles. They went to the home where the complaint originated and spoke to the complaining party who pointed to A.E.R.’s house as the one where the juveniles lived. It was not until after the officers approached the front of that house and saw the juveniles’ apparent attempt to flee out the back door that the officers ran to the back. As they did so, one officer observed a juvenile carrying a marijuana plant that the officers later confiscated.

A.E.R. sought to have the plant suppressed arguing the officer had no right to be in the side yard, and thus the seizure of the plant could not be sustained under the plain view doctrine. Id. This court framed the issue as whether “pursuant to a neighborhood trespassing complaint, officers, without a warrant, may lawfully enter the side yard of appellant’s home in an effort to question suspected misdemeanants when the officers believe, after observing the suspects inside the home, that they are eluding the officers.” Id. at 153. We first acknowledged the principle that officers investigating a neighborhood complaint may investigate by knocking on an individual’s front door, where the individual has no expectation of privacy. This court then concluded that the juveniles’ apparent attempt to flee out the back door, which the officers witnessed from the front of the house, created exigent circumstances requiring “immediate action” on the part of the officers. Id. at 154.

In Duda, the officers were responding to a call regarding a domestic disturbance or a possible fight at a residence. 437 So.2d at 794. When they arrived they heard shouting coming from the rear of the home and the backyard. Recognizing that the police have a right to enter and investigate when they reasonably believe they are confronted with an emergency situation, this court specifically found that the officers were faced with a “potential emergency situation” and thus were justified in going immediately to where they believed the disturbance was taking place. Id. at 796.

In In re J.B., the officers were responding to a home that was the source of a 911 call. 621 So.2d at 489. When the call came in, the caller hung up without speaking or requesting assistance. The system dispatched an officer to the home to investigate the call. In finding that the officers acted lawfully in trying to enter the home, the court analogized a 911 call to “screams for help.” Id. at 491. The court also discussed the fact that the 911 system is used to report crimes and injuries requiring immediate assistance and that “a disconnect” could happen for “a myriad” of reasons and did not mean the emergency was over. Given that a 911 call is “a cry to the authorities for help,” the court concluded that an investigating officer has a duty to investigate until he is satisfied no emergency exists. Id.

Although the cases cited by the majority are clearly distinguishable, even assuming arguendo that the officers’ initial entry to investigate the disturbance was justified, the officers were not entitled to remain behind the homes once they determined that no one was back there because any search conducted under the auspices of exigent circumstances must be “strictly circumscribed by the exigencies which justify its initiation.” Mincey, 437 U.S. at 393, 98 S.Ct. 2408 (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Riggs v. State, 918 So.2d 274, 279 (Fla.2005) (explaining that when a warrantless search is based on exigent circumstances, an officer must cease the search once he determines that no emergency exists). In other words, once the officers realized that no one was running through backyards, they no longer had a reason to remain behind the houses, much less conduct a yard-to-yard search.

The reasonableness of this course of conduct — leaving after determining that no one was behind the homes — is evidenced by the actions of Officer Larose. Officer Larose testified that he first went into the backyard of a home across the street from P.B.P.’s home because he thought he heard voices coming from that area. Using his flashlight, he was able to see several backyards from his initial vantage point. Seeing no one behind those houses, he walked back out to the street. In contrast, neither Officer Perrone nor Officer Bruce offered any justification for their decision to remain behind the homes on P.B.P.’s side of the street although, like Officer Larose, they saw no one behind the homes. Thus, even if they were justified in going immediately into the backyard of the home where the complaint originated, their continued presence behind the homes was unauthorized, and the “suspicious circumstances” they observed as they approached or entered P.B.P.’s yard cannot provide an after-the-fact justification for their actions up to that point. See, e.g., Olivera v. State, 315 So.2d 487 (Fla. 2d DCA 1975) (explaining that observations made by an officer from a location where he had no right to be are tainted and cannot be used to support the State’s position that the officer had probable cause to search or arrest); cf. Davis, 834 So.2d at 327 (explaining that any search conducted after the exigency no longer exists is illegal and any contraband observed pursuant to the illegal search is inadmissible).

Even taking the “suspicious circumstances” into account, to justify a warrant-less entry based on the belief that a burglary is in progress, the police must have probable cause to believe that a burglary is occurring, not simply a mere suspicion. See, e.g., McCullough, 457 F.3d at 1164; United States v. Brown, 449 F.3d 741, 748 (6th Cir.2006); United States v. McClain, 444 F.3d 556 (6th Cir.2005); United States v. Johnson, 9 F.3d at 509; Guin v. City of Riviera Beach, 388 So.2d 604, 606 (Fla. 4th DCA 1980). In this context,

[pjrobable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion. Under this “flexible, common-sense standard,” the establishment of probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. However, the “mere possibility” that a crime could be occurring within a home is not sufficient to justify a warrantless search; the police must have an objectively reasonable basis for their belief that a crime is being committed. Likewise, mere speculation that a crime could be occurring is insufficient to establish probable cause.

McClain, 444 F.3d at 562-63 (citations and some internal quotation marks omitted). The trial court made no determination that the officers had probable cause to believe that a burglary was in progress. While the majority alludes to the possibility of a burglary, it stops short of saying that the officers had probable cause to believe a burglary was in progress.

Nor would the record support that conclusion. The record shows that the officers were not responding to a reported burglary and that no alarm had been reported. They did not see any signs of forced entry such as a broken window or a door with pry marks — only a screen propped up next to a second floor window. They did not see any open doors, and when they knocked on the front door, the occupant answered the door and agreed to produce identification. While the trial court notes that the officers saw someone peering out a rear window and that someone tried to hide when the officers shined a light in through a rear window of the home, this hardly seems unusual considering it was three o’clock in the morning and the occupants had no idea the police were roaming through their backyard, nor any indication that police flashlights were the source of the light being shone into the house. In light of all these circumstances, I cannot conclude that the officers had anything more than a mere suspicion that a crime could be occurring. Compare McCullough, 457 F.3d at 1164 (noting that the security alarm at the residence had been triggered, the people at the residence were dirty, did not have any identification, were admittedly not the homeowners, did not know the name of the homeowners, were acting in a nervous manner, and one of them, who was observed leaving the residence, did not attempt to speak to the officer and appeared disoriented); Brown, 449 F.3d at 746 (noting that the officer had responded to a burglar alarm that had been triggered twice in a short period of time, he had gotten no response from inside the house, there was no car in the driveway, and the front door was secure but the back door, which had triggered the alarm, was ajar); Johnson, 9 F.3d at 507 (noting that the officers were responding to a call from a neighbor reporting a burglary in progress, that the neighbor reported seeing individuals crawl through a broken window in the home, that the door to the home was locked but a woman and a man were in the house, the man and the woman claimed to live there but could not open the door because they did not have a key, and they had no identification).

