author: PER CURIAM. KLEIN, J., REYES, ISRAEL U., Associate Judge, SHAHOOD, C.J.,

text:
    J.M.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3298.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Rehearing Denied Sept. 17, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

J.M.C. was convicted of resisting an officer without violence as a result of his behavior while the officer was giving him a trespass warning. He raises a single issue: whether one element of the crime, that the officer be engaged in the lawful execution of a legal duty, is satisfied when the officer is giving a trespass warning. We affirm the conviction; however, there is no majority agreement on the basis on which to affirm. Hence, there are two specially concurring opinions and a dissent.

KLEIN, J. and REYES, ISRAEL U., Associate Judge, concur specially with opinions.

SHAHOOD, C.J., dissents with opinion.

KLEIN, J.,

concurring specially.

The incident began when the director of a public park called the police because of an altercation between adult soccer players she did not know and juvenile basketball players she did know. She testified that after officers came and sent the adults away, she called the police again to inform them that she had not wanted the people using the park to have to leave, but only wanted the altercation ended. She also said that another officer then came to the park, and she asked him to try to find out what the problem had been. The next thing she observed was the arrest of appellant.

In contrast to her testimony, the officer who arrested appellant testified that she had told him to ask the boys to leave the park. He testified that as he walked toward the park, he saw appellant getting on his bike, and he called appellant over. The officer explained that he intended to “trespass him from the property” and that he gave appellant a verbal trespass warning based on the authorization of the park director. At this point, according to the officer, appellant became aggressive and stated: “that I wasn’t shit, that he kicked my ass. He told me, ‘F— you,’ and just basically just obstructing my investigation.” At one point appellant clenched his fists and looked the officer in the eye, putting the officer in fear of confrontation. Appellant admitted the officer asked him to leave the park, and that he refused to give the officer his name or sign a trespass warning.

The officer then arrested appellant, and he was charged with disorderly conduct and resisting an officer without violence. The trial court found appellant not guilty of the former, but guilty of the latter, and appellant contends that his motion for judgment of acquittal should have been granted.

In order to prove the crime of resisting an officer without violence, it must be shown that the officer was engaged in the lawful execution of a legal duty and that the action by the defendant constituted obstruction or resistance of the lawful duty. § 843.02, Fla. Stat. (2005); Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). The only argument appellant raises is that the state failed to prove that the officer was engaged in the lawful execution of a legal duty when the officer called him over to give a trespass warning.

Because the evidence is reviewed in a light most favorable to the state, E.A.B. v. State, 851 So.2d 308 (Fla. 2d DCA 2003), the conflict between the testimony of the park director, who said that she did not want the boys to be asked to leave, and the testimony of the officer, who testified that she instructed him to ask them to leave, is resolved in favor of the officer.

Appellant relies on Slydell, but Slydell is distinguishable in that the officers in Slydell had no reasonable suspicion to stop the defendant and had not been asked to give a trespass warning or to remove the defendant. Slydell accordingly was free to walk away.

In L.K.B. v. State, 697 So.2d 191 (Fla. 5th DCA 1997), an officer was attempting to obtain identification from a juvenile in order to complete a trespass warning, and the issue raised was whether the officer was performing a legal duty. The majority affirmed the conviction for resisting an officer without violence based on reasoning that the officer had a reasonable suspicion that the juvenile was about to commit or had already committed an assault against a customer of a store. Judge Griffin, however, dissented, explaining:

The plain truth is that this defendant was arrested because he ran off when the officer approached him to give him a trespass warning. The problem is that a police officer cannot detain a person and force him to identify himself for the purpose of giving a trespass warning. Section 810.09, Florida Statutes provides that a person trespasses in violation of that statute by willfully entering or remaining in any property other than a structure or conveyance as to which notice against entering or remaining has been given. 810.09(1), Fla. Stat. (1995). This property owner had a right to ask the defendant to leave his property, and the defendant had the right, as well as the duty, to do so. The fact that the property owner elected to have the police do the asking did not affect this defendant’s right to leave without interference. It also does not confer any special rights upon the officer who is merely acting on behalf of the property owner. The officer’s agreement to convey the trespass warning does not convert this into a “legal duty.”
The correct analysis of a case such as this is found in In the Interest of B.M., 553 So.2d 714 (Fla. 4th DCA 1989).

L.K.B., 697 So.2d at 195 (Griffin, J., dissenting). I agree with Judge Griffin that there was no reasonable suspicion to conduct an investigatory stop in L.K.B. or in this case, but I do not believe that is determinative of whether the officer was in the performance of a legal duty.

B.M., cited by Judge Griffin, involved suppression, not resisting without violence, and this court held that the officers had no founded suspicion to stop the juvenile, who was standing with a group of people in the parking lot of a closed grocery store. The trial court denied the motion to suppress on the ground that the juvenile had remained on the property after being asked to leave. There was no evidence, however, that the juvenile had been warned against trespassing or had remained on the property after being ordered to leave. This court explained: “Even if we assume that the police officers had authority from the owner to remove trespassers, their authority in this case where no warning against trespassing was posted was limited to conveying an order to depart the premises.” Id. at 715. This court further stated in footnote 2:

A stop to inform trespassers of an order to leave required under section 810.09(2)(b), Florida Statutes, is more akin to a ‘mere encounter’ than a ‘stop’ for constitutional analysis. This is not a stop based on founded suspicion, because the crime of trespass on unposted land does not occur until after trespasser is warned to depart and fails to do so.

B.M. is not controlling here because the precise issue involved in this case, whether an officer giving a trespass warning is performing a legal duty, was not at issue in B.M.

The trespass statute requires, as an element, notice against entering or remaining on the premises by “actual communication” or other means. It is certainly not unusual for the police to be asked to communicate the notice or warning. Judge Sha-hood, in his dissent, concludes that when the officer called appellant over to give him a warning, this became a seizure which violated the Fourth Amendment because there was no reasonable suspicion that a crime had been committed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although I agree that there was no reasonable suspicion that a crime had been committed, that is not the end of the analysis. As the court explained in Rivers v. Dillards Department Store, Inc., 698 So.2d 1328, 1332 (Fla. 1st DCA1997), a civil case:

[The trespass of a structure statute] does not provide an absolute basis for the detention, since the warning had not yet been issued, although we agree that, implicitly, some detention may be necessary in order to issue the warning alluded to in that section. The detention still must be reasonable under the circumstances.

"When an officer pulls a driver over for a traffic infraction, which is not a crime, there is no reasonable suspicion of a crime, but it is permissible under the Fourth Amendment. As the Supreme Court explained in Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (footnotes omitted),

The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile [for a traffic infraction] and detaining its occupants constitute a “seizure” within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of “reasonableness” upon the exercise of discretion by government officials, including law enforcement agents, in order “ ‘to safeguard the privacy and security of individuals against arbitrary invasions....’” Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against “an objective standard,” whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon “some quantum of individualized suspicion,” other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not “subject to the discretion of the official in the field,” [citations omitted] [emphasis added].

In my opinion the officer who was called to give the trespass warning in this case was acting in a situation and in a manner contemplated by Prouse. A nd he was in the performance of a legal duty contemplated by our trespassing statute when appellant resisted. It is on that basis that I agree to affirm.

REYES, ISRAEL U., Associate Judge,

concurring specially.

I, too, would affirm the trial court, but for different reasons. I believe that based on the reliable information provided by citizen-informant King that several juveniles were causing a disturbance, Deputy Maldonado had reasonable suspicion to detain the appellant. Once the deputy ordered the appellant to return to his location and the appellant complied, this encounter became a valid investigatory stop that then ripened into probable cause to believe that the appellant committed the crime of Resisting an Officer without Violence. § 843.02, Fla. Stat. (2005); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (seizure occurs when the suspect submits to the officer’s show of authority); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002) (An order or command from a law enforcement officer during a consensual encounter transforms it into a Terry stop.).

“[T]here are three levels of encounters between the police and citizenry.” Saturnino-Boudet v. State, 682 So.2d 188, 191 (Fla. 3d DCA 1996). “ ‘The first level is considered a consensual encounter and involves only minimal police contact.’ ” Falls v. State, 953 So.2d 627, 629 (Fla. 4th DCA 2007) (quoting Popple v. State, 626 So.2d 185, 186 (Fla.1993)).

