text:
    Daniel YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1912.
    District Court of Appeal of Florida, First District.
    May 2, 2007.
    Daniel Young, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian HOOKS, Thomas Daugherty and William Ammons, Petitioners, v. STATE of Florida, Respondent.
    No. 4D06-4970.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for petitioner Brian Hooks.

      Michael Gottlieb, Fort Lauderdale, for petitioner Thomas Daugherty.
    Samuel R. Halpern, Fort Lauderdale, for petitioner William Ammons.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.
    Terrence 0. Lynch, Fort Lauderdale, for Amicus Curiae Kenneth C. Jenne, II, Sheriff of Broward County.
   PER CURIAM.

Brian Hooks, Thomas Daugherty and William Ammons petition this court for writ of certiorari to quash the lower tribunal’s order granting the State’s motion for declaratory order and allowing the State to test and unavoidably consume DNA evidence without the presence of a defense expert or a video camera to document the testing procedures.

Petitioners are criminal defendants below, and each is charged with one count of premeditated first-degree murder and two counts of attempted first-degree murder. During the course of discovery, the State Attorney’s Office notified the defendants of its intent to perform DNA testing on certain evidence and of the possibility that this evidence may be unavoidably consumed during the testing process. The defendants filed motions objecting to the DNA testing and asked that the circuit court either allow a defense expert to be present during the testing process or have the testing procedures videotaped. The State also filed a motion seeking a declaratory order determining its authorization to perform the DNA testing. After a hearing on the motions, the circuit court found that the defendants could not have an expert present during the testing procedures due to the potential for contamination of the evidence and concerns that the Broward County Sheriffs Office Crime Laboratory would lose its accreditation.

The State has committed no constitutional violation as the unavoidable consumption of evidence during DNA testing, when done in good faith, does not violate due process. See Gordon v. State, 863 So.2d 1215, 1220 (Fla.2003) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)); State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978). However, several courts have stated that the better practice is for the State to notify the defense of the unavoidable consumption of evidence prior to the testing in order to give the defendant or a representative a fair opportunity to be present during the testing. Stipp v. State, 371 So.2d 712, 714 (Fla. 4th DCA 1979); State v. Atkins, 369 So.2d 389 (Fla. 2d DCA 1979); Herrera, 365 So.2d at 401.

We therefore grant the petition for writ of certiorari, quash the order below and remand for an evidentiary hearing so the parties can demonstrate whether it is practicable to allow videotaping or the presence of a defense expert during the DNA testing process.

The remand to the circuit court is to conduct an evidentiary hearing that will allow the parties to further develop the record with respect to the contamination, concentration and accreditation issues and, if possible, to develop safeguards that would allow for the presence of a defense expert or videotaping of the testing procedures. The parties should have an opportunity to present evidence that demonstrates whether the Broward County Sheriffs Office Crime Laboratory could lose its accreditation by videotaping the process or allowing a defense expert to be present during testing. Furthermore, the parties should have the chance to establish whether the presence of a video camera or defense expert increases the potential for contamination of the evidence and affects the concentration of the examiner performing the testing procedures.

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


author:
DAVIS, Judge.
      CANADY, Judge,

text:
    Justin Chad WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5493.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Rehearing Denied June 4, 2007.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.

      .The significance of this finding is minimal. Pursuant to section 901.15, Florida Statutes (2005), an officer may arrest a suspect on a charge of domestic violence battery that is not committed in the officer's presence without a warrant. The officer does not have this right when the charge is simple battery. Also, there is discussion in some courts regarding a "per se” exclusion to the warrant requirement when responding to a call regarding domestic violence. See United States v. Richardson, 208 F.3d 626 (7th Cir.2000). Since the trial court’s order does not turn on the officer’s authority to arrest Wheeler for suspected domestic violence battery, nor does anyone argue a per se exception, this erroneous finding is of minimal significance.

   DAVIS, Judge.

Justin Chad Wheeler appeals his convictions for trafficking in methamphetamine, possession of oxycodone, possession of marijuana, possession of drug paraphernalia, resisting an officer without violence, and possession of a firearm. Because the trial court erred in denying Wheeler’s motion to suppress, we reverse the convictions.

Wheeler moved to suppress the contraband found inside his house, alleging that it was the fruit of an illegal search of his person and his home. The testimony at the suppression hearing disclosed that three Polk County Sheriffs deputies received a dispatch message regarding a battery in progress at a residence in Lake-land. The only information in the dispatch was that a man was battering a female in the driveway of the residence. As the deputies, who were all in separate patrol cars, responded to the call, a second dispatch message was received, advising that the individuals had gone into the house at the designated address. The dispatch did not provide the source of the information or any further description of the persons involved.

Upon arriving at the designated address, two of the deputies approached a male working on a car in the driveway. The man denied knowing anything about the reported battery; however, he indicated that there were persons inside the residence. The third deputy approached the next-door residence, where an unidentified male denied seeing anything related to the alleged battery.

One deputy then remained with the male working on the car while the other two deputies approached the front door of the subject residence. Wheeler answered the door and stepped outside. One deputy advised Wheeler of the sheriffs dispatch and the purpose of their presence. Wheeler denied any knowledge of the alleged incident but did indicate that a female had left. When the deputy asked for Wheeler’s name and identification, Wheeler backed up and stepped back inside the residence. The testimony of the deputies conflicted at this point. The deputy who was talking with Wheeler said that Wheeler just backed up without saying anything. Accordingly, the deputy believed that Wheeler was refusing to answer further questions and intended to retreat inside the residence and “slam the door on us.” The other deputy testified that Wheeler advised that his identification was inside and that he would retrieve it.

When Wheeler stepped back, the first deputy immediately followed him, grasping him by the arm and placing him in handcuffs. The deputy testified that this occurred inside the residence and that he was detaining Wheeler for “obstructing my investigation.” Once he had secured Wheeler, the deputy who was inside the residence observed an ashtray with an object that he recognized as a marijuana bud. He then took Wheeler outside and searched his person, finding a packet of methamphetamine in his pocket.

While the deputy stood with Wheeler outside the house, the other two deputies searched the residence, looking for the female. They did not find anyone in the house but did see evidence of other contraband. After obtaining a search warrant, the deputies searched the home and seized the contraband.

Wheeler argued that the search of his person was performed without probable cause and that the initial search of his home was improper as the deputies did not have a search warrant at that time. He further argued that the subsequently obtained search warrant was invalid because the information that served as the probable cause for the issuance of the warrant had been illegally obtained by the prior warrantless search of the home.

In its written order denying the motion to suppress, the trial court made the following findings of fact: (1) that the deputies were dispatched pursuant to a “911 telephone call reporting domestic violence” and (2) that when Wheeler answered his front door, he stepped outside and closed the door. The trial court also made the following findings:

The defendant subsequently attempted to flee back in the residence and did not cooperate with the officers. The officers fearing that the victim may have been hurt and held against her will inside and that the defendant may have been retreating for a weapon, attempted to stop the defendant. However, they ended up inside the residence. Officers made a sweep of the residence to locate the victim. They observed in plain view drug scales on the kitchen table and discovered an outstanding warrant for the arrest of the defendant. Drugs were found on the defendant. Officers subsequently obtained a search warrant for the residence where drugs, drug paraphernalia, and other drug related items were found.

Based on these facts, the trial court concluded that the deputies had a “reasonable belief’ that their search would reveal an injured person and that they had a legal duty to investigate and “locate any injured person.” Accordingly, the trial court determined that based on this exigent circumstance, the deputies did not need a search warrant to enter and search Wheeler’s home. Furthermore, since the deputies discovered the existence of the outstanding warrant after they entered the residence, the seizure of the contraband was “inevitable” due to Wheeler’s arrest on the warrant.

A trial court’s ruling on a motion to suppress is a mixed question of law and fact. Seibert v. State, 923 So.2d 460, 468 (Fla.), cert. denied, — U.S. -, 127 S.Ct. 198, 166 L.Ed.2d 162 (2006). The trial court’s factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So.2d 422 (Fla.1988), while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Here, the findings of fact as recited in the trial court’s order are supported by competent, substantial evidence, except for two specific findings. First, the determination that the dispatch was based on a 911 call is not supported by the record. There is no testimony in the record as to the nature of the communication with the dispatcher except for a reference by one deputy that “an anonymous caller had called.” Similarly, there is nothing in the record to suggest that the call was related to a domestic violence report. Rather, the deputies testified that the report advised of a man beating a woman in front of the residence at the given address.