Moreover, even if the officers’ observations justified having Officer Bruce remain behind the houses to watch the back door while Officer Perrone went to P.B.P.’s front door, they certainly did not justify the actions Officer Bruce took when P.B.P. appeared at the back door. Officer Bruce testified that when P.B.P. opened the rear sliding glass door and saw him, P.B.P. told him to leave the property. Rather than simply maintaining his position, which the majority suggests may have been outside P.B.P.’s yard, Officer Bruce testified that he entered the yard, walked across the patio area and “went up to him, approached him, was at a bladed stance, he was standing inside of the door, sliding glass doors.” Officer Bruce repeatedly asked P.B.P. for identification, but P.B.P. refused to provide it at the back door. Instead, he told Officer Bruce to leave and meet him at the front door where the other officer was awaiting his return. When Officer Bruce refused to leave, P.B.P. pushed him.

Officer Bruce acknowledged that when he entered P.B.P.’s property and came into contact with P.B.P., he did not have permission to be on the property and he had not seen anything illegal occurring on the property. Although he did not explain why he had stayed behind when Officer Perrone went to the front door, he presumably did so to ensure that no one left through the back door of P.B.P.’s home. To accomplish this task, Officer Bruce did not need to come onto P.B.P.’s patio and stand three feet away from him. He could have remained where he had been standing when he first joined Officer Perrone behind the house. This would have placed him outside of P.B.P.’s backyard but still close enough to observe the back of the house. Because Officer Bruce entered a constitutionally protected area without a warrant and without exigent circumstances his entry was not “reasonable” under the Fourth Amendment. When the battery occurred he was not engaged in the “lawful performance” of his duties because his entry violated the Fourth Amendment. Accordingly, P.B.P. was entitled to a judgment of dismissal on the charge of battery on a law enforcement officer.

The charges of obstructing or opposing an officer with violence and without violence stem from what happened next, and as was the case with the battery, we must determine the lawfulness of the officers’ actions when these offenses occurred. See Tillman, 934 So.2d at 1273. Officer Per-rone, who had been waiting at the front door and had been joined by Officer La-rose, heard shouting and Officer Bruce loudly yelling commands. Officer Bruce testified that he used a “command voice” to tell P.B.P. not to touch him and that it was battery on a law enforcement officer. When Officer Perrone went to the back of the house he saw P.B.P. “very close to Officer Bruce’s face, screaming at him verbally, that he wasn’t getting him shit and told him to get the fuck off his property.” Officer Perrone did not see P.B.P. strike Officer Bruce, nor did he see P.B.P. “do anything illegal” up to the point that Officer Perrone approached P.B.P., “put hands on him” and “put him in an escort position” to “pull him out of the house.” At that point P.B.P. began to kick, throw punches, and push until he “broke loose” and ran away, ignoring commands to stop.

When Officer Perrone heard Officer Bruce shouting, P.B.P. had gone into the house and closed the door. Thus, Officer Perrone had no way to know where P.B.P. was at that moment. That uncertainty paired with hearing Officer Bruce loudly commanding someone not to touch him and stating that it was battery on a law enforcement officer was enough to make it reasonable for Officer Perrone to enter the backyard to ascertain whether Officer Bruce was in need of his assistance. See Brigham City, 126 S.Ct. at 1947 (“Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”). At this point, Officer Perrone was acting lawfully when he entered the backyard to investigate.

Thus, the question becomes whether Officer Perrone was acting lawfully when he grabbed P.B.P. and pulled him out of the house. Section 901.151(2), Florida Statutes (2004), which governs detentions, provides:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

This statute is consistent with the holding in Terry, 392 U.S. at 21, 88 S.Ct. 1868, which requires “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Given what he had heard and witnessed, it was reasonable for Officer Perrone to conclude that P.B.P. had, or was about to commit a felony, battery on a law enforcement officer. Accordingly, he was acting lawfully when he detained P.B.P. Because it was this lawful action by Officer Perrone that precipitated the events leading to the charges of obstructing or opposing an officer with and without violence, I concur with the majority that P.B.P. was not entitled to a judgment of dismissal on those charges.

      . The statutes under which P.B.P. was charged use slightly different terms. Section 784.07(2), Florida Statutes (2003), refers to the "lawful performance of his or her duties.” Sections 843.01 and 843.02, Florida Statutes (2003), refer to the “lawful execution of any legal duty.”

      . P.B.P. has argued that he was entitled to a judgment of dismissal as to each offense with which he was charged because the State failed to prove that the officers were engaged "in the lawful performance” of their duties, or "in the lawful execution of any legal duty” at the time the offenses occurred. See §§ 784.07, 843.01, 843.02, Fla. Stat. (2003). The supreme court has stated that although worded in a somewhat different way, these elements are "functionally identical.” Tillman v. State, 934 So.2d 1263, 1266 n. 2 (Fla.2006).

      . As the majority correctly acknowledges, the zone of protection under the Fourth Amendment extends to the curtilage of a home, including the backyard. See State v. Rickard, 420 So.2d 303, 306 (Fla.1982) (noting that courts will not allow a warrantless search or seizure in a constitutionally protected area such as one's backyard); Glass v. State, 736 So.2d 788 (Fla. 2d DCA 1999) (stating that officers were not justified in entering a backyard of a residence without consent, a warrant, or exigent circumstances).

      . In fairness to the trial court, the State offered no justification for the officers’ entry when this issue was argued in the trial court. In fairness to the State, it probably concluded justification was not an important issue because at that time the law in this district was such that the lawfulness of the officers' actions was immaterial except with respect to the charge of opposing an officer without violence. See Tillman, 934 So.2d at 1263 (rejecting the view held by this court and others that section 776.051(1), Florida Statutes (2003), which prohibits the use of force to resist an arrest notwithstanding the illegality of the officer’s actions, extends to other police-citizen encounters).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carl Douglas ROBBINS and Deborah P. Robbins, Appellants, v. Charles McGRATH, Benjamin Bates, and Santa Rosa County, Appellees.
    Nos. 1D06-3444, 1D06-4151.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Stacy D. Blank, of Holland & Knight LLP, Tampa, for Appellants.

      Lisa S. Minshew, of Lisa S. Minshew, P. A., Pensacola, for Appellees.
   PER CURIAM.