“The second level of police citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal ac-tmty.’[]

Id. at 629-30 (quoting Popple, 626 So.2d at 186); see, e.g., Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry, 392 U.S. at 30, 88 S.Ct. 1868; Thomas v. State, 250 So.2d 15, 17 (Fla. 1st DCA 1971); see also State v. Davis, 849 So.2d 398, 400 (Fla. 4th DCA 2003). Reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence, see United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), and can be provided by a citizen informant. See State v. Manuel, 796 So.2d 602, 605 (Fla. 4th DCA 2001) (“A tip by a citizen-informant, as opposed to an anonymous tipster, is entitled to a presumption of reliability and does not require further corroboration to provide the requisite reasonable suspicion for a stop.”). Tips from identifiable citizens who observe criminal conduct and report it, along with their identities to the police, will almost invariably be found sufficient to justify police action. J.L. v. State, 727 So.2d 204, 206 (Fla.1998); State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed.1996)); State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982) (quoting Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981)); e.g., Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); State v. Simons, 549 So.2d 785, 786 (Fla. 2d DCA 1989); see also 901.15, Fla. Stat. (1995).

However, if the Terry investigatory stop is not lawful, anything occurring after the stop is fruit of the poisonous tree. Pantin v. State, 872 So.2d 1000, 1002 (Fla. 4th DCA 2004) (When an investigatory stop is not based on reasonable suspicion, it violates the Fourth Amendment and is unlawful, making evidence obtained as a result of the stop inadmissible as fruit of the poisonous tree.).

The stop here was based on reasonable suspicion. Deputy Maldonado was called to the community center because several juveniles were causing a disturbance. The appellant was one of the individuals involved. King told the deputy that she wanted a trespass warning issued to them. King, who works at the community center, was an average citizen who found herself in the position of a witness to a potential trespass and thereafter relayed to Deputy Maldonado what she knew. Thus, because King was a citizen informant, Deputy Maldonado did not need to verify or corroborate the tip that the appellant was trespassing before initiating the Terry stop. King’s tip was entitled to a presumption of reliability and standing alone was sufficient and gave Deputy Maldonado the reasonable suspicion he needed to detain the appellant.

After speaking with King, Deputy Maldonado went to speak to the group of juveniles at the basketball courts, including the appellant. Deputy Maldonado was in full uniform with a gun. By the time Deputy Maldonado went to the aforementioned group, the appellant had gotten on his bike and started to peddle away. Deputy Maldonado ordered him to return and the appellant came back to him. Thus, because Deputy Maldonado was acting on the citizen informant tip, had ordered the appellant to come to him, was in full uniform with a gun, and the appellant obeyed Deputy Maldonado, the deputy initiated a valid Terry stop. Because the stop was valid, everything that occurred after the subject investigatory stop is not fruit of the poisonous tree.

This valid Terry detention then ripened into the requisite probable cause needed to arrest the appellant for Resisting an Officer without Violence. See United States v. Sharpe, 470 U.S. 675, 705-06, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (A Terry detention can ripen into probable cause for an arrest.). The crime of Resisting an Officer without Violence has two elements:

Whoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....

843.02, Fla. Stat. (2005); see Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999). First, the officer must be engaged in the lawful execution of a legal duty. Id. Second, the defendant’s action, be it by words, conduct or a combination thereof, must constitute obstruction or resistance of that lawful duty. Id. Performing a valid Terry stop is a legal duty. L.K.B. v. State, 697 So.2d 191, 193 (Fla. 5th DCA 1997). The word “obstruct” in the statute prohibiting obstruction of an officer without violence means to interfere with, impede or retard; while “oppose” in the same statute means to be in contention or conflict with, to combat, to resist. Wilkerson v. State, 556 So.2d 453, 455 (Fla. 1st DCA 1990).

Having concluded that Deputy Maldonado executed a valid Terry stop when he encountered the appellant, it is clear that he was engaged in a lawful duty. During this Terry stop, the appellant obstructed or resisted that lawful duty, thus, violating the resisting statute. Deputy Maldonado testified that during the stop, the appellant directed obscenities laced with threats. At one point, the appellant clenched his fists and looked Deputy Maldonado dead in the eye, making Deputy Maldonado believe there was going to be a confrontation. Clearly, by his words, conduct, or a combination thereof, the appellant obstructed or resisted Deputy Maldonado’s lawful duty.

It is of no consequence that Deputy Maldonado validly stopped the appellant to investigate a trespassing or disturbance, but later arrested him for Resisting an Officer without Violence. Nothing in Terry or its progeny requires that an officer must charge a subsequently arrested Terry detainee with the same crime the officer reasonably suspected the detainee was committing at the time of the stop. It is also of no import that Deputy Maldonado did not ascertain if the appellant had been notified that he could not remain on that property prior to the investigatory stop. § 810.09, Fla. Stat. (2006). Deputy Maldonado did not have to obtain any corroboration or evidence prior to confronting the appellant because the tip was from a citizen informant and Terry stops are initiated for investigative purposes. As previously stated, the purpose of a police investigation is to resolve any ambiguity. Therefore, I concur that the trial court did not err in finding the appellant guilty of this charge and did not err in denying the motion for judgment of dismissal.

SHAHOOD, C.J.,

dissenting.

As stated by Judge Klein, I agree that in order to convict a person for resisting an officer without violence, it must first be shown that “the officer was engaged in the lawful execution of a legal duty; and ... the action by the defendant constituted obstruction or resistance of the lawful duty.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001); § 843.02, Fla. Stat. (2005).

The initial encounter that occurred between the officer and appellant constituted a consensual encounter. The officer did not have the requisite well-founded, articu-lable suspicion of criminal activity to satisfy an investigatory stop. See Popple v. State, 626 So.2d 185, 186 (Fla.1993). Appellant’s actions did not meet the statutory requirements for a trespass, nor was he committing or about to commit a trespass.

There are four elements that constitute a trespass pursuant to section 810.09, Florida Statutes (2005). The elements are (1) that the property was owned by or lawfully in possession of someone other than the defendant; (2) that the defendant willfully entered the property; (3) that the defendant was on the property without authorization, license, or invitation; and (4) that notice not to enter had been given to the defendant by actual communication. State v. McCormack, 517 So.2d 73, 74 (Fla. 3d DCA 1987).

The record reflects that the park director had heard a confrontation taking place in the park where a group of kids were using foul language and getting aggressive with some adult soccer players. An officer came to the park and sent the adults away. The director called the police again and explained that she “didn’t want anybody to have to leave,” just “didn’t want anybody to get hurt.” A second officer arrived and the director pointed out the boys who caused the disturbance and specifically appellant. The director knew appellant because he “was in our youth group [at the center], and he was there for years. He’s one of my favorites.” The officer believed that the director basically wanted him to “get them out of here.” The officer then approached appellant, who was leaving the park, to investigate the incident and give appellant a trespass warning based on the director’s request.

Based on the record before us it is clear that appellant believed he had a right to be on the property, as he had been on many previous occasions, and that he did not receive any notice not to be on the property until the deputy approached him.

A similar situation occurred in Slydell, where police officers, while patrolling for trespassers, saw the defendant and did not recognize him as being a resident of the neighborhood. 792 So.2d at 669. As the officers approached the defendant to investigate him for trespassing, the defendant began to walk the other way. The defendant appeared to be trying to hide something in his hand. When the officer asked him what was in his hand, the defendant ran away. Id. at 670. The officer grabbed the defendant and forced him to the ground and in the process recovered several pieces of crack cocaine. The defendant was convicted of resisting an officer without violence, which the appellate court reversed and remanded with instructions to discharge the defendant as to this charge. The court explained why the situation would be a consensual encounter instead of an investigatory stop:

We do not agree that an officer’s bare suspicion that a person is trespassing, even when coupled with an agreement between the property owner and the police for officers to stop and investigate persons whom the officers do not recognize as residents, is sufficient for an investigatory stop and detention. A property owner’s grant of authority to police officers to investigate trespassing on the owner’s premises does not confer any greater authority upon law enforcement during police-citizen contact than do our Constitution and laws. Officers still need a reasonable and articulable suspicion that a person is engaged in criminal activity for a Terry stop.

Slydell, 792 So.2d at 672; see also In the Interest of B.M., 553 So.2d 714, 715 n. 2 (Fla. 4th DCA 1989) (A stop to inform trespassers of an order to leave is more akin to a “mere encounter” than a “stop” for constitutional analysis.).

In his concurring opinion, Judge Klein agrees that there was no reasonable suspicion of a crime, but states that an officer may detain people in certain circumstances to execute a legal duty. He compares this situation with the authority to stop an individual for a traffic infraction. This comparison equates a violation of a traffic law to a potential criminal violation simply because they both can be described as noncriminal. I disagree. Courts have explicitly held that the violation of a traffic law provides officers with the constitutional grounds to make a stop. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). This holding conforms with the Fourth Amendment in that there must be a violation of a traffic law. As explained in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979):

[W]e hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Id. at 663, 99 S.Ct. 1391. It is the violation of law that makes a traffic stop constitutional. In contrast, stopping someone who is incapable of violating the law, that is the basis for the stop, disregards their constitutional protections.