There are thus two issues before this court: (1) whether these facts provided the deputies with a reasonable basis to believe that an emergency existed that justified their warrantless entry into Wheeler’s residence and (2) whether these facts supported application of the inevitable discovery theory.

“A warrantless search of a home is per se unreasonable and thus unconstitutional under the Fourth Amendment.” Seibert, 923 So.2d at 468. In fact, the United States Supreme Court has observed that such a search is the chief evil against which the Fourth Amendment is aimed. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a- home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citation and internal quotation marks omitted).

However, one of the few recognized exceptions to the warrant requirement ex: ists where someone inside the home requires medical aid or assistance. Seibert, 923 So.2d at 468 (“One exception is the presence of an emergency situation which requires the police to assist or render aid.”). Under this exception, the police may enter a home without first obtaining a warrant if they have an “objectively reasonable basis ... to believe that there is an immediate need for police assistance for the protection of life or substantial property interests.” Id.

To invoke this exception, the State must rebut the presumption that the search is unreasonable by showing a “ ‘grave emergency’ that ‘makes a warrant-less search imperative to the safety of the police and of the community.’ ” Riggs v. State, 918 So.2d 274, 278 (Fla.2005) (quoting Illinois v. Rodriguez, 497 U.S. 177, 191, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). The Florida Supreme Court in Riggs went on to define “imperative” to mean that the State can show a “ ‘compelling need for official action and no time to secure a warrant.’ ” 918 So.2d at 279 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)).

Our analysis turns on whether the State was able to demonstrate that the deputies faced a grave emergency that made entry into Wheeler’s home imperative. We conclude that the State has not met this burden. First, the record shows that the dispatch consisted of an anonymous report that a male was battering a female in the driveway of the designated residence. It was reasonable for the deputies to infer that the report was made by an eyewitness, especially after the dispatch was later updated to report that the individuals involved had gone inside the residence. However, the report contained no other details. There was no description of either of the persons involved, no description of the nature of the battery, and no indication that anyone appeared injured. Upon arrival, the deputies found nothing to corroborate the report of a battery. They saw no physical evidence indicating a struggle or an injury to a person. No one they spoke with knew anything about the incident. There was nothing suspicious about the residence itself, such as an open door, and the deputies did not determine that there were persons inside the residence who refused to answer the door. Moreover, the deputies did not testify that there was any indication from inside the residence that someone within was in need of their assistance. In fact, the only information that may have corroborated the dispatch was an indication by the male working on the car that there were persons inside the house and Wheeler’s acknowledgment, after answering the door, that a female had left.

Not only did the deputies not find anything at the scene to corroborate the anonymous report of a battery, the interviews with persons at the scene indicated that a battery had not taken place.

With nothing more than these facts, we conclude that the deputies did not have a reasonable basis to believe that a grave emergency existed that made it imperative to the safety of the police and community that they enter the home contrary to the requirements of the Fourth Amendment. To affirm on these facts would, in essence, constitute our adoption of a per se exception to the warrant requirement. That is, upon receiving any anonymous call reporting an alleged battery, the police could— without any further corroboration — make a warrantless entry into a closed residence without the owner’s permission. We find no basis for such a ruling in the law of Florida or in the decisional law of the United States Supreme Court. In fact, the cases in which the courts have found that such an emergency did exist to justify warrantless entry into a private residence all identify something law enforcement observed or learned at the scene that demonstrated the existence of such a grave emergency. See Seibert, 928 So.2d at 469, and cases cited therein. The lack of such additional factual information here leads us to conclude that the trial court erred in denying the motion to suppress based on the existence of an exigent circumstance.

Likewise, we also conclude that the trial court erred in finding that the motion should be denied based on the inevitable discovery theory. Under the inevitable discovery exception to the “fruit of the poisonous tree” doctrine, “ ‘evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.’ ” Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005) (quoting Maulden v. State, 617 So.2d 298, 301 (Fla.1993)).

In the instant case, the evidence ultimately would not have been discovered by legal means because when Wheeler opened the door to his residence and stepped out in response to the deputies’ knock on the door, his exchange with the deputies was a citizen encounter, see Popple v. State, 626 So.2d 185 (Fla.1993), which, in the absence of further detail or corroboration, did not provide the deputies with either reasonable suspicion to detain Wheeler, see Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), or probable cause to arrest him on the reported battery, see Cunningham v. State, 591 So.2d 1058 (Fla. 2d DCA 1991).

One of the features of a citizen encounter is that the citizen may terminate the conversation at any time. See Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002). Since the deputies here did not have the necessary probable cause to arrest Wheeler, nor the reasonable suspicion to detain him, he was free to step back inside his home and close the door at any time. His exercise of this right led one of the deputies to improperly follow him inside and detain him for obstructing the investigation. Everything that occurred after the deputy stepped inside the home became tainted. But for the illegal entry into Wheeler’s home, the deputy never would have observed the marijuana bud in plain view and would not have discovered drugs in Wheeler’s pocket. More specifically, the deputies would not have determined Wheeler’s identity while they were legally within the home. Thus the deputies would not have determined that Wheeler had the outstanding arrest warrant for reckless driving. Accordingly, there is no inevitable discovery involved under these facts, and the trial court erred in denying the motion to suppress on that ground.

Having concluded that the facts of this case failed to provide the deputies with a basis to reasonably believe that exigent circumstances existed to justify the war-rantless entry of the home and having determined that had the deputies followed the law of a citizen encounter the inevitable discovery rule would not have been applicable, we conclude that the trial court erred in denying the motion to suppress.

Reversed and remanded.

NORTHCUTT, J„ Concurs.

CANADY, J., Dissents.

CANADY, Judge,

Dissenting.

Because I conclude that the conduct of the police in responding to the reported emergency was reasonable and that the trial court therefore correctly denied the motion to suppress, I would affirm Wheeler’s convictions.

As the majority opinion recounts, the trial court specifically found (a) that the deputies were dispatched “pursuant to a 911 telephone call” and (b) that Wheeler “attempted to flee back in[to] the residence and did not cooperate with the officers.” In my view, these crucial findings are supported by the record and together with the other pertinent findings provide an adequate basis for the trial court’s denial of the motion to suppress.

I thus disagree with the majority’s conclusion that the trial court’s “determination that the dispatch was based on a 911 call is not supported by the record.” At the suppression hearing, after testimony had been given by one of the deputies concerning the report that the perpetrator had taken the victim of the assault inside the home, defense counsel began the subsequent question to the deputy as follows: ‘Well, that’s what some anonymous caller had told [the] 9-1-1 operator, correct?” Defense counsel finished the question by elaborating on the content of the anonymous call. The deputy then answered, “Correct.” Later in questioning the same deputy, defense counsel made reference to “this 9-1-1 call.” In its argument to the trial court, the State specifically focused on the circumstance that the deputies were responding to a 911 call. The defense has never asserted — either before the trial court or in this appeal — that the basis for the dispatch was anything other than a 911 call.

“[A]ppellate courts [must] accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts.” Connor v. State, 803 So.2d 598, 608 (Fla.2001). A “reviewing court is bound by the trial court’s factual findings if they are supported by competent, substantial evidence.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). “[T]he reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Id.

Given this standard of review, I would sustain the trial court’s finding of historical fact that the deputies were dispatched “pursuant to a 911 telephone call.” The testifying deputy’s affirmative response to defense counsel’s question concerning “what some anonymous caller had told [the] 9-1-1 operator” provided a sufficient basis for the trial court’s finding of fact.

In light of the factual context determined to exist by the trial court, I would hold that there was “an objectively reasonable basis ... for the [police] to believe that there [was] an immediate need for police assistance for the protection of life.” Seibert, 923 So.2d at 468. Based on the information provided to them from the 911 calls reporting that an assault was in progress and that the female victim “had been taken inside by [the] male suspect who had been hitting her,” the deputies were justified in detaining Wheeler when he proved unwilling to cooperate with their investigation. See United States v. Crapser, 472 F.3d 1141, 1148 (9th Cir.2007) (holding “that when a suspect voluntarily opens the door of his residence in response to a non-coercive [sic] ‘knock and talk’ request, the police may temporarily seize the suspect outside the home (or at the threshold) provided that they have reasonable suspicion of criminal activity”). Wheeler’s refusal to cooperate with the deputies provided further objective grounds for a belief by the deputies that evil was afoot, that the victim of the reported assault was in immediate need of assistance, and that entry of the house was necessary to provide that assistance. Given the totality of the circumstances with which they were confronted, the police were justified in concluding that “safety [was] threatened and time [was] of the essence.” Riggs, 918 So.2d at 279.