Carl Douglas Robbins and Deborah P. Robbins appeal an award of attorney’s fees and costs to appellees Charles McGrath and Benjamin Bates, totaling $51,685.11. McGrath and Bates, plaintiffs below, filed suit against the Robbins, alleging that the Robbins blocked access to McGrath and Bates’ property by constructing across an unpaved road which transgressed the Robbins’ property. McGrath and Bates requested damages pursuant to count one of the complaint, trespass on the case, as well as injunctive relief. The complaint also contained a request for attorney’s fees pursuant to section 57.105, Florida Statutes. The original complaint was dismissed for failure to join an indispensable party, Santa Rosa County, the alleged owner of the unpaved road. McGrath and Bates filed an amended complaint, adding Santa Rosa County as a defendant, and again requesting attorney’s fees pursuant to section 57.105.

Immediately before trial, McGrath and Bates filed a trial brief and a memorandum of law, and for the first time requested attorney’s fees pursuant to the wrongful act doctrine. After a bench trial, the court found in favor of McGrath and Bates, and awarded injunctive relief, as well as damages. The trial court also awarded attorney’s fees based on the wrongful act doctrine. After a hearing regarding attorney’s fees, the trial court awarded $38,808.50 in attorney’s fees, including paralegal fees, $11,629.61 in costs, and $1,247.00 to reimburse McGrath and Bates for their expert who testified at the attorney’s fees hearing.

The Robbins argue on appeal that the trial court erred in awarding attorney’s fees based on the wrongful act doctrine because entitlement to the fees was not specifically pled. We agree. The wrongful act doctrine is an exception to the general rule that attorney’s fees are not recoverable as an element of damages in the absence of statutory authority or a contractual agreement:

[W]here the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.

Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983); see also City of Tallahassee v. Blankenship & Lee, 736 So.2d 29, 30 (Fla. 1st DCA 1999). Attorney’s fees awarded pursuant to the wrongful act doctrine are special damages, and therefore, must be specifically pled. See Winselmann v. Reynolds, 690 So.2d 1325, 1328 (Fla. 3d DCA 1997); Fla. R. Civ. P. 1.120(g).

In this case, McGrath and Bates never pled entitlement to attorney’s fees based on the wrongful act doctrine. See Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261 (Fla.1998) (reading the holding in Stockman v. Downs, 573 So.2d 835 (Fla.1991), that a claim for attorney’s fees must be pled, to mean that “the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver”). Accordingly, we reverse the award of attorney’s fees in this case.

The Robbins also argue that because attorney’s fees were improperly awarded, the trial court erred by awarding reimbursement for McGrath and Bates’ expert, who testified during the attorney’s fees hearing. Because we reverse the award of attorney’s fees in this case, we also reverse the reimbursement of fees for the expert witness.

Finally, the Robbins argue the costs awarded by the trial court included $2,985.01 in nontaxable costs, including charges for undifferentiated office photocopying ($1,553.54), faxes ($138.00), postage ($34.97), courier deliveries ($171.50), travel expenses ($1,052.00), and Westlaw research ($35.00). We agree that the trial court abused its discretion in awarding costs for these expenses, and reduce the costs award by $2,985.01. Postage, fax transmissions, delivery service, and computer research are office expenses or overhead that should not be taxed as costs. State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998). Additionally, attorney travel time and expenses should not be taxed as costs pursuant to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612 (Fla.2005) (amending the Uniform Guidelines effective January 1, 2006). Finally, although copying expenses are properly taxed under the Uniform Guidelines where the costs are for copies of documents filed in court which are reasonably necessary to assist the court in reaching a conclusion, or for copies obtained in discovery, there is no evidence in the record to indicate the purpose for the copies in this case. See Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So.2d 513, 518 (Fla. 3d DCA 2006) (providing that pursuant to the pre-2006 version of the Uniform Guidelines, where there is no indication whether the copies were filed in the court file or used in trial, it is error for the trial court to award costs for the copies).

Therefore, we reverse the award of attorney’s fees in the amount of $38,808.50, reverse the expert witness fee in the amount of $1,247.00, and reduce the costs of $11,629.61 by $2,985.01. Consequently, McGrath and Bates are left with an award of costs in the amount of $8,644.60.

AFFIRMED in part; REVERSED in part.

PADOVANO, POLSTON and HAWKES, JJ., concur.

      . The complaint was amended a second time to add factual allegations.

      . Because we agree that the pleadings in this case were insufficient for an award of attorney’s fees based on the wrongful act doctrine, we do not reach the Robbins’ alternative argument on appeal, that McGrath and Bates failed to identify any attorney’s fees incurred as a result of Santa Rosa County’s presence in the lawsuit.


author: ROBERTS, J.

text:
    Charles KEMP, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4279.
    District Court of Appeal of Florida, First District.
    April 30, 2007.

      Charles Kemp, pro se, Appellant.
    Bill McCollum, Attorney General, and Chris Korn, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

Petitioner Charles Kemp, a state prisoner, seeks a writ of certiorari overturning the circuit court’s denial of a petition for writ of mandamus and the imposition of a lien on his prisoner account under section 57.085, Florida Statutes (2006). For the reasons stated below, his petition is denied.

On January 19, 2006, petitioner filed a petition for writ of mandamus challenging the Department of Corrections’ (Department) forfeiture of 3133 days of gain time as a consequence of the revocation of petitioner’s conditional release. Petitioner contends that only 2202 days of gain time should have been forfeited and that he should have received a credit of 931 days. The circuit court denied the petition for writ of mandamus on August 2, 2006.

On the same date he filed his petition for writ of mandamus, petitioner also filed a “Motion for Order of Indigency for Purposes of Appeal.” In this motion, he requested that he be allowed to proceed “pursuant to section 57.081, Fla. Stat. under the authority of Schmidt v. Crusoe, [878 So.2d 361 (Fla.2003) ].” On January 24, 2006, the clerk of the circuit court responded to petitioner with a “Clerk’s Response to Action Filed Without Prepayment of Filing Fee.” In that response, the clerk recited that petitioner “has requested to proceed in this action without prepayment of court costs and fees pursuant to section 57.085, Florida Statutes,” and required petitioner to provide a “Prisoner Affidavit of Indigency.” Petitioner filed the required affidavit on March 9, 2006. On March 23, 2006, the clerk filed a Certificate of Indigence “pursuant to 57.085, Florida Statutes.” Based on this certificate, the circuit court found petitioner to be indigent under section 57.085 and ordered the Department to place a lien on petitioner’s account in the amount of $280.00.