Even if we are to assume that a detention is proper to issue a trespass warning as contemplated by the opinion in Rivers v. Dillards Department Store, 698 So.2d 1328, 1332 (Fla. 1st DCA 1997), it still must be “reasonable under the circumstances.” What was reasonable for the officer, under these circumstances, was to simply tell appellant to leave the property and that he is not allowed on the property in the future. The officer admitted that a trespass warning can be given verbally; therefore, detention is not a necessary legal duty in executing a trespass warning.

Regardless of whether giving a trespass warning is a legal duty, an officer is not allowed to detain a person without constitutional grounds. Ordering appellant to stop, while appellant is in the process of leaving, and to return so the officer could give him a trespass warning is a detention. The Fourth Amendment does not contemplate that a potential criminal violation is a valid reason to support a detention. As a result, the officer did not properly execute a legal duty in detaining appellant in order to give him a trespass warning. I would reverse and remand with directions to discharge appellant.

      . "Indeed, the principal function of [a police officer's] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal-to enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.' ” Wayne R. LaFave, Search and Seizure § 9.5(b) (4th ed.2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Orlando SALAZAR, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-579, 3D05-2996.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Rehearing Denied Aug. 27, 2007.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Wallace v. State, 939 So.2d 1123 (Fla. 3d DCA 2006).


text:
    Curtis Lamar PAIGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-713.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

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

Appellant was found after trial to be a sexually violent predator under the Jimmy Ryce Act, and argues that the trial court erred in allowing Dr. Karen Parker, the clinical director for Florida’s Sexually Violent Predator Program, to testify about the screening process used to determine when a Ryce Act petition should be filed against an individual. Appellant relies on Marshall v. State, 915 So.2d 264 (Fla. 4th DCA 2005), in which the trial court had admitted statistical evidence as to the number of sexual offenders who had been referred to be considered for Ryce Act proceedings, the number screened, and the fact that only 5.4 percent of the individuals initially considered were ultimately recommended for Ryce Act proceedings.

The present case is distinguishable in that no statistics were discussed. In this case Dr. Parker testified, without reference to prescreening statistics, about the process leading up to the decision to have appellant evaluated by two psychologists who diagnosed appellant with pedophilia and testified that in their opinions he would commit future acts of sexual violence.

In Ortega-Mantilla v. State, 898 So.2d 1164 (Fla. 3d DCA 2005), the court ruled that Dr. Parker’s testimony regarding the screening process for commencement of a civil commitment proceeding was erroneously admitted because the information was irrelevant to the issue, just as a State Attorney’s testimony about the screening process used to determine whether to file charges against arrestees would be irrelevant in a criminal trial. We agree with Ortega-Mantilla that the screening process should not have been admitted; however, we are unpersuaded by appellant that the evidence was harmful.

Affirmed.

KLEIN, STEVENSON and MAY, JJ., concur.


text:
    K.M., a child, Petitioner, v. STATE of Florida and Daryl Wolfe, Superintendent of the Broward Regional Juvenile Detention Center, Respondents.
    No. 4D07-2238.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

      Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

K.M. petitions for habeas relief from indirect criminal contempt of a valid court order. We grant the petition.

K.M. appeared before the trial court for a first appearance on a violation of probation. During the hearing, the court stated that it would take K.M. into custody for indirect criminal contempt of a valid court order, i.e., breaching the curfew set in his probation disposition. The court did not follow the procedures for an indirect criminal contempt hearing set forth in Florida Rule of Juvenile Procedure 8.150 or section 985.037, Florida Statutes. Rather, the court asked K.M.’s mother if she wanted K.M. taught a lesson, and K;M. maintained his silence on advice of counsel. The trial court reversibly erred in two respects.

First, it is clear from the hearing transcripts that a valid court order did not exist for the charge on which K.M. was held, i.e., breach of curfew, at the time K.M. was found to be in indirect contempt of court. The trial court recognized that there was no valid court order regarding the violation that was allegedly breached. The only document existing in the record was a disposition listing probation requirements. As such, K.M. could not be held in indirect criminal contempt. See M.W. v. Lofthiem, 855 So.2d 683 (Fla. 2d DCA 2003).

Second, a prosecution for indirect criminal contempt is to follow the procedural due process set forth in rule 8.150 and section 985.037. The trial court did not initiate the proceeding by issuing an order to show cause, allowing reasonable time to prepare a defense, or setting a future hearing pursuant to rule 8.150(b). Also, the court explained neither the nature and consequences of the proceeding, nor the rights afforded K.M. pursuant to section 985.037(b). The court failed to provide K.M. with the due process set forth by rule and statute and so he is entitled to habeas relief and the findings of contempt are reversed. See G.C. v. State, 901 So.2d 1021 (Fla. 4th DCA 2005).

SHAHOOD, C.J., GUNTHER and TAYLOR, JJ., concur.


text:
    Ray Anthony POLLOCK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2983.
    District Court of Appeal of Florida, Third District.
    July 25, 2007.
    Ray Anthony Pollock, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

Ray Anthony Pollock appeals the denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the order in all respects except for Pollock’s claim regarding the denial of credit for prison time served from June 1, 1993, to June 1, 1994. As the State properly concedes, claims regarding the correct amount of prison credit upon resentencing are cognizable in a 3.800(a) motion to correct illegal sentence. See Dorminey v. State, 837 So.2d 528 (Fla. 2d DCA 2003). Since the trial court did not address this issue in Pollock’s motion or attach documentation that conclusively refutes Pollock’s claim to such credit, we must reverse and remand this portion of the order for further proceedings. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007).

Affirmed in part, reversed and remanded in part for further proceedings.


author: BROWNING, C.J.

text:
    Andrea Jean ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3794.
    District Court of Appeal of Florida, First District.
    July 26, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Andrea Jean Andrews (Appellant) appeals the trial court’s denial of her disposi-tive motion to suppress evidence. Because the police performed a lawful traffic stop and properly ordered the occupants of the vehicle, including Appellant, to get out, whereupon the contraband evidence was observed in plain view on Appellant’s person, we determine that the trial court correctly denied the motion to suppress. Accordingly, we affirm Appellant’s conviction and sentence.

The State’s information charged Appellant with one count of possession of cocaine and one count of possession of drug paraphernalia, a smoking device. At the suppression hearing, the trial court heard testimony that on January 27, 2006, Richard Riley, who is a special agent with the Air Force Office of Special Investigations and a sworn federal law enforcement officer, was investigating the desertion of Cody Wynkoop, who was suspected of involvement with cocaine at a local military base and resided off-base. A DD Form 553, which is an armed-forces warrant for deserters or absentees, was issued for Mr. Wynkoop. That investigation led Special Agent Riley and the Fort Walton Beach police to Mr. Wynkoop’s residence. Surveillance at that residence had disclosed at least two vehicles parked on the premises, one of which was a red Hyundai. When the special agent and the police arrived at Mr. Wynkoop’s residence on the date of the incident, no vehicles were present. The authorities knocked on the door and announced themselves as law enforcement, but no one opened the door. As the officers (who were dressed in clearly identifiable law-enforcement attire) stood in the yard and contemplated what to do next, the previously identified red Hyundai approached the residence but, 50-60 yards away, turned abruptly in a different direction. The authorities had observed this vehicle at Mr. Wynkoop’s residence a short time earlier. Believing that the residence was unoccupied and that Mr. Wynkoop, a federal fugitive, was inside the red Hyundai, the officers pursued the vehicle and stopped it after a high-speed chase.

After effecting the traffic stop, Detective Spinella approached the four-door Hyundai and immediately observed Mr. Wyn-koop hiding on the back seat beneath some clothes and under the front passenger’s seat, which was fully reclined. After announcing that “our guy” was found, an officer drew his gun, pointed it at Mr. Wynkoop, and asked him to exit the vehicle. Special Agent Riley arrested Mr. Wynkoop and took him to the police car. Appellant was the driver of the Hyundai.

As Mr. Wynkoop was taken away, Detective Spinella ordered Appellant and the occupant of the front passenger’s seat to exit the vehicle for safety reasons. Appellant was directed to the front end of the vehicle, and her hands were placed on the hood as a female agent watched her. After all the occupants of the vehicle were secured, the female agent indicated to Detective Spinella that a “crack” cocaine pipe was protruding and plainly visible from Appellant’s rear pocket. The detective retrieved the pipe and observed obvious residue on it. Appellant was arrested.