In J.L., 529 U.S. at 273, 120 S.Ct. 1375, although holding that an anonymous tip failed to provide a sufficient basis for an investigatory stop, the Court nonetheless recognized the potential existence of “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability.” In my view, the instant case presents such circumstances.

In United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir.2002), the Eleventh Circuit considered “whether law enforcement officials may conduct a warrantless search of a private residence in response to an emergency situation reported by an anonymous 911 caller.” The Holloway court recognized that “911 calls are the predominant means of communicating emergency situations” and that “[i]f law enforcement could not rely on information conveyed by anonymous 911 callers, their ability to respond effectively to emergency situations would be significantly curtailed.” Id. at 1339. The court concluded that “when an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller.” Id.

In Holloway, the court specifically considered circumstances where officers received “a dispatch from a 911 operator relaying [an anonymous] report of gunshots and arguing at [the defendant’s] address,” followed by a “second dispatch indicating continued gunshots and arguing.” Id. at 1338. When the officers arrived at the defendant’s dwelling, “nothing at the [scene] dissuaded the officers from believing the veracity of the 911 calls.” Id. The court held that the officers acted reasonably in searching the defendant’s house: “Under the circumstances known to them at that time, the officers reasonably believed an emergency situation justified a warrantless search of [the defendant’s] home for victims of gunfire. The possibility of a gunshot victim lying prostrate in the dwelling created an exigency necessitating immediate search.” Id.

Other courts have also held that an anonymous 911 report of a grave threat to safety can provide the basis for the entry of a home, see State v. Torres, 201 Or.App. 275, 118 P.3d 268 (2005); see also People v. DePaula, 179 A.D.2d 424, 579 N.Y.S.2d 10 (N.Y.App.Div.1992); State v. Boggess, 115 Wis.2d 443, 340 N.W.2d 516 (1983); or an investigatory detention, see People v. Dolly, 40 Cal.4th 458, 53 Cal.Rptr.3d 803, 150 P.3d 693 (2007); State v. Prendergast, 103 Hawai’i 451, 83 P.3d 714 (2004); State v. Golotta, 178 N.J. 205, 837 A.2d 359 (2003).

Here, the police had information which they could reasonably credit as a contemporaneous, eyewitness account of events pointing to the existence of a potentially grave threat to the physical safety of the reported victim. When Wheeler refused to cooperate with the investigation undertaken by the deputies, the deputies’ reasonable fear for the safety of the reported victim was understandably heightened. The deputies were not constitutionally required to slink away as Wheeler slammed the door in their faces. Based on the historical facts determined by the trial court, I cannot conclude that the deputies at any point acted other than reasonably. As in Holloway, the objectively reasonable prospect of a “victim lying prostrate in the dwelling” justified the warrantless search of the dwelling. 290 F.3d at 1338. I therefore dissent from the majority’s conclusion that the deputies violated the Fourth Amendment.

      . The officers determined that there was an outstanding Hillsborough County arrest warrant for Wheeler on a charge of reckless driving.

      . Upon questioning one of the deputies, Wheeler’s trial counsel suggested that the call was an anonymous call placed to the 911 operator; however, that conclusion is not based on any testimony or evidence in this record. This finding is significant only in considering the weight to be given to the ''tip.” Some courts have determined that a 911 call should be given more credibility than other anonymous calls placed to law enforcement. See United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir.2004). However, these cases do not apply here because the record fails to support the finding that this was a 911 call.

      . The Constitution of Florida directs that the Florida courts should follow the decisional law of the United States Supreme Court in interpreting the Fourth Amendment to the Constitution of the United States. See art. I, § 12, Fla. Const.

      . The Supreme Court of New Jersey stated that "the State stands on firm constitutional ground when it treats the anonymous 9-1-1 caller in the same fashion as it would an identified citizen informant who alerts the police to an emergent situation.” Golotta, 837 A.2d at 367. In reaching this conclusion, the court reasoned that "a call placed and processed via the 9-1-1 system carries enhanced reliability not found in other contexts” because under the applicable state law, information concerning the telephone number and location of 911 callers is generally made available to the police. Id. at 366-67. It appears that Florida law is similar to New Jersey law in this respect. See § 365.175, Fla. Stat. (2006); see also § 365.171. The general availability of such information to the authorities, coupled with the risk of prosecution faced by individuals making false 911 reports, bolsters the reliability of 911 reports. See J.L., 529 U.S. at 276, 120 S.Ct. 1375 (Kennedy, J., concurring) (noting that "the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips”).


author: WARNER, J.

text:
    Kendrick STAFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4653.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction for dealing in stolen property based upon his pawning of jewelry taken from a home in which he was moving furniture. He raises two issues. First, he claims that the court erred in refusing to allow a witness to testify to an exculpatory statement made by appellant. Second, he objects to the trial court’s failure to give an instruction on petit theft as a lesser included offense. We affirm, holding that the exculpatory statement was hearsay and inadmissible. We further conclude that the court did not err in refusing to instruct on petit theft, a category two offense of dealing in stolen property, because the elements of the crime were not included within the charging document.

During trial, appellant sought to cross-examine his work supervisor regarding an exculpatory statement appellant made to him when confronted with the supervisor’s accusation that appellant had stolen items from the home. A defendant’s out-of-court exculpatory statements are inadmissible hearsay. Cotton v. State, 763 So.2d 437, 439 (Fla. 4th DCA 2000) (“When a defendant seeks to introduce his own out-of-court exculpatory statement for the truth of the matter stated, it is inadmissible hearsay.”). Appellant claims, however, that the state opened the door to such testimony in the direct examination of the supervisor. Having examined the testimony, we disagree that the state opened the door or that the exculpatory statement was necessary to correct any misleading impression. No reversible error occurred.

In instructing the jury, the trial court refused to instruct on petit theft, a category two lesser included offense of dealing in stolen property. Appellant claims this constitutes reversible error. We disagree. Florida Rule of Criminal Procedure 3.510 provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

A jury instruction on a permissive lesser included offense is allowed where the elements of the lesser included offense are included in the charging document and some evidence of the lesser included offense is submitted at trial. See State v. Espinosa, 686 So.2d 1345 (Fla.1996). While there was evidence of theft submitted at trial, the charging document does not contain the elements of petit theft. Therefore, the trial court did not err in denying the request for the petit theft instruction.

Affirmed.

STEVENSON, C.J., and TAYLOR, J„ concur.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Bureau of Driver Improvement, Petitioner, v. Samuel L. LANKFORD, Respondent.
    No. 1D06-6020.
    District Court of Appeal of Florida, First District.
    May 14, 2007.
    Bryan Thomas Pugh, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    Mitchell Stone, Jacksonville, for Respondent.
   PER CURIAM.

The Department of Highway Safety and Motor Vehicles seeks certiorari review of an order of the circuit court granting Samuel L. Lankford’s petition for writ of cer-tiorari challenging the suspension of his driver’s license based on his arrest for driving under the influence. The circuit court concluded that the hearing officer should have invalidated Lankford’s license suspension because the arresting officer did not provide a reason for failing to bring the videotape of the traffic stop and arrest to the hearing as directed by subpoena duces tecum. This was a departure from the essential requirements of the law.

At no time during either of his two evidentiary hearings did Lankford preserve this issue for review by raising an objection before the hearing officer. Because this argument was waived at the trial level, it could not have been properly used as a basis for reversal of the hearing officer’s decision to suspend Lankford’s license. See Dep’t of Safety & Motor Vehicles v. Marshall, 848 So.2d 482 (Fla. 5th DCA 2008).

Moreover, we find no provision in the pertinent statute and rule that authorizes invalidation of a DUI license suspension because a witness did not provide the hearing officer with a good reason for failing to bring evidence pursuant to a subpoena duces tecum. See § 322.2615, Fla. Stat. (2004); Fla. R. Admin. P. 15A-6.013.