On August 15, 2006, petitioner filed a petition for writ of certiorari challenging the circuit court’s denial of his petition for writ of mandamus. In that petition, he seeks to quash the order to impose the lien and the reimbursement of funds removed from his trust account pursuant to the lien. The challenge to computation of his gain time was abandoned.

Prior to the 1996 enactment of section 57.085, prisoners asserting indigency fell under the general indigency statute, section 57.081, Florida Statutes. The general indigency statute provides that persons meeting the indigency requirements are permitted to have their cases heard without payment of the filing fee. See Geffken v. Strickler, 778 So.2d 975 (Fla.2001). In 1996, the legislature enacted section 57.085 to provide that indigent prisoners who file suits will have a lien placed on their prisoner trust accounts to satisfy the filing fee. A provision in section 57.085 provides that the section does not apply to “criminal or collateral criminal” proceedings. The Florida Supreme Court has held that mandamus proceedings regarding the forfeiture or computation of gain time are the functional equivalent of “collateral criminal” proceedings, so that a prisoner bringing such an action is not subject to a lien on his prisoner trust account. Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003).

However, in this case, petitioner did not raise the issue before the circuit court. These determinations of indigency are presented to the circuit courts as a preliminary matter, before an actual case file is opened, and at a time when the circuit court judge may not have the petition for mandamus before him. In this case, one could argue that petitioner acquiesced to the clerk of courts’ recharacterization of his indigency petition. It is well settled that an error cannot be complained of in the appellate court if it is not squarely presented to the lower tribunal. See Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002) citing Farinas v. State, 569 So.2d 425, 429 (Fla.1990). In Schmidt, the prisoner, after being notified that a lien was being imposed, responded to the lower tribunal that “he was not subject to those requirements because his petition was not a civil lawsuit, but rather was a ‘collateral criminal proceeding.’ ” Id. at 362. This court recognized the need for a motion requesting relief from the lower tribunal where a section 57.085 lien was erroneously placed on a prisoner trust account in Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005). This court, subsequent to Baldwin, reiterated the need for a proper motion to put the erroneous entry of a section 57.085 lien before the lower tribunal. Lopez v. McDonough, 935 So.2d 47 (Fla. 1st DCA 2006).

PETITION DENIED.

HAWKES and THOMAS, JJ„ concur.

      . The affidavit was entitled “Prisoner Affidavit of Indigency (Civil Proceedings F.S. 57.085).”


text:
    PIZZA HUT and Gallagher Bassett Services, Inc., Appellants, v. Richard PROCTOR, Appellee.
    No. 1D05-3732.
    District Court of Appeal of Florida, First District.
    April 30, 2007.

      David M. Havlicek of Kelley, Kronen-berg, Gilmartin, Fichtel & Wander, P.A., Orlando, for Appellants.
    Eric T. Kirk, Maitland, for Appellee.
   PER CURIAM.

The employer/carrier appeal a workers’ compensation order which granted the claimant’s request for a change in physicians and a second medical opinion. In challenging this award the employer/carrier present several issues on appeal, each of which we find to be without merit. In addition, while the employer/carrier refer to the major contributing cause standard in section 440.09(1)(b), Florida Statutes, that statutory provision does not apply here as this case involves two industrial accidents and injuries without any preexisting injury or condition attributable to a nonindustrial cause. As explained in Pearson v. Paradise Ford, 951 So.2d 12, (Fla. 1st DCA 2007), section 440.09(1)(b) applies when a claimant’s need for treatment or benefits is caused by the impact of an industrial accident combining with a preexisting injury or condition which is unrelated to an industrial accident. .

The appealed order is affirmed.

BARFIELD, ALLEN and KAHN, JJ„ concur.


text:
    Jerry L. SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5305.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Jerry L. Smith, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of November 17, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on October 3, 2006, appealing the order on the appellant’s postconviction motion, rendered on August 28, 2006, is untimely. Because the notice of appeal was filed more than thirty days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b).

DISMISSED.

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Robert GORHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4271.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied May 31, 2007.
    Robert Gorham, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Gorham filed a petition for writ of habeas corpus in the trial court, raising the issue of the proper release date to be- used from his conviction in Palm Beach County for purposes of application of the Prison Releasee Reoffender statute to a new conviction and sentence imposed upon him in Okeechobee County. The trial court properly denied the petition, as Gorham is not being detained in Okeechobee County based upon the conviction in Palm Beach County, and the Palm Beach County circuit court did not determine the applicable release date. This same issue is being raised in Gorham’s appeal of his conviction and sentence in Okeechobee County, which is the proper way to present the issue to this court.

GUNTHER, WARNER and POLEN, JJ., concur.


text:
    Barry E. CLAYTON, Appellant, v. James R. McDONOUGH, Secretary, Department of Corrections, and Florida Parole Commission, Appellees.
    No. 4D06-1750.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Barry E. Clayton, Miami, pro se.
    Holly N. Simcox, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed, without prejudice to appellant asserting a claim pursuant to Gomez v. Singletary, 733 So.2d 499 (Fla.1998).

WARNER, POLEN and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    Harry James MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1959.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied May 30, 2007.
    Carey Haughwout, Public Defender, and Ellen A. Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Harry Mitchell appeals from his conviction for possession of a controlled substance on the ground that the trial court erred in denying his motion to suppress. We affirm, holding that the arresting officers had reasonable suspicion to conduct an investigatory stop.

While patrolling a residential area in an unmarked Dodge Durango at 10:30 p.m., officers spotted Mitchell hiding in a dark wooded lot, located between two residences, in a high crime area known for drug activity. The officers were familiar with the lot, because they had participated in hundreds of drug arrests in the area.

As the officers approached the lot, Mitchell emerged from the shadows and headed in the officers’ direction. At this time the officers positioned their vehicle so as to illuminate the lot; once Mitchell saw that the passenger was a uniformed officer, he quickly hustled off in the opposite direction.

While Mitchell moved away, one of the officers followed, repeatedly asking him, “What are you doing?”. Still avoiding the officer and attempting to conceal something in his right front pocket, Mitchell responded evasively, “Who, me? Who, me?”. Seeing Mitchell attempt to hide something, the officer thought Mitchell was loitering and prowling, and ordered him to stop. Mitchell refused to stop, so the officer grabbed him. Mitchell resisted, and during the struggle he attempted to dump crack cocaine out of a tube in his hand.

At the suppression hearing, the court denied Mitchell’s motion to suppress, finding that the officers had reasonable suspicion to justify an investigatory stop.

“On appeal of a motion to suppress evidence, this court defers to the trial court’s factual findings but reviews legal conclusions de novo.” Stennes v. State, 939 So.2d 1148, 1149 (Fla. 4th DCA 2006).