In her motion to suppress, Appellant asserted that the officers lacked any lawful basis to stop the Hyundai. On appeal, Appellant appears to have abandoned that position. Instead, she contends that once the officers removed Mr. Wynkoop from the vehicle, the purpose of the stop was met; and that any further detaining of Appellant and ordering her to exit the driver’s seat was illegal, so that the officers’ observation and retrieval of the pipe constitutes the “fruit” of an illegal detention. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The record disclosed that the agent did not observe the contraband pipe until Appellant got out of the car. The trial court concluded that the officers had a lawful basis to stop the Hyundai because of their reasonable suspicion that a military deserter was hiding inside the vehicle; that the officers were reasonably concerned about the safety of everyone involved, given the presence of a hidden fugitive; and that it was reasonable under the circumstances to order the occupants of the car to get out.

Although the trial court’s determination of historical facts is presumed correct, we, the reviewing court, have an “obligation to independently review mixed questions of fact and law of constitutional magnitude”; no presumption arises as to the ultimate denial of the motion to suppress, over which we have de novo review. See Connor v. State, 803 So.2d 598, 607-08 (Fla.2001); Butler v. State, 706 So.2d 100, 101 (Fla. 1st DCA 1998). That is, we must “independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendments and, by extension, article I, section 9 of the Florida Constitution.” Connor, 803 So.2d at 608. It is the trial court’s decision, not its particular reasoning, that is presumed correct, and that ruling will be affirmed if any basis in the record exists for doing so. See Caso v. State, 524 So.2d 422, 424 (Fla.1988).

Appellant does not challenge the legality of the traffic stop itself. The officers had a reasonable suspicion that criminal activity was afoot; therefore, they were authorized to perform an investigatory stop. See § 901.151(2), Fla. Stat. (2005); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “During the course of an investigatory stop, the police are entitled to take such action as is reasonable under the circumstances.” Carroll v. State, 636 So.2d 1316, 1318 (Fla.1994). In carrying out their investigation after the Hyundai was lawfully stopped, the officers were authorized to order all the occupants of the vehicle to exit, pending the completion of the investigatory stop. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Bernard, 650 So.2d 100 (Fla. 2d DCA 1995). The trial court accepted the State’s testimony that the officers were reasonably concerned about the personal safety of everyone involved, given their observation of a suspected federal fugitive hiding in the back of the car. It was appropriate under the circumstances for the authorities to order the occupants to stand outside the vehicle and to keep their hands observable and out of their pockets until the scene was secured. See D.N. v. State, 805 So.2d 63, 66 (Fla. 3d DCA 2002) (on mot. for reh’g); Powell v. State, 682 So.2d 1244 (Fla. 5th DCA 1996). Given the evidence that the officers believed they had apprehended a military deserter in the vehicle, it mattered not whether they had a reasonable suspicion or probable cause to believe that Appellant had committed a crime. See Wilson, 519 U.S. at 414-15, 117 S.Ct. 882; Billips v. State, 777 So.2d 1094 (Fla. 3d DCA 2001). Appellant did not contest the fact that a drug pipe was observed protruding from her pants pocket after she was ordered out of the vehicle. The officers’ presence at the location where the observation was made was justified; therefore, retrieval of the contraband pipe provided probable cause to arrest Appellant. See Reid v. State, 898 So.2d 248 (Fla. 4th DCA 2005); Derrickson v. State, 399 So.2d 100, 101 (Fla. 1st DCA 1981).

When the trial court denied the disposi-tive motion to suppress, Appellant reserved her right to appeal the denial of the motion. She then entered a no-contest plea and was sentenced to concurrent terms of two years of probation and one year of probation. The conviction and sentence are AFFIRMED.

BARFIELD and ROBERTS, JJ„ concur.


text:
    Lori HICKS, Appellant, v. Charles HICKS, Appellee.
    No. 5D06-3446.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.
    Rehearing Denied Aug. 24, 2007.
    William H. Drumm, of Icard, Merrill, Cullis, Timm, Furen Ginsburg, P.A. Sarasota, for Appellant.
    Scott Gediman, of Gediman, Duffy Gedi-man P.C., Everett, MA, for Appellee.
   PER CURIAM.

The trial court’s order enforcing the parties’ prenuptial and marital settlement agreements was supported by competent, substantial evidence. An appellate court is not permitted to reweigh the evidence. Okoh v. Okoh, 918 So.2d 316 (Fla. 2d DCA 2005).

AFFIRMED.

PLEUS, LAWSON, EVANDER, JJ., concur.


text:
    David L. DALE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3241.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    Jack Behr, Public Defender, First Judicial Circuit, and Alice F. Harris, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for belated appeal alleges that petitioner requested an appeal of his April 13, 2007, sentence by a letter to counsel dated June 14, 2007. Because petitioner’s request for appeal was made more than 30 days after rendition of the judgment and sentence, the petition for belated appeal is denied. See Fla. R.App. P. 9.110(b); cf. State v. Trowell, 739 So.2d 77, 81 (Fla.1999) (holding that an appellate court should grant a petition seeking a belated appeal if the defendant alleges that a timely request of counsel to file the notice of appeal was made and that counsel failed to do so).

PETITION DENIED.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    Jackie Lewis MORGAN, Appellant, v. DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, Construction Industry Licensing Board, Appellee.
    No. 1D07-2897.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    Jackie Lewis Morgan, pro se, Appellant.
    Ned Luczynski, General Counsel, Department of Business & Professional Regulation, and Jennifer A. Tschetter, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of rendition of the final order revoking appellant’s license as required by Florida Rule of Appellate Procedure 9.110(b), this appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    C.W., a child, and James Purdy, Public Defender, Seventh Judicial Circuit, Petitioners, v. Michael CURRIE, Director, Okaloosa Youth Academy, and State of Florida, Respondents.
    No. 1D07-2629.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    James S. Purdy, Public Defender, Seventh Judicial Circuit, and Joseph A. Palmer, Assistant Public Defender, DeLand, for Petitioners.
    Bill McCollum, Attorney General, and Joshua R. Heller and Bryan Jordan, Assistant Attorneys General, Tallahassee, for Respondents.
   PER CURIAM.

C.W., a child, petitions this court for a writ of habeas corpus, contending that the Circuit Court for Volusia County lacked jurisdiction to commit him to the custody of the Department of Juvenile Justice. However, petitioner did not timely appeal the commitment order and we therefore find that the petition is proeedurally barred. Powell v. Fla. Dep’t of Corr., 741 So.2d 1201 (Fla. 1st DCA 1999). We find petitioner’s reliance on Alachua Regional Juvenile Detention Center v. T.O., 684 So.2d 814 (Fla.1996) and Murray v. Regier, 872 So.2d 217 (Fla.2002) to be misplaced because neither of those petitioners was detained pursuant to a lower tribunal order reviewable by appeal. Concluding that this court lacks jurisdiction, the instant petition is hereby dismissed.

PETITION DISMISSED.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    James CASEN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-5986.
    District Court of Appeal of Florida, First District.
    July 31, 2007.
    James Casen, pro se, Petitioner.
    Bill McCollum, Attorney General, and Holly M. Simcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel a ruling on a petition for writ of mandamus filed in circuit court case numbers G.0601212032 and G.0660991. However, the clerk of the circuit court has certified that no such case files exist. Because there is no pleading pending below, the petition for writ of mandamus is denied.

Petitioner has tendered to this court a copy of the pleading which he asserts was filed below. This petition includes a date stamp on its face showing that it was given to prison officials for mailing. Accordingly, within 30 days, petitioner shall file with the clerk of the circuit court a copy of the petition which includes the date stamp on the face of the pleading. See Rife v. State, 958 So.2d 1053 (Fla. 1st DCA 2007); Hartley v. Fla. Dep’t of Corrections, 954 So.2d 684 (Fla. 1st DCA 2007).

PETITION DENIED.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


author: LAGOA, Judge.

text:
    NATIONAL EQUITY RECOVERY SERVICES, INC., Petitioner, v. Frances WILLIAMS and Truman Capital Mortgage Loan Trust 2005-1, Respondents.
    No. 3D07-1310.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.

      Kevin Coyle Colbert, Miami, for petitioner.
    Frances Williams, in proper person.
    Smith, Hiatt & Diaz and Diana B. Mat-son, Ft. Lauderdale, for respondent Truman Capital Mortgage Loan Trust 2005-1.
    Before GERSTEN, C.J., and ROTHENBERG and LAGOA, JJ.
   LAGOA, Judge.

National Equity Recovery Services, Inc. (“NERS”) petitions for a writ of certiorari. We treat the petition as a plenary appeal , and find that the trial court erred in entering the disbursement Order without first holding an evidentiary hearing pursuant to Section 45.032, Florida Statutes (2006).