Accordingly, we find that the circuit court exceeded its authority, thus departing from the essential requirements of law resulting in a miscarriage of justice. See, e.g., Dep’t of Highway Safety & Motor Vehicles v. Snelson, 817 So.2d 1045 (Fla. 2d DCA 2002); Dep’t of Highway Safety & Motor Vehicles v. Scinta, 828 So.2d 486, 488 (Fla. 2d DCA 2002); Moore v. Palilla, 739 So.2d 1228, 1229 (Fla. 1st DCA 1999).

We GRANT the petition for writ of cer-tiorari and QUASH the order below.

BARFIELD, KAHN, and PADOVANO, JJ., concur.

      . Section 322.2615(6)(c) and rule 15A-6.013(5) authorize a party to enforce a subpoena duces tecum in circuit court when a witness has failed to comply. The hearing officer below informed Lankford of this and continued the proceeding while Lankford successfully pursued this remedy.


text:
    Mohamed DANDASHI, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1297.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Mohamed Dandashi, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals an order denying his motion for clarification. In that motion, the defendant requested the trial court to require the Department of Corrections to give him proper credit for time served in jail. The trial court denied the motion because the defendant did not indicate that he had pursued his administrative' remedy with the Department of Corrections. We affirm the trial court’s order without prejudice to defendant’s ability to first exhaust his administrative remedies and then file a petition for writ of mandamus in the trial court, if necessary. See King v. State, 665 So.2d 377 (Fla. 4th DCA 1996).

Affirmed.

FARMER, GROSS and MAY, JJ., concur.


text:
    Carlos MACIAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1071.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Carlos Macias, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Saintelien v. State, 937 So.2d 234 (Fla. 4th DCA 2006); rev. granted, SC 06-1888, 952 So.2d 1191, 2007 WL 1113973 (Fla. Mar 28, 2007).

GUNTHER, FARMER and MAY, JJ., concur.


author:
STEVENSON, C.J.
      WARNER, J.,

text:
    BOARD OF COMMISSIONERS OF JUPITER INLET DISTRICT, Appellant, v. Paul THIBADEAU and Florida Department of Environmental Protection, Appellees.
    No. 4D05-3863.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Kenneth G. Spillias and Thomas F. Mul-lin of Lewis, Longman & Walker, P.A., West Palm Beach, and Kevin S. Hennessy of Lewis, Longman & Walker, P.A., Bra-denton, for appellant.
    John S. Yudin and William E. Guy, Jr., of Guy & Yudin, LLP, Stuart, for appellee Paul Thibadeau.
    Toni L. Sturtevant, Tallahassee, for ap-pellee Florida Department of Environmental Protection.
   STEVENSON, C.J.

This appeal stems from a chapter 120 administrative proceeding wherein the Jupiter Inlet District and two property owners challenged a dock permit sought by Paul Thibadeau and authorized by Florida’s Department of Environmental Protection (“DEP”). We affirm.

Thibadeau owns residential property on River Road in Jupiter, Florida, adjacent to the southern shore of the central embayment of the Loxahatehee River. The Lox-ahatchee River is classified as an “Outstanding Florida Water,” and also as an “Aquatic Preserve,” and is entitled to special protection because of its natural attributes. See Fla. Admin. Code R. 18-20.001(2) (Aquatic Preserves), 62-302.200(18), 62-341.215(12) (Outstanding Florida Waters). In August of 2002, Thi-badeau filed an application and notice of intent to use a noticed general permit (“NGP”) to construct a single-family dock extending into the Loxahatehee River from the northwest side of his property. After insisting upon some modifications, the DEP approved the NGP and issued a letter of consent to use sovereign submerged lands. Thibadeau’s proposed project, as revised, consists of a 900-square-foot dock comprised of a 3-foot by 250-foot access walkway, a 6-foot by 25-foot terminal structure, and two 8-foot by 30-foot boat slips (one a “wet-slip”; the other a boat-lift).

Thereafter, in June of 2003, the Jupiter Inlet District (“JID”) filed a petition requesting a formal administrative hearing, raising issues concerning whether the dock met the criteria for an NGP. See § 120.57, Fla. Stat. (2006). JID further argued that the dock, which was to be built over sovereign submerged lands and in an area designated as an aquatic preserve, violated the limitations set forth in Florida Administrative Code chapters 18-20, pertaining to aquatic preserves, and 18-21, pertaining to sovereign submerged lands. Chapter 18-20 includes a rule requiring consideration of the cumulative impacts of a particular activity in the aquatic preserve, and chapter 18-21 includes the requirement that all structures “must be set back a minimum of 25 feet inside the applicant’s riparian rights line.” See Fla. Admin. Code R. 18-20.2006, 18-21.004(3). Finally, JID alleged the dock created a navigational hazard and inhibited its maintenance obligations under an agreement between it and the Board of Trustees of the Internal Improvement Trust Fund (“the Board”).

In May of 2004, Jeffrey and Andrea Cameron and Douglas Bogue, owners of residential property along the Loxahatehee River west of Thibadeau’s home, intervened in the proceedings. The Camerons and Bogue claimed that the dock would interfere with navigation and recreational activities and did not satisfy the criteria for issuance of an NGP. None of the inter-venors are involved in this appeal.

Following an extensive evidentiary hearing that included testimony from a myriad of permitting and engineering experts, the administrative law judge (“ALJ”) issued a recommended order ruling that Thibadeau be permitted to construct his dock pursuant to the NGP and letter of consent with some added conditions. The ALJ found that Thibadeau’s application met all the requirements for an NGP, and that the dock would not significantly impede navigation nor unreasonably infringe upon the riparian rights of nearby landowners. The ALJ also found the JID had standing in that it has “broad navigational and at least limited environmental responsibilities” in the central embayment and, thus, its interests were substantially affected by the proposed dock. The JID filed exceptions to the ALJ’s findings, challenging, among other things, the determination that the dock complied with Florida Administrative Code rule 18-21.004(3)’s riparian line setback requirement. In denying the exception, DEP found “it was unclear that ... [JID] had standing to object” as the ALJ had found JID’s standing arose from its navigational and environmental responsibilities and the setback requirement was unrelated to the same. In any event, the agency upheld the determination that the proposed dock, with imposition of the ALJ’s additional conditions, satisfied all relevant criteria.

In this appeal, the JID challenges the findings made by the ALJ and the agency pertaining to its standing to challenge the dock’s compliance with the rule requiring a 25-foot setback from the riparian rights line and raises a myriad of complaints regarding the determination that the dock complied with all relevant rules and criteria, including the riparian line setback requirement. In his cross-appeal, Thibadeau insists, as he did below, that the JID lacked standing to challenge the dock’s construction on any level and to participate in the chapter 120 proceedings. We affirm without further comment as to the findings in the order appealed concerning the dock’s compliance with all relevant rules and criteria and write only to address the standing issues raised by the parties.

Standing to participate in section 120.57 hearings is afforded to those “whose substantial interests will be affected by proposed agency action.” See § 120.52(12)(b), Fla. Stat. (defining the term “party”); AmeriSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997).

[B]efore one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.

Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981).

Thibadeau challenges the JID’s standing to object to the dock and to participate in the chapter 120 proceedings on two fronts. First, Thibadeau asserts that since the JID is an independent special district, in order to challenge the dock, it must have been delegated authority and responsibility for navigational safety, protecting recreational activities, or undertaking management activities in the central embayment and this is not the case. Second, Thiba-deau contends JID failed to satisfy the first prong of the Agrico test as it failed to demonstrate that its own rights, rather than simply the rights of citizens, would be affected. We are not persuaded by either argument.

True enough, independent special districts are created by the legislature, see sections 189.402(1), 189.403(1), (3), Florida Statutes, and, like agencies, their powers are limited to those granted them. Cf. State, Dep’t of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So.2d 787, 793 (Fla. 1st DCA 1982) (stating that “[a]n agency has only such power as expressly or by necessary implication is granted by legislative enactment” and “[w]hen acting outside the scope of its delegated authority, an agency acts illegally”). JID was created for the purpose of “deepening and maintaining the Loxahatchee River ... for the preservation of the public health, for the public good, and for the use of the public.” Ch.2000-412, § 3(a), at 211, Laws of Fla. In addition, JID exercised its legislatively-given power to contract, see Chapter 2000-412, § 3(b)(1), at 211, Laws of Florida, and section 607.0302, Florida Statutes, by entering into a management agreement for the Loxahatchee River with the Board, the body charged with the “administration, management, control, supervision, conservation [and] protection” of state lands. See § 253.03(1), Fla. Stat. The agreement authorizes JID to perform activities described in the “Management Plan for the Loxahatchee River,” which is a lengthy agreement with the purpose of “enhancing] recreational uses, improving] the productivity of the river, and preserving] and enhancing] the natural resources ....” It includes provisions regarding the enhancement of habitat, habitat management, water quality monitoring, and navigation. The plan envisions that JID will serve as a “clearinghouse and coordinator for activities relating to the river” and that JID “will plan and implement identified management options” the objective of which “will be to protect, enhance, and maintain the natural resources and public recreational value of the Loxa-hatchee River and the JID’s main objective of maintaining an open and safe navigation system.”