Mitchell contends that because the officers did not have a founded suspicion that he was loitering and prowling, the stop and resultant drug seizure were unlawful. Adhering to the United States Supreme Court’s interpretation of the Fourth Amendment, we find the officers possessed a reasonable suspicion that criminal activity was afoot. See Illinois v. Wardlow, 528 U.S. 119, 120, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

“To justify an investigatory stop, the arresting officer had to have a reasonable suspicion that [Mitchell] had committed, was committing, or was about to commit a crime.” Stennes, 939 So.2d at 1149. Based on his observations, the officer suspected Mitchell of loitering and prowling in violation of section 856.021, Florida Statutes (2005). “There are two elements to a loitering and prowling charge: (1) that the defendant loitered or prowled ‘in a place, at a time, or in a manner not usual for law-abiding individuals’ and (2) such loitering took place under ‘circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.’ ” B.J. v. State, 951 So.2d 100 (Fla. 4th DCA 2007) (citing § 856.021(1), Fla. Stat. (2005)). “[A]larm is presumed under the statute if the defendant flees, [or] conceals himself or any object.” Id. (citations omitted); see also § 856.021(2), Fla. Stat. (2005).

Here, the officer observed Mitchell in a high crime area, at night, lurking in the shadows of a wooded lot bordered by two homes. This behavior alone shows conduct at a place, time, and manner not usual for law-abiding citizens. See Battle v. State, 868 So.2d 587, 589 (Fla. 4th DCA 2004) (“Lurking in the dark by residences in the wee hours of the morning is unusual for law-abiding persons.”) Further, when Mitchell spotted the uniformed officer he fled in the opposite direction, attempting to conceal something on his person. Mitchell’s evasive behavior, in conjunction with his effort to conceal an object, warranted alarm; the officer had reasonable suspicion to conduct the investigatory stop for the purpose of dispelling such alarm. Id. at 589; see Lee v. State, 868 So.2d 577, 581 (Fla. 4th DCA 2004) (“Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”).

Further, in Wardlow the United States Supreme Court reaffirmed its decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), concluding that police may conduct a brief investigatory stop when the officer possesses a “reasonable, articulable suspicion that criminal activity is afoot.” 528 U.S. at 123, 120 S.Ct. 673. In order to satisfy the reasonable suspicion standard, “[t]he officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Id. at 123-24, 120 S.Ct. 673.

The Supreme Court instructed that while “[a]n individual’s presence in an area of expected criminal activity standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime,” a defendant’s presence in an area of heavy narcotics trafficking and the defendant’s flight upon noticing police are sufficient to justify the officer’s reasonable suspicion that the individual is involved in criminal activity. Id. at 124, 120 S.Ct. 673 (“Headlong flight wherever it occurs-is the consummate act of evasion: It is not indicative of wrongdoing, but is certainly suggestive of such.”).

The factors relied upon in Wardlow are present here. Mitchell was observed in an area known for drug activity and attempted to flee at the sight of the officer. Based on the totality of the circumstances in the present case, we find that the officer had reasonable suspicion to believe that Mitchell was involved in criminal activity and the stop did not violate the Fourth Amendment. Therefore, we affirm. See Battle, 868 So.2d at 587; McGee v. State, 818 So.2d 558 (Fla. 2d DCA 2002); Mitchell v. State, 787 So.2d 224 (Fla. 2d DCA 2001) (holding that an individual’s presence in a high crime area and his attempt to flee police were factors giving rise to reasonable suspicion); McMaster v. State, 780 So.2d 1026, 1030 (Fla. 5th DCA 2001) (“[P]resence in a high crime area and unprovoked flight upon noticing the police are sufficient to find a reasonable suspicion to stop and investigate.”).

WARNER and TAYLOR, JJ., concur.


text:
    Ronald EPPERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-211.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Ronald Epperson, Panama City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ronald Epperson appeals from an order summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure.

Epperson was charged with (I) burglary of a dwelling and (II) grand theft. Pursuant to a negotiated plea, the state reduced count I to attempted burglary, and Epper-son was sentenced to five years as a prison releasee reoffender for the first count and to a consecutive term of drug offender probation for count II, with the special condition of attending and completing Palm Beach County’s drug farm. After the time expired for filing a rule 3.850 motion, he filed a rule 3.800(a) motion, challenging as illegal the fact that his probation imposed for count II is drug offender probation and the fact that it was imposed with the special condition of attending and completing Palm Beach County’s drug farm. The trial court summarily denied the motion without any explanation or attachments, and Epperson appealed.

A court may not impose drug offender probation other than for the violation of a drug related offense listed in the drug offender probation statute, section 948.034, and grand theft is not enumerated as a drug related offense. Ellis v. State, 816 So.2d 759, 761-62 (Fla. 4th DCA 2002); Parker v. State, 839 So.2d 736 (Fla. 1st DCA 2003). Further, a reasonable nexus must exist between any special condition of probation and the crime for which it is imposed. See Bell v. State, 652 So.2d 1192 (Fla. 4th DCA 1995).

The imposition of drug offender probation and related conditions, when the trial court lacks authority to do so, is cognizable in a rule 3.800(a) motion. See Anderson v. State, 941 So.2d 446 (Fla. 4th DCA 2006); Parker.

Accordingly, we reverse and remand for further proceedings. Unless the trial court is able to attach portions of the record that refute Epperson’s claim, he appears to be entitled to relief. If Epper-son is entitled to relief from this drug offender probation, and if the sentence was imposed pursuant to a negotiated plea, the trial court should either strike the unlawful drug offender portion of the probation and the related drug farm condition if the state agrees, or permit Epperson to withdraw his plea and proceed on the original charges. E.g., Gifford v. State, 744 So.2d 1046 (Fla. 4th DCA 1999) (reversing summary denial of rule 3.800(a) motion challenging fifteen-year sentence imposed for third degree felony pursuant to negotiated plea, with directions to impose lawful sentence if the state agrees or to allow defendant to withdraw plea and proceed on original charges); Philius v. State, 936 So.2d 730 (Fla. 1st DCA 2006) (reversing summary denial of rule 3.800(a) motion because three-year minimum mandatory sentence was not authorized by the statute defendant was convicted of violating, and remanding for resentencing; providing, however, that the state may either agree to the resentencing or withdraw from the plea agreement).

Reversed and Remanded for Further Proceedings.