On February 15, 2007, the trial court entered a final judgment of foreclosure in favor of the plaintiff, Truman Capital Mortgage Loan Trust, and against the defendant, Frances Williams (“Williams”). Williams’s property was then sold at public auction to a successful bidder on April 4, 2007. On April 5, 2007, Williams signed an Assignment of Interest Agreement with NERS in which she assigned to NERS her interest in any surplus funds remaining in the court registry after the foreclosure sale. On that same date, Williams received from NERS a check in the amount of $1,000 as required by the Assignment Agreement. On April 9, 2007, NERS filed a Motion for Order Directing Clerk to Release Excess Funds, pursuant to section 45.032, Florida Statutes (2006), seeking an order from the trial court directing the Clerk to disburse all surplus funds in the court registry to it. The Assignment Agreement was attached to the motion. NERS further requested a hearing before the trial court on the motion.

On April 17, 2007, the Clerk issued the Certificate of Disbursements, which reflected the amount of $43,492.45 remaining in the court registry as surplus funds. On April 23, 2007, Williams filed an Owner’s Claim for Mortgage Foreclosure Surplus with the trial court in which she attested that she did not owe any money on any mortgage on the property, and that she had not assigned her right to the surplus funds. On that same day, the trial court entered an Order Granting Issuance of Surplus Funds to Defendant, Frances Williams (the “Order”), and a check in the amount of $43,623.20 was issued to Williams. NERS petitions for review of the Order.

Section 45.032, Florida Statutes (2006), entitled Disbursement of Surplus Funds After Judicial Sale, reads, in relevant part:

(2) There is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lien-holders who have timely filed a claim. A person claiming a legal right to the surplus as an assignee of the rights of the owner of record must prove to the court that such person is entitled to the funds. At any hearing regarding such entitlement, the court shall consider the factors set forth in s. 15.033 in determining whether an assignment is sujfi-cient to overcome the presumption. It is the intent of the Legislature to abrogate the common law rule that surplus proceeds in a foreclosure case are the property of the owner of the property on the date of the foreclosure sale.
(3) During the 60 days after the clerk issues a certificate of disbursements, the clerk shall hold the surplus pending a court order.
(b) If any person other than the oumer of record claims an interest in the proceeds during the 60-day period or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus. At the evi-dentiary hearing, an equity assignee has the burden of proving that he or she is entitled to some or all of the surplus funds. The court may grant summary judgment to a subordinate lienholder prior to or at the evidentiary hearing. The court shall consider the factors in s. 45.033 when hearing a claim that any person other than a subordinate lien-holder or the owner of record is entitled to the surplus funds.

(emphasis added).

Accordingly, as evidenced by the unambiguous language of the statute, during the 60-day period after the clerk issues a certificate of disbursements, a person claiming a right to surplus funds as an assignee is entitled to an evidentiary hearing to prove that entitlement. The statute mandates that the court “shall set an evi-dentiary hearing” to determine entitlement and that it must consider the factors set forth in section 45.033, Florida Statutes (2006), in reaching that determination. Here, NERS filed its claim of interest, which, although filed before the clerk issued the certificate of disbursements, appears on the trial court docket and shows that a person other than the owner of record claimed an interest in the surplus proceeds during the 60 day period. The trial court therefore should have set the matter for an evidentiary hearing and allowed NERS to attempt to prove its entitlement to the funds before releasing the funds to Williams.

Because the trial court’s order disbursing the surplus funds to Williams was made without conducting an evidentiary hearing concerning NERS’s claim to the funds, the order is reversed and the ease is remanded to the trial court to conduct an evidentiary hearing pursuant to sections 45.032-.033, Florida Statutes (2006). If NERS proves at the evidentiary hearing that it is entitled to some or all of the surplus funds, the trial court shall order Williams to repay the amount into the registry of the court.

Reversed and remanded for further proceedings consistent with this Opinion.

      . Because the Order was entered after the final judgment of foreclosure and is disposi-tive of the question of the disposition of the money in the court registry, we treat the Order as a final order. See Clearwater Federal Savings and Loan Assn. v. Sampson, 336 So.2d 78, 79 (Fla.1976)("Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment, it becomes final as to that portion and should be treated as a final judgment ); cf. Roshkind v. Roshkind, 717 So.2d 544 (Fla. 4th DCA 1997); Remington v. Remington, 705 So.2d 920 (Fla. 4th DCA 1997); Real Estate Corp. v. Dawn Developers, Inc., 644 So.2d 145 (Fla. 5th DCA 1994).

      . Specifically, the Assignment Agreement provides as follows:
      CLIENT [Williams] GRANTS with full power of substitution, exclusively to [NERS] any and till interest, right, title CLIENT has or may have in the surplus funds held in the court registry relative to that foreclosure sale bearing the case number 06-21203-21.... THE PARTIES BELIEVE there is approximately $44,000 presently being held in the court registry relative to the above mentioned foreclosure case. CLIENT ACCEPTS AN ADVANCE payment of $1,000 paid this day to client. THE PARTIES AGREE that, in the event NERS is successful in recovering funds from the court registry, Client shall receive 85% of any such funds recovered minus amount advanced. NERS shall receive 15% plus amount advanced.

      . Williams executed the Owner's Claim under oath and subject to penalty of perjury.

      . It is unclear from the record why a discrepancy exists between the monies Williams actually received and the amount of surplus funds reflected in the Clerk's Certificate of Disbursements.


author: SHEPHERD, J.

text:
    L.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-140.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.

      Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Miami, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal from an order adjudicating L.P.’s three children dependent as to her on the ground of prospective neglect under section 39.01(14)(f) of the Florida Statutes. The substance of the testimony on which L.P. was adjudicated was cocaine use during the last trimester of her third pregnancy and thereafter. The Florida Department of Children and Family Services offered no evidence of harm caused to the youngest child in útero as a result of the illegal drug use, or that the mother failed to properly care for her three children. We conclude the evidence presented is insufficient to sustain a charge of prospective neglect.

Under the pertinent Florida law, a “[cjhild who is found to be dependent” includes not only one who actually has been “abandoned, abused, or neglected” by a parent or legal custodian, § 39.01(14)(a), Fla. Stat. (2006), but also a child who is found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect.” § 39.01(14)(f), Fla. Stat. (2006). “Neglect” occurs

... when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

§ 39.01(43), Fla. Stat. (2006). A consideration of the facts of this case requires a conclusion that these children have not been neglected within the meaning of the statute. There is no contention in this case that any child has been deprived of necessary food, clothing, shelter, or medical treatment. The record reflects the mother first used cocaine during the sixth month of her pregnancy. From this, the court worried, “if a mother could choose that moment to do something so dangerous, then we can’t even predict what other moment she would choose to do something regarding the other children that is so dangerous.” While we appreciate the trial court’s distress over what we find it properly characterized as “bizarre” behavior by the mother during the course of a pregnancy, this observation is not sufficient to support the dependency adjudication in this case. As has been aptly stated by two of our sister courts, “[tjhe issue in prospective neglect or abuse cases is whether future behavior will adversely affect the child and can be clearly and certainly predicted.” P.S. v. Dep’t of Children & Family Servs., 825 So.2d 530, 531 (Fla. 2d DCA 2002)(emphasis added) (quoting Palmer v. Dep’t of Health & Rehab. Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989)).

Under the law of this state, a parent’s drug use alone is insufficient to adjudicate on any theory, let alone a theory of prospective neglect. B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003). Even when a parent’s drug use rises to the level of addiction or mental illness, the Department must demonstrate a nexus between the drug use and the physical, mental, or emotional injury to the children. See e.g., J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 951 (Fla. 1st DCA 2004)(holding evidence insufficient to support dependency where, although parent had drug and alcohol problem, there was no evidence child suffered harm or physical, mental, or emotional injury as a consequence and no evidence parent failed to meet child’s needs while child was in his care); B.C., 846 So.2d at 1275 (accord); see also M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004)(“Although Appellant is addicted to drugs, there was no evidence that her children suffered harm as a result of her addiction, nor that Appellant failed to meet their needs while they were in her care.”). Moreover, poor parental judgment alone likewise will not support a dependency petition. I.T. v. Dep’t of Health & Rehab. Servs., 532 So.2d 1085, 1090 (Fla. 3d DCA 1988).

The Department registers what it articulates as a “serious public policy concern ... that of mothers using cocaine while pregnant, knowing the potential harm to the unborn child.” A reversal in this case, says the Department, “would give these mothers the green light to continue to place their drug abuse over the health and welfare of their children.” If it need be said, we signal nothing by this opinion other than the fact that the law of this state does not sanction an order adjudicating these children dependent as to L.P. on the facts of this case. As Judge Kahn eloquently stated in a recent case where the Department sought adjudication for actual abuse of a child by a mother under section 39.02(2) of the Florida Statutes, where, unlike the case before us, there existed a positive test for cocaine in the blood of a birth child, but no evidence exhibiting “adverse affect” within the meaning of section 39.01(30)(g)l,

Perhaps public policy would favor a rule that allows a finding of dependency solely on the basis of a newborn’s positive test for cocaine. Such a rule, however, would also allow a finding of dependency based on the presence in a newborn of any non-prescribed controlled substance or alcohol regardless of whether the child showed any adverse effects at birth. If the Legislature had intended such a result it could have [done so]. Instead, the Legislature provided a particularized definition of “exposure to a controlled substance.”