Absent any other considerations, JID’s contract with the Board clearly affords JID the right and ability to oppose any activity that would impede navigation or public recreation or harm natural resources in the areas governed by the agreement. Thibadeau does not dispute this. Instead, he insists that, as a consequence of paragraph 7 of the agreement, the JID has contracted away its right to oppose or object to a third party’s use of the land. Paragraph 7 provides that

The Board retains the right to enter the property and to engage in management activities other than those provided for herein following notification to and consultation with the Grantee and further retains the right to grant approval for compatible uses of the property to third parties during the term of this Agreement. The Board shall determine whether or not any proposed uses by a third party are compatible with the uses authorized herein.

It appears to us that the plain language of paragraph 7 reserves to the Board: (1) the right to engage in “management” activities of its own and apart from those undertaken by JID and (2) the right to make the ultimate determination regarding whether a particular use of sovereign submerged lands is consistent or “compatible” with the activities authorized by the agreement between it and JID. It does not provide that JID has no right to object or complain of a particular use. We, thus, reject Thi-badeau’s claims that the JID acted outside of its delegated authority, and thus illegally, and that the JID has no responsibility for navigational safety, protection of recreational activities, or undertaking management activities in the central embayment.

We also disagree with Thibadeau’s contention that the JID failed to demonstrate that its own rights, rather than the rights of citizens, would be affected. As the foregoing discussion illustrates, JID has its own rights and responsibilities regarding navigation, recreation, and management activities, and it presented some evidence that the dock would impede navigation, diminish public recreation, and harm natural resources. We thus reject Thibadeau’s claim that the JID wholly lacked standing to object to the dock and participate in the chapter 120 proceedings.

This, then, brings us to the standing argument advanced by the JID. In denying the JID’s exceptions to the AL J’s findings regarding the riparian rights line, the agency found “it was unclear that ... [JID] had standing to object.” In so stating the agency pointed to the facts that the JID’s Second Amended Petition had asserted that its interest in the dock arose out of its maintenance and management activities in the Loxahatchee River and that the ALJ had found the JID’s standing arose from its navigational and environmental responsibilities, but the setback requirement “does not necessarily relate to these interests.” Despite such conclusion, the agency went on to consider the substance of the objections and concluded they were not “well-founded.” In this appeal, JID challenges (1) the agency’s statement concerning its standing regarding the riparian rights issue, insisting that standing is not determined on an issue-by-issue basis and that since it meets the threshold criteria to participate in the chapter 120 formal hearing it had standing to challenge the dock on all grounds and insist upon compliance with all criteria, and (2) the agency’s determination that the dock complied with the riparian line setback requirement.

While standing to participate in chapter 120 proceedings is afforded to those whose “substantial interests” will be affected by the proposed action, standing to seek judicial review is narrower and limited to those who are “adversely affected by final agency action.” See § 120.68(1), Fla. Stat.; O’Connell v. Fla. Dep’t of Cmty. Affairs, 874 So.2d 673, 675 (Fla. 4th DCA 2004). We do not believe that JID has standing, on appeal, to challenge either the agency’s suggestion that it was unclear whether it had standing to object to the ALJ’s findings regarding the dock’s compliance with the riparian line setback requirement or to challenge the dock’s compliance with the riparian line setback requirement. This is so because JID cannot demonstrate that it was adversely affected by either ruling. Whatever doubts the agency may have had concerning JID’s standing to object to the dock’s compliance with the riparian line setback requirement, the agency went on to consider the merits of JID’s arguments. Thus, JID cannot be said to have been “adversely affected” as a consequence of the agency’s standing concerns.

We also conclude that JID has not shown it has been adversely affected with respect to its appellate claim that the dock did not actually comply with the riparian line setback requirement. Florida Administrative Code Rule 18-21.004(3)(d) provides in pertinent part that the proposed dock structure “must be set back a minimum of 25 feet inside the applicant’s riparian rights line.” Testimony at the hearing was to the effect that a riparian rights line is drawn so as to apportion access to open waters between adjoining upland property owners. See Shore Village Prop. Owners’ Ass’n v. State Dep’t of Envtl. Prot., 824 So.2d 208, 211 (Fla. 4th DCA 2002) (“In Florida, riparian rights include ‘(1) general use of the water adjacent to the property, (2) to wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions.’ ”) (quoting Tewksbury v. City of Deerfield Beach, 763 So.2d 1071, 1071 (Fla. 4th DCA 1999), quoting Belvedere Dev. Corp. v. Dep’t of Transp., 476 So.2d 649 (Fla.1985)). The JID does not own property adjoining Thibadeau’s and, thus, simply could not be “adversely affected” by the manner in which the riparian line was drawn or the dock’s compliance with the riparian line setback requirement.

We have considered the other issues on appeal, but find no reversible error. Accordingly, the final order of the DEP is affirmed.

TAYLOR, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur with the majority opinion with the exception of the majority’s determination that the Jupiter Inlet District has standing based upon delegated authority to file its own petition objecting to the Department’s issuance of the dock permit. Although the implementing legislation for the district requires that it be notified of any permit applications within the district, see eh.2000-412, § 5(b)(1), Laws of Fla., such notification of the permit is to allow JID to offer input. It does not give it standing to participate in a section 120.57 hearing which requires JID to have a substantial interest affected by the proposed agency action.

Furthermore, paragraph 7 of the agreement with the Board of Trustees of the Internal Improvement Trust Fund as quoted in the majority opinion reserves to the Board of Trustees the right to determine “whether or not any proposed uses by a third party are compatible with the uses authorized herein.” I interpret this to mean that it is for the Board, and not the JID, to determine whether a permitted use, such as a dock, is compatible. Thus, the Board of Trustees, not JID, has the substantial interest in a permit authorized over the submerged lands described in the agreement with JID.

      . “A ‘noticed general permit’ is a type of permit for a particular activity within specific parameters which has essentially been pre-approved by rule.” Wentworth v. State, Dep’t of Envtl. Prot., 771 So.2d 1279, 1280 n. 2 (Fla. 4th DCA 2000). The NGP in this case is governed by Florida Administrative Code Rule 62-341.427, which authorizes construction of a private single-family dock provided certain criteria are met. These criteria include the requirements that the structure not impede navigability.


author: TAYLOR, J.

text:
    Darry CHANEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1784.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Darry Chaney appeals his criminal conviction and sentence for possession with intent to sell cocaine within 1,000 feet of a church. He contends that the trial court erred in denying his motion to suppress the evidence obtained as a result of a warrantless search of his person. We agree and reverse.

Officer Kathleen Murphy of the Fort Pierce Police Department was the only witness who testified at the suppression hearing. Her testimony established the following: Officer Murphy was just leaving the Fort Pierce Police Department Substation when an unknown gentleman ap-proaehed her. The man told her that while he was working that day, repairing a two-story rooming house, he witnessed what he believed to be several drug transactions across the street at 1909 Avenue E. He told the officer that he saw several people drive up and walk over to a man, who, in exchange for money, gave those individuals some items. He told the officer he believed those items were drugs, although he did not specify the type of drugs. He did not describe the location as a known drug area and did not say that he knew or recognized any of the participants in the transactions.

The man described the scene as follows: a gray house with a chain link fence around it, and a black male wearing a red jersey shirt sitting in front of the house, accompanied by a black female wearing white. He said the couple had chairs set up inside the fence. He said he saw the male conduct several hand-to-hand transactions throughout the day and that he kept the “items” in the back pocket of his pants. The informant did not want to get involved and told Officer Murphy that he wanted to remain anonymous. Officer Murphy knew where he lived, however, and how to locate him.