SHAHOOD, GROSS and HAZOURI, JJ., concur.


text:
    Willie L. PRIESTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1083.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Willie L. Priester, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying Appellant’s emergency motions for reclarification of sentence is affirmed, without prejudice to his right to exhaust all administrative remedies with the Department of Corrections. If the department fails to implement the earlier orders clarifying and amending his sentences, he may then seek mandamus relief against the Department of Corrections in the circuit court. See Davis v. State, 943 So.2d 975 (Fla. 5th DCA 2006); Smith v. State, 785 So.2d 1237 (Fla. 4th DCA 2001).

STONE, FARMER and KLEIN, JJ., concur.


author: TAYLOR, J.

text:
    Glenn SMITH, Appellant, v. James R. McDONOUGH, Secretary Florida Department of Corrections, Appellee.
    No. 4D06-4898.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Glenn Smith, Indiantown, Pro Se.

      Bill McCollum, Attorney General, Tallahassee, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for ap-pellee.
   TAYLOR, J.

In this action challenging disciplinary confinement and gain time reduction imposed by officials at the Okeechobee Correctional Institution, Glenn Smith appeals the trial court’s sua sponte order transferring the venue of his action from Okeechobee County to Leon County, where the Department of Corrections has its headquarters.

The trial court entered the order transferring venue without affording Smith any notice or opportunity to be heard. The Department has confessed error based on this procedural ground. See Wells v. Harris, 884 So.2d 1030, 1031 (Fla. 4th DCA 2004); Government Employees Ins. Co. v. Burns, 672 So.2d 834 (Fla. 3d DCA 1996); Hewitt Contracting v. Joyner, 616 So.2d 190, 190-91 (Fla. 5th DCA 1993); Morris-Edge Masonry, Inc. v. Tonn & Blank, Inc., 461 So.2d 1036, 1037 (Fla. 4th DCA 1985).

Accordingly, we reverse and remand this cause to the trial court to hold a hearing to determine whether, as Smith argues, his petitions sufficiently allege constitutional violations which qualify for the “sword-wielder” exception to the state’s home venue privilege. See Barr v. Fla. Bd. of Regents, 644 So.2d 333, 337 (Fla. 1st DCA 1994); Hancock v. Wilkinson, 407 So.2d 969 (Fla. 2d DCA 1981); see also Smith v. Williams, 160 Fla. 580, 35 So.2d 844, 847 (1948).

Reversed and Remanded.

SHAHOOD and GROSS, JJ., concur.


text:
    Salvatore BURRIESCI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4470.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Salvatore Burriesci, Punta Gorda, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Salvatore Burriesci appeals a trial court order summarily denying his amended motion to correct illegal sentence seeking additional jail credit for time served out of the county pursuant to a detainer from Broward County, Florida. He previously sought additional jail credit in a motion to correct illegal sentence, which appears to have included claims for the same period of time and on the same basis. That motion was summarily denied by the trial court, and he did not appeal.

The State argues that appellant is collaterally estopped from applying for the same relief in a successive motion to correct. It is not clear in this ease whether the trial court rejected the previous motion as successive, barred by collateral estop-pel, or whether it denied relief on the merits of appellant’s claims. Also, if appellant were entitled to additional jail credit, he could argue that denial of his claims constituted a manifest injustice, an exception to the general rule of collateral estoppel. State v. McBride, 848 So.2d 287, 291-292 (Fla.2003).

We find that the amended motion was legally insufficient because it failed to show that appellant was entitled to additional jail credit based on factual matters ascertainable from the trial court’s records. See Harnage v. State, 946 So.2d 598 (Fla. 4th DCA 2006). However, affir-mance is without prejudice to appellant’s right to file a rule 3.850 motion within thirty (30) days of issuance of this Court’s opinion raising this claim. Decoste v. State, 898 So.2d 1201 (Fla. 5th DCA 2005).

Affirmed without Prejudice.

GUNTHER, FARMER and TAYLOR, JJ., concur.


text:
    Jocquin TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-193.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Jocquin Turner, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order of the circuit court denying petitioner’s petition for writ of habeas corpus is reversed, and this case is remanded for consideration of appellant’s petition on the merits. See Dugan v. State, 885 So.2d 1002 (Fla. 4th DCA 2004).

STONE, WARNER and FARMER, JJ., concur.


author: WOLF, J.

text:
    EMERALD CORRECTIONAL MANAGEMENT, Appellant, v. BAY COUNTY BOARD OF COUNTY COMMISSIONERS, Bay County, a political subdivision of the State of Florida, and Corrections Corporation of America, Appellees.
    No. 1D06-2754.
    District Court of Appeal of Florida, First District.
    May 4, 2007.

      Obed Dorceus, Tallahassee, for Appellant.
    William C. Henry, Panama City, for Ap-pellee Bay County; and Clifford C. Higby, Panama City, for Appellee Corrections Corporation of America.
   WOLF, J.

Emerald Correctional Management (Emerald) challenges a final order dismissing appellant’s complaint with prejudice for failing to state a cause of action concerning appellee Bay County Board of County Commissioners’ (the Board) decision to award a contract to Corrections Corporation of America (CCA) pursuant to a request for proposals. The issues before the court are: (1) whether the trial court erroneously relied on the broad discretion retained by the county in the request for proposal process in denying appellant’s complaint alleging improper manipulation of the request for proposal process by the county, and (2) whether appellant sufficiently stated a cause of action premised on the county’s alleged violation of Florida’s “Sunshine Law.”

We find no merit in the Sunshine Law complaint and, because there is no allegation of improper communication between two members of the same public board, uphold the trial court’s dismissal as to that issue without further comment. We find, however, that the trial court erred in dismissing appellant’s complaints regarding improper favoritism in the award of the contract regarding the Bay County Jail.

On June 21, 2005, appellee, Bay County (the County) issued a Request for Proposals (RFP) asking potential contractors to submit proposals to design, build, and finance an expansion of Bay County’s existing correctional facility. The RFP further required that the winning contractor manage the existing facility, the expanded facility, a court holding, and a vehicle sally port facility proximal to the Bay County Courthouse. Pursuant to the RFP, a bidder was required to provide detailed breakdowns of said costs on two forms that were also provided by the County. The RFP included the following clause:

The Board of County Commissioners reserves the right to accept or reject any and all proposals in whole or in part, to waive informalities in the process, to obtain new proposals, or to postpone the opening pursuant to the Board’s purchasing policies. Bids shall be valid to Bay County for a period of one hundred and twenty days after the opening.