P.D. v. Dep’t of Children & Families, 866 So.2d 100, 102 (Fla. 1st DCA 2004). Similarly here, if the Legislature wishes as a matter of public policy to qualify a particular child rearing risk as a ground for adjudication, we are confident that it is able to do so. We appreciate the Department’s entreaty to us. However, it is our duty to say what the law is, and not what it should be.

Reversed.


text:
    W.H., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-111.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.

      Steven Grossbard; David Molansky, for appellant.
    Karla Perkins, Miami, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

For the reasons expressed in L.P. v. Dep’t of Children & Family Servs., 3D07-140, 962 So.2d 980, 2007 WL 2188630 (Fla. 3d DCA Aug. 1, 2007), we reverse.


text:
    Enrique CASTRO, Appellant, v. Annette MATOS, Appellee.
    No. 3D06-371.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Enrique Castro, in proper person.
    Annette Matos, in proper person.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Jackson v. Echols, 937 So.2d 1247, 1249 (Fla. 3d DCA 2006).


text:
    Olga L. JENSEN, Appellant, v. The DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-759.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Olga L. Jensen, in proper person.
    Vincent P. Dunn, Assistant District Legal Counsel, the Department of Children and Family Services, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. § 414.41(1), Fla. Stat. (2003); see also Pinelli v. Dep’t of Children & Families, 878 So.2d 491 (Fla. 1st DCA 2004).


text:
    James L. FERRARO, Appellant, v. Diane D. FERRARO, n/k/a Diane D. Deighton, Appellee.
    No. 3D06-2361.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.

      The Ferraro Law Firm, P.A., and Dino G. Galardi, Coral Gables, for appellant.
    Kohlman Hernandez, P.A., and Robert F. Kohlman, Miami, for appellee.
    Before GERSTEN, C.J., and GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Murray v. Murray, 826 So.2d 1029 (Fla. 3d DCA 2001).


text:
    SUNSHINE TOWING, INC., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION and Anchor Towing, Inc., Appellees.
    No. 3D07-37.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Berger Singerman and John C. Shawde, Miami, for appellant.
    Alexis M. Yarbrough, General Counsel, and Robert D. VanHorne and Gregory G. Costas, Assistant General Counsels, Tallahassee, for appellee Department of Transportation.
    Miguel A. De Grandy, for appellee Anchor Towing, Inc.
    Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 120.68(7)(b), (10), Fla. Stat. (2006); Dep’t of Transp. v. Groves-Watkins Constructors, 530 So.2d 912 (Fla.1988); Liberty County v. Baxter’s Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); Miami-Dade County v. Church & Tower, Inc., 715 So.2d 1084 (Fla. 3d DCA 1998); State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So.2d 607 (Fla. 1st DCA 1998).


text:
    Robert MESTRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1330.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Robert Mestres, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Harris v. State, 827 So.2d 382 (Fla. 3d DCA 2002).


text:
    Richard GALARZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1580.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Richard Galarza, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

On April 4, 2007, this Court issued an Opinion affirming in part and reversing in part the trial court’s order denying Appellant Richard Galarza’s petition to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reversed and remanded as the record before us failed to conclusively refute the appellant’s claim “that upon re-sentencing on violation of probation he was entitled to 406 days of credit for time served.” We further instructed the trial court to attach record excerpts conclusively showing that appellant was not entitled to the relief sought if it again entered an order summarily denying the post-conviction motion.

On May 18, 2007, the trial court summarily denied appellant’s post-conviction motion but attached certain record excerpts including the April 25, 2006 sentencing order, which showed that appellant was awarded 225 days of credit for time served. However, because Appellant, in his post-conviction motion, specifically asserts that the trial court “committed error by failing to grant the defendant a collective 406 days jail time credit served in lieu of the partial 225 days reflected in the defendant’s April 27, 2006[sic] sentence order,” that same sentencing order cannot conclusively refute appellant’s assertion that he is entitled to 406 days of credit for time served. As the record before us is unclear regarding whether appellant is entitled to the jail time credit he seeks, we are obliged to reverse and remand.

We note that a conventional evidentiary hearing is not required where the issue involves credit for time served. See Hidalgo v. State, 729 So.2d 984, 985 (Fla. 3d DCA 1999). Indeed, as this Court explained in Hidalgo, 729 So.2d at 985, the Florida Supreme Court’s opinion of State v. Mancino, 714 So.2d 429 (Fla.1998), requires that the trial court “review the appropriate records and make a determination whether the defendant has received proper credit for time served.”

On remand, the trial court should examine the court file and the jail card, if necessary, to determine whether appellant is entitled to additional credit for time served. Moreover, after said review, the trial court should either attach those portions of the record that conclusively refute the appellant’s claim or award him the appropriate credit for time served.

Reversed and remanded.

      . As this Court noted in Hidalgo, 729 So.2d at 985(citation omitted):
      The Mancino decision makes a strong policy statement that a defendant should be granted credit for all jail time served. Certainly the entitlement to such credit should not depend on the vagaries of the local recordkeeping system. For these purposes, therefore, we conclude that a defendant's jail card should be treated as a court record, whether or not the jail card has physically been incorporated into the court file.


text:
    Martin SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-809.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Martin Scott, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See § 775.084(4)(b)(2), Fla. Stat. (2001).


author: WARNER, J.

text:
    Frank C. BLUNT, Ann Wentworth Blunt, Gavin Blunt, Cayman Reinsurance Group, A Foreign Corporation, CRG Advisors, Ltd., and Wentworth Capital, Ltd., Appellants, v. TRIPP SCOTT, P.A., Appellee.
    No. 4D05-4833.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.

      David L. Ferguson of the Hodkin Kope-lowitz Ostrow Firm, P.A., Fort Lauder-dale, for appellants.
    Lisa D. MacClugage of Tripp Scott, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

The trial court entered a final judgment enforcing an oral settlement agreement. Appellants contend that appellant Frank Blunt had no authority to agree to a settlement on behalf of the other appellants, and no meeting of the minds occurred with respect to the terms of the settlement. We agree with both contentions and reverse.

Appellee, Tripp Scott, P.A., entered into a retainer agreement to represent Frank Blunt, Jr., Ann Wentworth Blunt, Gavin Blunt, and three corporations in federal securities litigation. The agreement, however, was signed only by Frank Blunt. Ann Blunt is Frank Blunt’s wife, and Gavin Blunt is Frank’s adult son, living in Chicago. Sometime during the securities litigation, Frank sent Tripp Scott a letter terminating its services.

Tripp Scott then filed the present suit against all appellants for unpaid fees and included a count for quantum meruit and unjust enrichment against all defendants, as Gavin complained that he was not liable for fees under the retainer agreement because he never signed it. Frank filed an answer, alleging he was answering for all defendants even though Frank is not an attorney. During the litigation, however, Gavin filed motions and responses pro se, and Frank and Ann filed their own pleadings, each signing them individually. Tripp Scott served all of its pleadings, notices, and discovery requests on Gavin, individually, and the filings in the record indicate that Tripp Scott dealt with Gavin separate and apart from Frank. Appellants eventually retained counsel to act on behalf of all of the appellants, but it appears that counsel withdrew sometime before the alleged settlement agreement in this case.

At a hearing regarding discovery matters, Frank and Peter Herman of Tripp Scott had settlement discussions in the hallway. According to Herman, Frank agreed to pay $33,000 in settlement of the fees dispute. If that amount was not paid within thirty days, then the amount due would rise to $66,000. Herman testified that Frank told him he had authority from Gavin to settle on his behalf.

When Herman sent the settlement agreement to Frank, however, Frank told him that he did not have authority to bind Gavin or the corporations, and he would not sign the written settlement agreement. That agreement included other terms which were not discussed at the settlement negotiations, including a requirement for a general release and a provision for attorney’s fees for any enforcement action.

Tripp Scott moved to enforce the settlement agreement, and after hearing testimony the trial court entered an order enforcing the agreement against all defendants, ordering the payment of $66,000, together with interest and attorney’s fees. All defendants challenge this ruling.

As we said in Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002), settlement agreements are favored by courts and will be enforced where possible. Uncertainty as to nonessential terms will not preclude enforcement, but terms not agreed to will not be enforced. Id. However, the party seeking to enforce such an agreement must show that the opposing party agreed to all of the material terms and had the authority to enter into the agreement. Id.