Officer Murphy testified that, based on her experience as a police officer, she believed that the information she received was consistent with drug activity. She proceeded to the location with some backup police officers. When Officer Murphy arrived, she saw a gray house with a chain link fence directly across from the two-story rooming house. A black female wearing white and a black male wearing a red jersey were sitting outside on chairs. The officer did not observe any unusual behavior which would indicate drug sales or other criminal activity. Officer Murphy immediately approached the man wearing the red jersey, put her hands on the back of his pants, reached inside his pocket, and pulled out a large quantity of crack cocaine rocks. The man (appellant) was arrested and charged with possession with intent to sell cocaine within 1,000 feet of a church.

Appellant filed a motion to suppress the drugs. The trial court denied the motion to suppress, concluding that the information, which was relayed to the officer by a citizen informant who had observed several hand-to-hand transactions, was sufficient to establish probable cause.

Appellant first argues that the trial court improperly classified the person who provided the tip as a citizen informant rather than an anonymous tipster. He next argues that, even assuming that the tipster qualified as a citizen informant, the information he furnished the officer, at best, provided reasonable suspicion to stop appellant, not probable cause to arrest and search him. For the tip to establish probable cause, appellant argues, the officer must have corroborated it with independent evidence of criminal activity.

When we review a trial court’s ruling on a motion to suppress, we defer to the trial court’s determination of the historical facts leading up to the search. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, we review the trial court’s ultimate legal determination of probable cause de novo. Id.; Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

Probable cause is required for a warrantless search. See U.S. v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court established a “totality of the circumstances” test as the proper test for determining probable cause. Probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been committed. See Benefield v. State, 160 So.2d 706, 708 (Fla.1964); Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000).

In this case, the officer arrested appellant based on a citizen informant’s observation of multiple hand-to-hand transactions across the street from his worksite. The issue is whether the informant’s tip, standing alone, was sufficient under a “totality of the circumstances” standard, to give the officer probable cause to effectuate a warrantless search of appellant.

In Gates, the Supreme Court determined that in certain instances, a tip from a reliable informant can be sufficient to establish probable cause. The Court explained that the informant’s veracity, reliability, and basis of knowledge are all relevant considerations in the totality-of-the-circumstances analysis. Gates, 462 U.S. at 233, 103 S.Ct. 2317.

Information from a “citizen-informant” is at the high end of the tip-reliability scale. State v. Maynard, 783 So.2d 226, 230 (Fla.2001); see also State v. Talbott, 425 So.2d 600, 602 (Fla. 4th DCA 1982). It does not fall under the same scrutiny as information received from an anonymous tipster. See Austin v. State, 640 So.2d 1247, 1248 (Fla. 5th DCA 1994) (citing State v. Hadden, 629 So.2d 1043 (Fla. 2d DCA 1993)). Appellant argues that the informant in this case was merely an anonymous tipster because, among other things, the officer had never met him before and did not include any identifying information about him in her police report. However, as the trial court noted in its suppression order, the officer testified that she knew where the informant lived and that she could find him if necessary. See Maynard, 783 So.2d at 230 (“an informant’s actual name need not be known so long as her identity is readily discoverable”); State v. K.V., 821 So.2d 1127, 1128 (Fla. 4th DCA 2002) (same); State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (same). Moreover, the informant came to the police substation to speak to the officer and presented his information in person. This face-to-face communication allowed the officer to better evaluate his credibility. See Austin, 640 So.2d at 1248 (“The citizen source who provides identification and presents information in person can be better evaluated by a police officer than an unknown voice over the telephone.”). We find no error in the trial court’s decision to classify the tipster as a citizen informant and presume him to be a reliable source.

Probable cause, however, depends upon the content of the information, as well as its degree of reliability. Austin, 640 So.2d at 1248; Ford v. State, 783 So.2d 284, 285 (Fla. 2nd DCA 2001) (citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)).

A critical question in this case is whether the content of this particular tip was sufficient under the totality of the circumstances to provide Officer Murphy with probable cause to search appellant. Here, the citizen informant reported that he witnessed what he believed to be drug transactions based on seeing appellant hand items to several persons in exchange for money. Observations by an untrained layperson of multiple hand-to-hand transactions, standing alone, do not necessarily provide sufficient information for detention or arrest by a police officer. This is so because a police officer must filter the facts reported by a layperson through his or her own knowledge and experience in forming reasonable suspicion or probable cause. See Elliott v. State, 597 So.2d 916, 918 (Fla. 4th DCA 1992) (“Both the founded suspicion standard and the probable cause standard require the officer to interpret a factual foundation in light of the officer’s knowledge and experience.”).

Florida courts have considered several factors to be significant in determining whether observation of a hand-to-hand transaction created reasonable suspicion or probable cause. These factors include the experience and training of the officer in narcotics investigations, reputation of the location for drug activity, history of previous arrests from that site, prior knowledge of the suspects, quality and extent of surveillance, and detailed description of the event. See Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995) (discussing factors deemed significant in assessing whether founded suspicion or probable cause was established when a hand-to-hand transaction was observed); Wilson v. State, 707 So.2d 893 (Fla. 2d DCA 1998) (applying the Burnette factors and holding that officers lacked reasonable suspicion to stop the defendant who was talking to individuals and asking if they wanted “something”); Elliott v. State, 597 So.2d 916 (Fla. 4th DCA 1992) (holding that probable cause existed to arrest and search the defendant based on the observations of an experienced police detective, who saw an exchange of hands between a passenger in a vehicle and the defendant, who was standing outside the vehicle in an area known for heavy drug trafficking; further, the detective had seized a quantity of cocaine from the defendant only two weeks before); State v. Caicedo, 622 So.2d 149 (Fla. 3d DCA 1993) (holding that probable cause existed for defendant’s arrest and subsequent search incident to the arrest where police officer observed the defendant hand money to another man and then remove a small item from the man’s outstretched hand and place the item in his mouth); Knox v. State, 689 So.2d 1224 (Fla. 5th DCA 1997) (holding that probable cause existed to search defendant for narcotics where an experienced narcotics officer, who had received complaints of narcotics dealing in the vicinity, conducted two-hour surveillance, during which he observed defendant approach vehicles, lean into the vehicles, and pass something to the occupants, and then be seen with cash in hand, even though items passed to the occupants of the vehicles were too small to be seen from the officers’ hiding place); Revels v. State, 666 So.2d 213 (Fla. 2nd DCA 1995) (holding that probable cause existed when experienced police officers who were assigned to a certain house known for narcotics sales observed the defendant approach a car that pulled up, make a hand-to-hand exchange, and receive currency).

In this case, the record is devoid of any testimony that the location described by the citizen informant had any prior history of drug transactions or arrests or that the police officer had any prior knowledge of appellant’s involvement in drug dealing. In addition, the state presented no testimony about the extent of the officer’s training and experience in narcotics investigations. The officer merely testified that, based on her experience, she believed appellant was engaged in drug transactions. See Doctor v. State, 596 So.2d 442, 445 (Fla.1992) (stating that an officer’s experience and training are relevant to the extent that they provide specific facts from which the officer could reasonably conclude that a crime was being committed during the situation in question); Revels, 666 So.2d at 216 (noting that an officer with years of drug experience is “more likely to know what to observe and to distinguish innocent behavior from incriminating behavior”). Further, the officer was uncertain whether the citizen informant could actually see any drugs being exchanged for money, and she did not conduct any surveillance or acquire additional information to confirm the informant’s report of suspected drug activity. The officer corroborated the tip only as to innocent details, such as a physical description of the location and the suspects.

We believe that this case is factually analogous to Ford v. State, 783 So.2d 284 (Fla. 2d DCA 2001). There, a citizen informant told the police officer that she saw a black man approach an older white man in front of a store and the white man hand the black man money and receive something in return. The police stopped the white man and obtained his consent to a search, which revealed a cocaine rock. The second district held that detention of the defendant was not justified for several reasons: the officer did not observe the transaction and could not testify that the manner of exchange resembled a drug deal; the officer did not know the defendant or the other man who handed him something; and there was no testimony about the reputation of the area for drug transactions. In reversing the defendant’s conviction for possession of cocaine, the court noted that the tipster was a reliable citizen-informant, but considered these other factors in finding that the totality of the circumstances did not justify a stop.

In sum, the state failed to meet its burden to prove that Officer Murphy had probable cause to reach into appellant’s pocket and seize the contents therein. The citizen informant’s report of observing hand-to-hand transactions, standing alone, was insufficient under the totality of the circumstances to provide the officer with probable cause to search appellant. Accordingly, we reverse the order denying appellant’s motion to suppress and remand this cause for appellant’s discharge.