In addition, the RFP expressly stated:

3.0 PROPOSAL INFORMATION
3.5 The County reserves the right to accept or reject in part or in whole any or all proposals submitted.
3.6 The County shall accept all proposals properly submitted. However, the County reserves the right to request clarifications or corrections to proposals. Requests for clarifications or corrections by the County shall be in writing.
4.0 BASIS FOR AWARD
4.1 The Contract will generally be awarded to the respondent that has the highest score on a structured evaluation tool approved by the Bay County Board of County Commissioners. The intent is to select the respondent considered to offer the best overall total value to the County.
4.2 There is no obligation on the part of the County to award the proposal to the lowest priced respondent, and the County reserves the right to award the proposal to the respondent submitting the best overall responsive proposal with a resulting negotiated agreement which is most advantageous and in the best interest of Bay County, and to waive any irregularity or technicality in the proposals received. Bay County shall be the sole judge of the proposal and the resulting negotiating agreement that is in its best interest and its decision shall be final.

Sealed proposals were due on September 15, 2005. Two bidders, Emerald and Intervener CCA, submitted proposals in response to the County’s request for proposals and both proposals were determined by the County to be responsive.

In its response to the RFP, appellant submitted a construction only cost of $35,404,000 to Bay County on the County’s own required proposal cost form, for the construction of the project. A breakdown of appellant’s construction cost was also provided by appellant on the County’s cost breakdown form as required. CCA, in its response to the RFP, submitted a construction only cost of $41,598,836 on the proposal cost form provided by the County. Upon receipt of the proposals, the County issued a “Request for Clarifications” by submitting separate questions to appellant and to CCA regarding their individual proposals.

On December 20, 2005, relying on new numbers submitted by CCA in response to the County’s Request for Clarifications, the County created a “New Jail Analysis” and presented the analysis to the Board. Based on CCA’s new submission, in the New Jail Analysis presented to the Board before the vote on the two proposals, the County restructured CCA’s cost proposal and reduced the original construction price by $5,109,859 to $36,488,977. This resulted in a presentation to the Board of an estimated total price for the project of $117,164,000.00 for appellant and $114,254,417 for CCA. Following the presentation, the Board directed the County to begin negotiating a contract with CCA.

On January 6, 2006, appellant filed a formal notice of protest challenging the County’s decision to negotiate a contract with CCA and the County’s intended decision to award the contract to CCA. Upon receipt of the formal request, the protest was presented to the Board, which voted to continue the negotiations with CCA. No findings were issued. On January 27, 2006, the county manager issued a letter denying appellant’s protest based on the recommendation of the county purchasing agent.

On February 8, 2006, appellant filed a six-count complaint challenging the County’s award to CCA. We find that the trial court properly dismissed all of the counts except Counts II and IV. Count II, in pertinent part, alleged that the County permitted CCA to add a clause in their bid proposal forgoing the setting of an established cost pursuant to fluctuating construction costs. As such, appellant alleged CCA was allowed to tentatively estimate a cost that would later be inflated due to the increasing construction inflation, while appellant was required to submit a set cost estimate that would not be subject to change. Appellant asserts this action unfairly favored CCA in the bid process. Count IV, in pertinent part, alleged that the County’s decision to allow CCA to make material changes to its non-responsive proposal was improper.

The County moved to dismiss. The trial court dismissed Count II because “the County is afforded significant discretion in the RFP process, the Court finds that ECM has not shown the probability of success required.... ” Count IV was dismissed even though the trial court found that Emerald has alleged the County’s actions were illegal, arbitrary, and capricious because the trial court reasoned that the County retained its express right in the RFP to maintain sole discretion in rejecting any and all proposals.

While we recognize the wider discretion afforded counties and cities in exercising discretion in accepting or rejecting responses to RFPs, the decisions still must be subject to review to determine whether the governing body acted arbitrarily or capriciously. § 255.20, Fla. Stat. (2005).

Whether a complaint is sufficient to state a cause of action is an issue of law, subject to de novo review. Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA 2000). In ruling on a motion to dismiss for failure to state a cause of action, this court is confined to a consideration of the allegations made within the four corners of the complaint. Meadows Cmty. Ass’n, Inc. v. Russell-Tutty, 928 So.2d 1276, 1280 (Fla. 2d DCA 2006). This court must assume that all allegations are true and decide whether the complaint states a cause of action. Id. at 1279. Furthermore, in a bid protest dispute where the petitioner alleges the County abused its discretion and did not comply with the RFP in evaluating proposals and/or the evaluators misinterpreted the RFP, proposal, statute or facts, the reviewing court need not second guess the members of the evaluation committee to determine whether reasonable persons might reach a contrary result. Scientific Games, Inc. v. Dittler Bros., Inc., 586 So.2d 1128, 1131 (Fla. 1st DCA 1991). Rather, a “public body has wide discretion” in the bidding process and “its decision, when based on an honest exercise” of the discretion, should not be overturned even if reasonable persons might disagree. See Sutron Corp. v. Lake Co. Water Auth., 870 So.2d 930, 932 (Fla. 5th DCA 2004) (explaining that discretion of public entity to solicit, accept or reject contract bids should not be interfered with by the courts absent a showing of dishonesty, illegality, fraud, oppression or misconduct).

In the instant case, appellant asserts the County’s acceptance of CCA’s proposal did not comply with the RFP because (1) the County unfairly amended and manipulated CCA’s proposal to bring down the overall cost of the project; (2) the County accepted CCA’s proposal even though the proposal materially altered the termination terms as set out in the RFP; and (3) the County accepted CCA’s proposal even though the proposal did not set a construction cost as required by the RFP.

In contrast to bids, a RFP is used when the public authority is incapable of completely defining the scope of work required, when the service may be provided in several different ways, when the qualifications and quality of service are considered the primary factors instead of price, or when responses contain varying levels of service which may require subsequent negotiation and specificity. Sys. Dev. Corp. v. Dep’t of Health & Rehabilitative Servs., 423 So.2d 433, 434 (Fla. 1st DCA 1982). In addition, the consideration of a response to a request for bid is controlled by the estimated costs, whereas, the response for a request for a proposal is controlled by estimated cost and technical excellence in the field. Id. Awards of contracts are generally based not solely on price, but on the results of an extensive evaluation which includes criteria, qualifications, experience, methodology, management, approach, and responsiveness to the RFP, etc. Id. Further, at the conclusion of the RFP process, the procurement officer will seek authorization from the governing body to begin negotiating the terms of the contract with the highest ranking bidder. H. Gore Enters., Inc. v. City of W. Palm Beach, 617 So.2d 1160, 1161 (Fla. 4th DCA 1993) (holding that no binding contract had been formed upon the first commission vote, because the award of the proposal was simply a selection of a vendor to negotiate a contract with). The contract is, thus, not formed until after the negotiation process. Id.