In order to show apparent authority or agency, we explained the requirements in Lensa Corp. v. Poinciana Gardens Ass’n, 765 So.2d 296, 298 (Fla. 4th DCA 2000):

Three elements are needed to establish an apparent agency: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance upon such representation. See Ideal Foods, Inc. v. Action Leasing Corp., 413 So.2d 416, 418 (Fla. 5th DCA 1982). The reliance of a third party on the apparent authority of a principal’s agent must be reasonable and rest in the actions of or appearances created by the principal, see Rushing v. Garrett, 375 So.2d 903, 906 (Fla. 1st DCA 1979), and “not by agents who often ingeniously create an appearance of authority by their own acts.” Taco Bell of California v. Zappone, 324 So.2d 121, 124 (Fla. 2d DCA 1975).

These elements were not established in this case. Neither Gavin nor Ann represented to Tripp Scott that Frank had the authority to bind them in settlement negotiations, and there was no testimony regarding the corporations. Tripp Scott has merely pointed to the actions of the appellants in the prior litigation as bestowing authority on Frank to negotiate for them in this action. Yet Gavin, in particular, contested Frank’s right to bind him under the retainer agreement to a specific fee. Gavin filed documents with the trial court on his own behalf until appellants retained counsel. Nothing Gavin did or said in the present litigation created a representation that Frank had authority to negotiate on Gavin’s behalf. Frank’s authority to settle was that of an agent “who ... ingeniously create[d] an appearance of authority by [his] own acts.” Id. (quoting Taco Bell of California v. Zappone, 324 So.2d 121, 124 (Fla. 2d DCA 1975)). Tripp Scott having failed to prove the authority of Frank to bind the other participants, the settlement agreement is not binding as to them.

A material term of the agreement was that all parties were bound by the agreement. Both the initial settlement negotiations and the later correspondence proved that fact. Herman and his associate specifically questioned Frank on his authority to bind Gavin during their negotiations outside the court. Later, when Frank told Herman that he could not sign for Gavin or for the corporations, which required authorization by their boards of directors, Herman suggested that he would modify the terms to limit the settlement to Frank and Ann if they would give a mortgage on some of their property as security. Frank declined. It is thus apparent that Herman sought to have all of the parties bound by the settlement. Having failed to prove that Frank had authority to bind the other parties, Tripp Scott also has failed to prove that it would even agree to a settlement agreement with Frank and Ann alone.

Furthermore, while the court attempted to enforce only the oral agreement outside of the courtroom, excluding the general release, it included in its ruling a reservation to assess attorney’s fees, which were not part of that oral agreement. Thus, the parties did not agree to a material term, namely the payment of further fees for enforcing the settlement agreement. In sum, Tripp Scott failed to prove that all material terms of the agreement were accepted even by Frank.

For the foregoing reasons, we reverse the final judgment enforcing the settlement agreement and remand for further proceedings in the case.

GROSS and TAYLOR, JJ., concur.


text:
    Robert W. FINETHY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4791.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Rehearing Denied Sept. 11, 2007.
    Robert W. Finethy, Jr., Sanderson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The appellant, Robert Finethy, challenges his resentencing after the trial court granted his motion to correct his illegal sentence. He contends that the trial court sentenced him beyond the legal maximum when it resentenced him for attempted second-degree murder after granting his motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800. Because the court could lawfully impose an upward departure sentence and make it consecutive to other sentences originally imposed, we hold that the sentence was not illegal and affirm.

Finethy was convicted and sentenced in 1996 for attempted second-degree murder with a firearm (count 1) as well as three counts of aggravated assault with a deadly weapon (counts 2 through 4), three counts of battery (counts 5, 7, and 9), and resisting arrest without violence (count 6). On count 1, the court sentenced Finethy to twenty years’ imprisonment, with a three-year mandatory minimum term for the use of a firearm, followed by ten years’ probation. This sentence was an upward departure from the sentencing guidelines. As the basis for the departure, the trial court cited section 921.0016(3)(i), which permits an upward departure if the offense created a substantial risk of death or great bodily harm to many persons or to one or more children. The facts showed that Finethy shot at his wife in their home with children present in the house.

On counts 2, 3, and 4, Finethy was sentenced to five years’ imprisonment to run concurrently with each other and with count 1. The court also imposed a minimum mandatory sentence of three years on counts 2, 3, and 4 for the use of a firearm to run consecutively to the minimum mandatory sentence on count 1. On the remaining counts, Finethy was sentenced to one year of imprisonment to run concurrently with each other and with all other sentences.

In 2005, Finethy moved to correct his sentence on count 1. The trial court agreed that the sentence was illegal. Although the jury found that Finethy had committed the attempted murder with a firearm, the information failed to charge the firearm enhancement. The trial court determined that enhancement of a conviction for use of a firearm was fundamental error where the information does not charge use of a firearm, relying on Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993). The court therefore ordered resen-tencing on count 1 only.

At resentencing before the original trial judge, the trial court sentenced Finethy to twelve years in prison followed by three years of probation. However, the court made this sentence consecutive to the five year terms for counts 2, 3, and 4, which meant that Finethy would still serve seventeen years in prison (absent any credits or gain time). The court again departed based upon section 921.0016(3)©. This was the same ground upon which the trial court departed in originally sentencing Finethy. He now appeals, contending that the sentence is illegal.

Finethy argues that the court erred in granting an upward departure under section 921.0016(3)(i), Florida Statutes (1993), because the information does not charge Finethy with the use of a firearm. He claims that the information must allege the use of the firearm before a court can upwardly depart based upon its use. He relies on Jennings v. State, 765 So.2d 878 (Fla. 5th DCA 2000). However, Jennings required the information to allege the use of a firearm to secure an enhancement under section 775.087, not section 921.0016. We too have held that it is error to enhance a sentence under section 775.087 when the information does not charge use of a firearm. See, e.g., Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993); Dallas v. State, 898 So.2d 163 (Fla. 4th DCA 2005). We have never held that it was error to upwardly depart from sentencing guidelines when some of the conduct from which the court determines a departure ground is authorized includes the use of a firearm.

Although replaced with the Criminal Punishment Code for crimes occurring on or after October 1, 1998, the purpose of the sentencing guidelines was to guide the exercise of judicial discretion so as to “eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense-related and offender-related criteria and in defining the relative importance of those criteria in the sentencing decision.” § 921.001(4), Fla. Stat. (1993). The guidelines controlled the exercise of judicial discretion in sentencing within the statutory maximum. The factors which the trial court used to exercise its discretion depended upon the facts and circumstances of each case and each defendant. The court could sentence up to the statutory maximum if it decided to depart from the guidelines. Thus, when charged with a crime, due process was satisfied because the defendant would know the statutory maximum sentence for that crime, although sentencing guidelines may have limited the sentence to something less than the maximum.

Unlike the mandatory enhancement penalties under section 775.087, the guidelines did not result in an increase in the statutory maximum penalty for the charged crime. Notice to the defendant that the state intends to prove the enhancement factor which will increase the statutory maximum of the crime provides due process to the defendant, as it allows the defendant to know not only the crime for which he is charged but also the statutory maximum extent of punishment that may be imposed.

In this case, because the trial court did not apply a sentencing enhancement factor but instead used a departure ground which still placed Finethy’s sentence within the statutory maximum, without the firearm enhancement, the sentence was not illegal. We also reject his claim of improper scoring of the crime for attempted second-degree murder. The court correctly scored it as a level eight offense. See Williams v. State, 784 So.2d 524 (Fla. 4th DCA 2001).

Finally, Finethy contends that the court engaged in vindictive sentencing when it ordered the sentence for count 1 to be served consecutively to the other counts on which he was sentenced to five years. He relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794, 799-803, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). In Pearce, the Supreme Court stated, “Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U.S. at 725, 89 S.Ct. 2072. However, where the sentence imposed upon resentencing is more lenient, it is not vindictive. Norton v. State, 731 So.2d 762 (Fla. 4th DCA 1999).

Finethy maintains that the sentence imposed is harsher than the original sentence because it is consecutive, whereas the original sentence was concurrent. We disagree. We have previously held that the imposition of consecutive sentences after concurrent sentences are reversed on appeal is not per se prohibited. Id. Moreover, the supreme court has held that “[wjhenever a cause is remanded for re-sentencing, the trial judge may impose any lawful sentence, but the judge may not increase the sentence unless such an increase is based on conduct occurring subsequent to the imposition of the first sentence.” Morganti v. State, 573 So.2d 820, 821 (Fla.1991).

Imposing consecutive sentences after postconviction relief is also permitted. In Colwell v. State, 471 So.2d 1374 (Fla. 5th DCA 1985), the defendant was sentenced to concurrent terms of life on two burglary charges arising out of two separate cases. After the sentences were ruled unlawful because they were excessive, the court re-sentenced the defendant to ten years for each burglary charge to run consecutively. The Fifth District affirmed the consecutive terms, as they were consistent with the trial court’s original sentencing plan. Similarly, in the instant case, the record reveals that this imposition of consecutive sentences was consistent with the trial court’s original intent in sentencing Finethy.