Reversed and Remanded.

STONE, J„ and COLBATH, JEFFREY J., Associate Judge, concur.


text:
    Edgar MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3910.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Edgar Martinez, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Edgar Martinez appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.800. In addition to seeking a reduction and modification of his sentence, Martinez attempted to assert a claim of ineffective assistance of counsel. He alleged that his guilty plea was entered upon his attorney’s misadvice concerning the consequences of entering his plea. According to Martinez, he did not receive the guidelines sentence within the lower guidelines range that he was promised.

Although we affirm the order of summary denial because of technical deficiencies in the motion, we do so without prejudice to Martinez filing a new motion that states a legally sufficient basis for relief under rule 3.850. The amended motion shall be filed no later than thirty days after the issuance of this court’s mandate and shall be limited to the allegation of ineffective assistance of trial counsel identified in this opinion.

WARNER, FARMER and TAYLOR, JJ., concur.


author: SHAHOOD, J.

text:
    Thorton Semone PETTWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-709.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Carey Haughwout, Public Defender, and Karen Kantner Cassidy, Special Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee,' and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Thorton S. Pettway, was charged with possession with intent to sell/deliver cannabis within 1000 feet of a school and possession of more than twenty grams of cannabis. Appellant appeals his conviction and sentence on the two counts charged after being found guilty following a jury trial.

Appellant raises four issues on appeal, the first three of which we hold to be without merit and affirm. As his fourth issue, appellant argues the trial court committed fundamental error in entering two judgments for possession of the same cannabis as violative of double jeopardy.

The State concedes, and we agree, that one may not be convicted twice for possession of the same cannabis. See Sims v. State, 793 So.2d 1153 (Fla. 4th DCA 2001). “Convictions for possession with intent to sell marijuana and simple possession of the same marijuana violate a defendant’s double jeopardy rights. Paccione v. State, 698 So.2d 252 (Fla.1997).” Sims, 793 So.2d at 1154.

Accordingly, we remand to the trial court with directions to vacate appellant’s conviction and sentence on the lesser of the two convictions, possession of more than twenty grams of cannabis.

Affirmed; Remanded with directions.

STEVENSON, C.J., and GROSS, J., concur.


author: BENTON, J.

text:
    Debi THORKELSON, Appellant, v. NY PIZZA & PASTA INC., and Aequicap Insurance Claims Services, Appellees.
    No. 1D06-2083.
    District Court of Appeal of Florida, First District.
    May 21, 2007.

      Mark D. Dickstein, Esquire, Hollywood, and Bill McCabe, Esquire, Longwood, for Appellant.
    Cindy R. Galen, Esquire and Daniel R. Goodman, Esquire of Eraclides, Johns, Hall, Gelman, Eikner & Johannessen, L.L.P., Sarasota, for Appellees.
   BENTON, J.

Debi Thorkelson appeals the final order denying temporary partial disability benefits she sought on account of disability attributable to an industrial accident that took place on August 26, 2004. She argues the judge of compensation claims erred in disqualifying her, pursuant to section 440.15(4)(e), Florida Statutes (2004), based on the fact that, after the injury, her employer discharged her for misconduct. We affirm.

In the order on appeal, the judge initially framed the question as “whether [Ms. Thorkelson] was terminated due to misconduct and/or for cause.” Clearly a claimant is not disqualified from workers’ compensation benefits just because she “was terminated ... for cause.” But the judge of compensation claims ultimately determined that Ms. Thorkelson was terminated for misconduct, and not for any other reason. See § 440.15(4)(e), Fla. Stat. (2004) (“If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”) (emphasis supplied). See also, e.g., Blodgett v. Fla. Unemplmt. App. Comm’n, 880 So.2d 814, 815 (Fla. 1st DCA 2004) (“An employee’s actions sufficient to justify discharge from employment do not necessarily constitute misconduct sufficient to bar recovery of unemployment benefits.”).

Despite finding “no question but that the claimant suffered a compensable lower thoracic and lower back injury” when she tripped and fell at her job, and despite accepting medical testimony that she was temporarily, partially medically incapacitated as a result, the judge of compensation claims determined that Ms. Thorkelson was disqualified from receiving temporary partial disability benefits, because “pursuant to Section 440.15(4)(e) ... [he] specifically f[ou]nd that the claimant was terminated from the post-injury employment based upon her misconduct.”

“Misconduct” is a statutory term. “Workers’ compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction.” Sunshine Towing, Inc. v. Fonseca, 933 So.2d 594, 594 (Fla. 1st DCA 2006). The Legislature added language, effective October 1, 2003, so that section 440.15(4)(e) of the Workers’ Compensation Law provided on the date of her accident (as it still provides):

(4) Temporary Partial Disability.—
(e).... If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section....

§ 440.15(4)(e), Fla. Stat. (2004) (typeface altered). See Ch.2003-412, § 18, at 3925, 3969, Laws of Fla. (adding the language quoted above to section 440.15(4)(e)). Section 440.02(18), Florida Statutes (2004), defines “misconduct”:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

§ 440.02(18), Fla. Stat. (2004). These provisions parallel similar provisions in the Unemployment Compensation Law, including section 443.101(l)(a), Florida Statutes (2004), which provides:

An individual shall be disqualified for benefits:
(l)(a) For the week in which ... the individual has been discharged by his or her employing unit for misconduct connected with his or her work....
2. Disqualification for being discharged for misconduct connected with his or her work continues for the full period of unemployment next ensuing after having been discharged....

Another provision of the Unemployment Compensation Law defines “misconduct” virtually identically to the way the Legislature has defined “misconduct” for workers’ compensation purposes:

“Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 443.036(29)(a-b), Fla. Stat. (2004). Our supreme court has “held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply. See Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958).” State v. Hearns, No. SC05-2122, 2007 WL 1215452, at *5, — So.2d -, - (Fla. Apr. 26, 2007).

Many of the “exact same words or phrases” appear in both of these statutes. None of the “tweaks” that cause slight differences suggest any difference in sense. The policy implications of the Legislature’s decision to use virtually the same definition of “misconduct” for workers’ compensation purposes as it chose to use for unemployment compensation purposes, are for the Legislature, not the courts. See Beshore v. Dep’t of Fin. Servs., 928 So.2d 411, 413 (Fla. 1st DCA 2006) (“ ‘[T]his court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968).”). Moreover, the Legislature’s use of a virtually identical definition of “misconduct” in the recent amendment to the workers’ compensation statutes as is used in the unemployment compensation statutes suggests that “the legislature must be presumed to have continued its approval” of the meaning of “misconduct” that has developed in the case law, “else it would have stated the contrary” or chosen to define “misconduct” in a different way. Sam’s Club v. Bair, 678 So.2d 902, 904 (Fla. 1st DCA 1996).

The unlikely contention that “[a]dopting the standard of the unemployment compensation law for purposes of workers’ compensation claims would allow review of a workers’ compensation award by the unemployment compensation Referee or Commission, which was never intended,” is well wide of the mark and wholly unpersuasive. Section 443.0315, Florida Statutes (2004), precludes any such outcome:

Any finding of fact or law, judgment, conclusion, or final order made by a hearing officer, the commission, or any person with the authority to make findings of fact or law in any proceeding under this chapter is not conclusive or binding in any separate or subsequent action or proceeding ... between an individual and his or her present or pri- or employer ..., regardless of whether the prior action was between the same or related parties or involved the same facts.

§ 443.0315, Fla. Stat. (2004). A judge of compensation claims is not bound by factual findings made, or legal conclusions drawn, in unemployment compensation proceedings (if any) involving the same claimant. This does not mean, however, that a judge of compensation claims is free to ignore the judicial construction of the definition of “misconduct” in the case law of which the Legislature was presumptively aware when it amended the Workers’ Compensation Law.