Section 255.20, Florida Statutes (2006), provides in pertinent part:

(1) A county, municipality, special district as defined in chapter 189, or other political subdivision of the state seeking to construct or improve a public building, structure, or other public construction works must competitively award to an appropriately licensed contractor each project that is estimated in accordance with generally accepted cost-accounting principles to have total construction project costs of more than $200,000.... As used in this section, the term “competitively award” means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation. This subsection expressly allows contracts for construction management services, design/build contracts, continuation contracts based on unit prices, and any other contract arrangement with a private sector contractor permitted by any applicable municipal or county ordinance, by district resolution, or by state law. For purposes of this section, construction costs include the cost of all labor, except inmate labor, and include the cost of equipment and materials to be used in the construction of the project. Subject to the provisions of subsection (3), the county, municipality, special district, or other political subdivision may establish, by municipal or county ordinance or special district resolution, procedures for conducting the bidding process.

(Emphasis added).

Section 255.20 expressly requires counties to engage in a competitive bidding or proposal process when undertaking new projects estimated at over $200,000. The statute further affords counties discretion in adopting express procedures for conducting the proposal process through the use of their county or municipal ordinances. However, Bay County has not adopted any ordinances dealing with the competitive bidding or proposal process for a public service facility such as the one involved in this dispute. However, based on the statute’s wording and relevant case law, absent the adoption of an express ordinance, the County should be held to an arbitrary and capricious competitive bidding standard:

Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference.

Hotel China & Glassware Co. v. Bd. of Pub. Instruction of Alachua County, 130 So.2d 78, 81 (Fla. 1st DCA 1961) (emphasis added). See also City of Sweetwater v. Solo Constr. Corp., 823 So.2d 798 (Fla. 3d DCA 2002) (applying this arbitrary and capricious standard to RFPs as well as bids). Whether the Board acted arbitrarily is generally controlled by a determination of whether the Board complied with its own proposal criteria as outlined in the RFP. Id. at 802 (holding that the criteria espoused in the published invitation to bidders controlled the analysis of whether the city acted in an arbitrary manner). However, because section 255.20, Florida Statutes, specifically requires counties to “competitively award” contracts based on a fair review of the proposals, the Board cannot be allowed to write out this competitive requirement by affording itself overly broad discretion to capriciously and arbitrarily award contracts without established criteria.

If appellant’s complaint is taken as true, the County’s actions — i.e., requesting modifications of figures from one bidding party but not the other and then relying on those modifications and accepting non-compliant termination and price setting clauses— amounted to impermissible favoritism. City of Sweetwater, 823 So.2d at 798 (holding that a public body’s actions affording one party an unfair advantage violates public policy and statutory law). As such, appellant has stated a cause of action based on its assertions of favoritism, and reversal for consideration of the merits of the claim is warranted.

Furthermore, a public body is not entitled to omit or alter material provisions required by the RFP because in doing so the public body fails to “inspire public confidence in the fairness of the [RFP] process.” State, Dep’t of Lottery v. Gtech Corp., 816 So.2d 648 (Fla. 1st DCA 2001). In Gtech, this court reviewed a trial court’s grant of summary judgment in favor of an unsuccessful RFP respondent. Id. at 649. The underlying action, like the action in the instant case, sought declaratory relief and requested the trial court nullify a contract between the chosen competitor and the State. Id. Appellant in Gtech asserted that the State had improperly accepted a proposal from the competition that materially altered or omitted material provisions of the RFP. Id. at 650-51. This court affirmed the trial court’s grant of summary judgment in favor of Gtech and noted:

Common sense alone suggests that ... the Lottery must be free to determine that RFP proposals either are or are not responsive to its current needs. However, rather than relying on proposals being no longer responsive in its decision to negotiate a new contract with AWI, the Lottery should have rejected both responses ... and started anew. To countenance the Lottery’s entry into a contract that was materially different than AWI’s proposal would encourage responders to RFPs to submit non-competitive, unrealistic proposals solely for the purpose of receiving the highest ranking for subsequent negotiations. It seems to us that such a procedure is at odds with the proscriptions of Chapter 287 and is not likely to inspire public confidence in the fairness of the process or that the Lottery has entered into the most beneficial agreement.
To summarize the above, it seems clear to us that the pivotal issue before the trial court and in this appeal is whether the Lottery can treat the RFP process as little more than a ranking tool to determine a preferred provider and then negotiate a contract with that provider with little or no concern for the original proposal of that preferred provider.... [W]hat was at issue here was whether the Lottery and AWI were free to negotiate a contract without limitation once the competitive responder Gtech was eliminated by virtue of its less-competitive response to the RFP.
Further, it seems to us that to hold otherwise would be to approve the use by the Lottery of the RFP process for ranking purposes only and would result in a disincentive for responding vendors to submit accurate and responsible responses to RFPs. We hold that Gtech was entitled to rely on the RFP process in submitting a responsive proposal under Florida’s system of competitive bidding and that the Lottery now cannot ignore those laws in reaching a new agreement which may in the final analysis bear little resemblance to the proposal that earned AWI preferred provider status in the first instance.

Id. at 652-53.

The RFP in this case attempted to provide the County the right to accept or reject any portion of the proposals, and thus, the County asserts they were entitled to accept the proposal and then later reject the termination portion of the proposal. According to this court’s reasoning in Gtech, this presumption is incorrect. The County’s actions in this regard violate the statutory protection afforded the competitive award process.

If, as alleged in the complaint, the county accepted terms from one party which were not contemplated by the RFP, the County would have engaged in favoritism warned against in Gtech. We, therefore, affirm in part and reverse in part for further proceedings.

BARFIELD and VAN NORTWICK, JJ., concur.

      . Bay County has listed on its website the procedures for entering RFPs and the steps taken in the proposal process; however, this website does not amount to an ordinance as required by the statute, and thus, this court may not consider the criteria listed on the website.

      . We do note, however, that in a hearing on the motion to dismiss, the County presented compelling evidence of its non-arbitrary action in choosing CCA's proposal over appellant's proposal. Namely, CCA had apparently proposed building onto the existing jail and utilizing the services that already existed while appellant had suggested building a stand alone facility with no connection to the current facilities. Further, CCA had apparently proposed building a holding zone for prisoners attached to the courthouse, while appellant had not. However, this court is confined to the four corners of the complaint and may not consider this evidence in its analysis. Meadows Cmty. Ass’n, Inc., 928 So.2d at 1279.