In fact, the trial court originally sentenced Finethy to twenty years’ imprisonment followed by ten years’ probation. On resentencing, by running the sentences consecutively, the total sentence amounted to a total of seventeen years’ imprisonment followed by three years’ probation. Fin-ethy’s new sentence clearly imposes less incarceration and less probation than the original sentence. Therefore, the sentence was not vindictive. See Norton; Pearce.

Finding no error in the trial court’s rulings, we affirm the sentence imposed.

GROSS and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    Warren M. FABEL, Appellant, v. Doreen L. MASTERSON and Frank Zamiello, Appellees.
    No. 4D06-4716.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Robert Rivas of Sachs & Sax, Tallahassee, for appellant.
    John C. Dotterrer and Jennifer Torres of John C. Dotterrer, P.A., Palm Beach, for appellees.
   FARMER, J.

In Fabel v. Masterson, 951 So.2d 934 (Fla. 4th DCA 2007), we reversed a summary judgment in favor of appellees. In this appeal, we review an award of prevailing party attorneys fees based on the summary judgment since reversed. From our decision on the merits, it follows that the award of attorneys fees must also be reversed.

Reversed.

STONE and HAZOURI, JJ., concur.


author: MONACO, J.

text:
    YER GIRL TERA MIA, Trust, et al., Appellant, v. Henry WIMBERLY, Jr., et al., Appellee.
    No. 5D06-3883.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.

      Terry Ingram, Trustee, North Lauder-dale, pro se.

      John F. Sproull, Palatka, for Appellee.
   MONACO, J.

The sole issue in this appeal is whether the trial court erred in denying the appellant’s request for a jury trial with respect to its counterclaim. Because we conclude that the court should have accorded the appellant a jury trial before considering the non-jury issues presented by the pleadings, we reverse.

An extensive recitation of the underlying facts of this case is unnecessary. The appellees brought suit to set aside an agreement for deed. The appellant responded by filing an answer, affirmative defenses and counterclaim. The counterclaim, which was in four counts, consisted of an action to quiet title to real property, a suit for damages for fraud, an action for “set-off and damages,” and a suit seeking damages for breach of contract. The counterclaim specifically demanded trial by jury on all issues so triable.

When the case was at issue, the trial court set it for non-jury trial. The appellant objected to a non-jury trial, pointing out that it had demanded a jury trial, and again asked that the case be set for resolution before a jury. The trial court determined, however, that the more logical sequence was to try the matters sounding in equity first, and proceeded with the non-jury trial.

At the trial the appellant once again renewed its demand for jury trial. When that request was denied, the appellant apparently presented no testimony during the non-jury proceeding. At the conclusion of the trial the trial court rendered a judgment for the appellees essentially voiding the deed that was the center of the controversy. Appellant thereafter appealed.

Section 22 of the Declaration of Rights contained within the Florida Constitution begins by declaring that “The right of trial by jury shall be secure to all and remain inviolate.” See also Amend. VII, U.S. Const. Rule 1.430, Florida Rules of Civil Procedure also provides that “The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.” In the present case while the complaint is one in equity not requiring a jury trial, several of the counterclaims are unquestionably suits at law seeking damages, the traditional realm of the civil jury trial. Thus, the issue with which we must come to grips, then, is how to secure inviolate the right of jury trial when it is intermixed with an equitable cause of action. Fortunately, this question has been addressed by the appellate courts of Florida on a number of earlier occasions.

In Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982), disapproved of on other grounds, 720 So.2d 214 (Fla.1998), for example, a party brought an action seeking to foreclose a second mortgage. The opposing party filed a counterclaim seeking damages for fraud and misrepresentation and also requested a jury trial on all issues so triable. The trial court, however, placed the entire cause on the court’s non-jury calendar. The Spring court cited to Adams v. Citizens Bank of Brevard, 248 So.2d 682, 684 (Fla. 4th DCA 1971), in which the Fourth District Court held that:

[I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue non-jury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not conclude the case. But where the compulsory counterclaim entitles the counter-claimant (upon timely demand) to a jury trial on issues which are sufficiently similar or related to the issues made by the equitable claim that a determination by the first fact finder would necessarily bind the latter one, such issues may not be tried non-jury by the court since to do so would deprive the counter-claimant of his constitutional right to trial by jury.

(Citation omitted).

The Third District Court found in Spring that the issues involved in the counterclaim or fraud claim were sufficiently similar to the issues in the foreclosure action stated in the complaint to require a jury trial of the claim at law before the equitable claims could be reached. Only after a jury verdict on the common law issues could the trial court dispose of the equitable issues that were remaining.

The rule that has evolved is that even where a complaint lies solely in equity, the filing of a compulsory counterclaim seeking remedies at law entitles the counterclaimant to a jury trial of the legal issues, if one is asked for. See Widera v. Fla. Power Corp., 373 So.2d 714 (Fla. 2d DCA 1979); Adams; Sarasota-Manatee Airport Auth. v. Alderman, 238 So.2d 678 (Fla. 2d DCA 1970). See also Hightower v. Bigoney, 145 So.2d 505 (Fla. 2d DCA 1962), reversed, 156 So.2d 501 (Fla.1963). Accordingly, if the issues involved in an action are both legal and equitable in nature, the legal issues will require resolution by a jury if they are sufficiently intertwined and if a timely demand is made. See F.R.W.P., Inc. v. Home Ins. Co., 450 So.2d 914 (Fla. 4th DCA 1984); Construction Sys. & Eng’g, Inc. v. Jennings Constr. Corp., 413 So.2d 1236 (Fla. 3d DCA 1982), review denied, 426 So.2d 26 (Fla.1983). Similarly, if the issues involved in a complaint and counterclaim are intertwined and raise legal and equitable claims, a jury trial should likewise be afforded on all issues triable by jury. See Padgett v. First Fed. Sav. & Loan Ass’n of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979); Napolitano v. H.L. Robertson & Assocs., Inc., 311 So.2d 757 (Fla. 3d DCA 1975). We conclude that this rule applies to the instant facts.

In the present case the complaint sought to set aside and strike a recorded agreement for deed on land that was in the possession of the appellant. While this appears to be equitable in nature, it is based on the appellees’ assertions that the recorded version of the agreement was based on fraud and was, in fact, a forgery. The first count of the counterclaim seeks to quiet title to the land that is the subject of the agreement for deed described in the complaint. In a common law quiet title suit under ordinary equity practice neither party would have a right to a jury trial and a jury verdict. If, on the other hand, a jury trial were accorded, the verdict would only be advisory. In some instances, however, Florida’s quiet title statute specifically authorizes a trial by jury. Section 65.061(1), Florida Statutes (2003), provides in pertinent part that:

... [I]f any defendant is in actual possession of any part of the land, a trial by jury may be demanded by any party, whereupon the court shall order an issue in ejectment as to such lands to be made and tried by a jury....

Thus, in Westview Community Cemetery of Pompano Beach v. Lewis, 293 So.2d 373 (Fla. 4th DCA 1974), one of our sister courts held that because a defendant on the counterclaim was a defendant in actual possession of the land in question, either party was entitled to a jury trial on the issues presented.

Moreover, counts 2 and 3 of the counterclaim were actions for damages for fraud and breach of contract, both of which are common law actions for damages. As both causes of action are intimately intertwined with the equitable claim contained in the complaint, there is little question but that the appellant was entitled to a jury trial on the issues raised by these counts in advance of any nonjury trial on equitable matters.

Finally, there is no question but that the appellant preserved this issue for review. The appellees candidly admit preservation of the error, noting that, “Appellees do not argue that the Appellant’s [sic] did not timely and properly set forth their demand for jury trial on those issues triable by jury and that the Appellant’s [sic] have not waived that right.”

Thus, while we fully appreciate the learned trial court’s logic in trying the equitable claim first by nonjury trial, that procedure does not square with the requirements of the governing constitutions and statutes. Accordingly, we reverse the final judgment and remand this matter for a jury trial on all issues triable by jury.

REVERSED and REMANDED.

THOMPSON, J., concurs.

PALMER, C.J., dissents, without opinion.


text:
    Jackie Lewis MORGAN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 1D07-2885.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2007.
    Jackie Lewis Morgan, pro se, Appellant.
    Jennifer A. Tschetter, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s June 6, 2007, order on timeliness, this appeal is hereby dismissed for lack of jurisdiction because the notice of appeal did not timely invoke the Court’s jurisdiction. This dismissal is without prejudice to the appellant’s right to seek any relief from the agency that is available. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

BROWNING, C. J., BENTON, and VAN NORTWICK, JJ, concur.