As to both statutes, whether “an employer has the right to terminate an employee’s employment and whether a terminated employee meets the disqualification criteria ... are separate issues.” McCarty v. Fla. Unemplmt. App. Comm’n, 878 So.2d 432, 434 (Fla. 1st DCA 2004) (internal quotation marks and citation omitted); Lyster v. Fla. Unemplmt. App. Comm’n, 826 So.2d 482, 484-85 (Fla. 1st DCA 2002). “Whether a claimant commits misconduct connected with work is a question of law [, but the] findings of fact [on which the legal question is based] must be accepted if supported by competent, substantial evidence.” Sauerland v. Fla. Unemplmt. App. Comm’n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006). “While a violation of an employer’s policy may constitute misconduct, '[Repeated violations of explicit policies, after several warnings, are usually required.’ ” Ash v. Fla. Unemplmt. App. Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004) (quoting Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001)) (footnote omitted). “A single, isolated act of negligence does not constitute disqualifying misconduct.” Id.; Lusby v. Unemplmt. App. Comm’n, 697 So.2d 567, 567-68 (Fla. 1st DCA 1997). But the evidence of record in the present case supports the finding that the conduct that led to Ms. Thorkelson’s firing included multiple instances of -willful insubordination. Compare Ash, 872 So.2d at 402 (“ ‘[T]he conduct complained of was, at most, an isolated incident of poor judgment that did not rise to a level of ‘misconduct,’ as the claimant was not acting willfully, wantonly, or in substantial disregard of the employer’s interest. See §§ 443.036(29), 443.101, Fla. Stat.’ ”) (quoting Cohen v. Fla. Unemplmt. App. Comm’n, 868 So.2d 664, 664 (Fla. 3d DCA 2004)); compare also McCarty, 878 So.2d at 435 (“While an isolated incident can be disqualifying, if sufficiently egregious, the single-incident cases ... involve unexcused, unequivocal, and deliberate disobedience. The present case is devoid of any evidence that Ms. McCarty deliberately or intentionally acted against her employer’s interests, even though a policy was violated. See Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000) (“[PJroof of the claimant’s violation of the employer’s known policy did not rise to the level of disqualifying misconduct connected with work. The employer cites ... cases in which a single act of misconduct was found as disqualifying. A common thread running through all of the cited cases is a finding, supported by competent substantial evidence, that the claimant acted in deliberate and intentional disobedience (in some instances, in flagrant disregard) of a supervisor’s order.”).”). Here the evidence also showed that she willfully and repeatedly acted in her own perceived interest in disregard of her employer’s express directives.

In sum, the judge of compensation claims did not err in determining that Ms. Thorkelson was terminated for misconduct, within the meaning of section 440.15(4)(e) as construed in light of relevant case law, including the unemployment compensation cases, or in denying on that account temporary partial disability benefits, penalties, interest, costs and fees.

Affirmed.

BARFIELD and POLSTON, JJ., concur.


text:
    Willie Jackson JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4274.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Willie Jackson Johnson, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the appellant’s motion is facially sufficient, and the trial court neither held an evidentiary hearing nor attached portions of the record indicating that identity was not an issue or that the DNA evidence would not exonerate the appellant, we reverse the trial court’s denial. See Schofield v. State, 861 So.2d 1244 (Fla. 2d DCA 2008).

REVERSED and REMANDED.

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Kevin L. PRIM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6312.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Kevin L. Prim, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion to modify his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari and deny the petition. See Platt v. State, 890 So.2d 502 (Fla. 1st DCA 2004); Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Larry PROSSER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6496.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Larry Prosser, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Larry Prosser is hereby afforded a belated appeal of the “Order Denying Defendant’s Construed Motions to Correct Illegal Sentence,” in case number 16-1997-CF-9330 in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    Steven NIXON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0370.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Steven Nixon, pro se, Petitioner.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Steven Nixon is hereby afforded a belated appeal of the order denying motion to correct illegal sentence in case number 97-171-CF in the Circuit Court for Suwannee County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


author: SILBERMAN, Judge.

text:
    Edward C. FLECK, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3060.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Edward C. Fleck appeals his judgment and sentence for attempted robbery, aggravated battery, and misdemeanor battery and contends that the trial court should have allowed him to represent himself at trial. Because the trial court did not use the correct legal standard in denying Fleck his right to self-representation, we reverse and remand for a new trial.

The Sixth Amendment grants criminal defendants the right to self-representation. State v. Bowen, 698 So.2d 248, 250 (Fla.1997) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The Bowen court held “that once a court determines that a competent defendant of his or her own free will has ‘knowingly and intelligently’ waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented.” Id. at 251. In Hill v. State, 688 So.2d 901, 905 (Fla.1996), the court emphasized that

a defendant does not need to possess the technical legal knowledge of an attorney before being permitted to proceed pro se. As the Supreme Court stated in Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2686-87, 125 L.Ed.2d 321 (1993), “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive ■the right, not the competence to represent himself.”

Similarly, Florida Rule of Criminal Procedure 3.111(d)(3) states, “Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent him or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.”

In Bowen, the supreme court noted the trial court’s finding that Bowen was not competent, “ ‘based on his high school diploma, to represent himself in a case of this nature.’ ” 698 So.2d at 249. The court observed that “[t]he record conclusively shows that Bowen ‘was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.’ ” Id. at 251 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). The court concluded as follows:

Where a competent defendant “knowingly and intelligently” waives the right to counsel and proceeds unrepresented “with eyes open,” he or she ipso facto receives a “fair trial” for right to counsel purposes. As for Mr. Bowen, no citizen can be denied the right of self-representation — or any other constitutional right — because he or she has only a high school diploma.

Id. at 252.

Here, after the jury had been selected, but before the jury had been sworn, Fleck requested a continuance, which the trial court denied. He then stated that he wished to represent himself. Upon questioning by the trial court, Fleck indicated that he did not graduate from high school but that he got his GED and could read and write. The court questioned him about his desire to represent himself and explained some of the pitfalls of self-representation. The court concluded, “I’m finding that you’re not competent to represent yourself. Sit down, I’m leaving the Public Defender in the case and we’re starting the trial. And your record’s protected if I’m wrong.”

Fleck argues that the trial court applied the wrong legal standard, focusing on Fleck’s competence to represent himself, rather than his competence to waive the right to counsel. The State responds that the trial court was justified in denying the request for self-representation because Fleck was attempting to delay and frustrate the proceedings. See Smith v. State, 677 So.2d 370, 371 (Fla. 2d DCA 1996) (recognizing that a trial court need not “ ‘allow a defendant to delay and continually frustrate his trial’”) (quoting State v. Young, 626 So.2d 655, 657 (Fla.1993)). The State also cites to Haram v. State, 625 So.2d 875, 875 (Fla. 5th DCA 1993), but in Haram, the court pointed out that the proceedings “had already stretched 17 months from arrest to trial” and that Har-am “had previously caused two attorneys to be discharged from his case.”

We cannot agree with the State’s argument. The trial court made no finding that Fleck was improperly attempting to delay and frustrate the proceedings, and it does not appear that Fleck had engaged in previous behavior designed to do so. Further, his responses to the trial court’s questions as to his desire to self-represent do not support such a conclusion.

Accordingly, we reverse Fleck’s judgment and sentence and remand for a new trial. Should Fleck wish to represent himself on remand, the trial court shall conduct a thorough Faretta inquiry and employ the proper legal standard of whether Fleck is knowingly and intelligently waiving the right to counsel.

Reversed and remanded.

STRINGER, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


author: ALTENBERND, Judge.

text:
    Archie FORTE, a/k/a Archie Forte, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2554.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Archie Forte appeals his judgment and sentences for one count of racketeering and one count of conspiracy to racketeer. Mr. Forte entered a negotiated plea of guilty to the charges. In exchange, the State dropped numerous charges against Mr. Forte and agreed to concurrent sentences of eight years in prison followed by ten years’ probation. After the judgment and sentences were entered in accordance with the plea agreement, Mr. Forte filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(¿). The circuit court addressed this motion with three alternative rulings, holding that the motion was untimely, that the pro se motion should be stricken as a nullity because it was not filed by counsel, and that the motion should be denied on the merits.

This motion was timely. See Haag v. State, 591 So.2d 614, 617 (Fla.1992) (holding that filings by incarcerated pro se litigants are deemed to be filed with the court on the date the prisoner provides the document to prison officials for mailing). Thus, the portion of the circuit court’s order finding the motion untimely was in error. Nevertheless, we affirm the portion of the circuit court’s order which held that the motion, which Mr. Forte filed pro se at a time when he was represented by counsel, should be stricken. See Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004). Because the motion was properly stricken, the court should not have alternatively sought to deny the motion on its merits. We thus affirm the judgment and sentences. The order on the motion to withdraw plea properly strikes the motion to withdraw plea and shall not be interpreted as an adjudication on the merits of any claim Mr. Forte may have to withdraw his plea by way of a motion for postconviction relief.

Affirmed.

SALCINES and WALLACE, JJ., Concur.