text:
    Timothy Christian BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3003.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      Amanda R. Jacobson of Jacobson, McClean, Chmelir & Ferwerda, Winter Springs, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Timothy Christian Blake, appeals from a judgment and sentence imposed on him after he entered a plea to the crime of introducing contraband into a county detention facility. At the time that he entered his plea Mr. Blake reserved the right to appeal a suppression issue. See rule 9.140(b)(2)(A)(i). The sole issue raised by him on this appeal is whether the trial court erred in denying the motion to suppress that was the subject of the reservation. We find no error and affirm.

The facts found by the trial judge after considering the evidence presented at the motion to suppress reflect that a law enforcement officer with the Seminole County Sheriffs Office while on patrol in the early morning hours observed Mr. Blake turn his truck off of a busy highway and into a parking lot between two closed businesses. Mr. Blake left his car and began walking toward one of the closed businesses. The officer pulled his patrol car into the parking lot and stopped in between one and two car lengths behind Mr. Blake’s vehicle, and at approximately a 120 degree angle. The officer activated an in-car camera, which confirmed this configuration. The officer testified that his car was not blocking Mr. Blake’s truck and that Mr. Blake could have left the parking lot. When Mr. Blake saw the police vehicle, he quickly returned to his truck.

The officer then illuminated his spotlight and was able to observe that three individuals were sitting in the truck. Subsequently Mr. Blake exited his truck and came toward the police officer, who by this time had also left his vehicle. The officer smelled a strong odor of marijuana and alcohol emanating from Mr. Blake, and noticed that Mr. Blake appeared to be nervous, and had heavy eyelids, bloodshot eyes, slurred speech.

According to the trial judge’s findings, the officer “asked for and received from [Mr. Blake] consent to search both [Mr. Blake’s] person and his truck.” The search resulted in the officer recovering drugs and drug paraphernalia.

Mr. Blake was charged with bringing contraband into a county detention facility, driving under the influence, possession of marijuana, and possession of drug paraphernalia. He moved to suppress the results of the search claiming that the officer executed an investigatory stop without probable cause. After his motion was denied, he reserved his right to appeal the suppression order and agreed to enter an open plea to the contraband charge, the only felony with which he was charged. The remaining misdemeanors were transferred to county court.

Mr. Blake contends that the police officer had no reasonable suspicion that he had committed, was committing, or was about to commit a crime, and was, therefore, not justified in making an “investigatory stop.” According to the appellant, when the officer placed his vehicle behind his truck and turned the spotlight/flashlight on him, the officer was conducting an investigation in the absence of illegal activity. Finally, Mr. Blake argues that he gave consent to the search of his person and truck because he was acquiescing to police authority.

The trial court in denying the motion to suppress, however, found and reasoned, as follows:

The evidence shows that the Defendant was free to leave the parking lot and terminate the consensual encounter. Instead, the Defendant exited his truck and made contact with [the police officer]. Sensing that the Defendant may be impaired, [the police officer] requested and received permission to search his truck and his person. Thus, [the police officer’s] actions were proper.

Based on the facts presented to us, and these findings of the trial judge, we find no error in the denial of the motion to suppress.

The ruling of a trial court on a motion to suppress comes to an appellate court clothed with the presumption of correctness, and under well-established law a reviewing court must interpret the evidence and reasonable inferences and deductions derived from the ruling in a manner most favorable to sustain the trial court. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999). Accordingly, while the standard of review to be applied to the trial court’s factual findings is whether competent, substantial evidence supports those findings, the application by the trial court of the law to the facts is reviewed de novo. See Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA), review denied, 935 So.2d 1220 (Fla.2006); Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999); see also McMaster v. State, 780 So.2d 1026, 1027 (Fla. 5th DCA 2001).

In Popple v. State, 626 So.2d 185 (Fla.1993), the Florida Supreme Court discussed the three levels of police-citizen encounters. According to the high court:

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s request or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not involved. [Citation omitted].
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. [Citation omitted].
While not involved in the instant case, the third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. [Citation omitted].

Id. at 186. Officers do not violate the Fourth Amendment by merely approaching an individual to ask if the person is willing to answer questions, provided that person is willing to listen. If, however, the officer phrases his or her inquiries as commands, this action would indicate that the individual was not free to leave, and that the encounter would lose its consensual character. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); S.L.R. v. State, 652 So.2d 978 (Fla. 5th DCA 1995).

Encounters are usually consensual where the officer does not display a weapon, touch the defendant without consent, use language that might indicate compliance was compelled, intimidate the defendant, or restrict the defendant’s freedom to walk away. Officers may during consensual encounters ask for names and addresses, inquire about the defendant’s business, or request a consent to search. See State v. Mitchell, 638 So.2d 1015 (Fla. 2d DCA 1994). Thus, a defendant’s refusal to listen to questions or to answer them does not, without more, furnish grounds for detention. In other words, in the absence of any indicia of coercion or intimidation, an officer’s questioning about criminal conduct or activity alone will not convert an otherwise consensual encounter into an unlawful seizure or detention. See State v. Poole, 730 So.2d 340, 342 (Fla. 3d DCA 1999); see also Williams v. State, 694 So.2d 878, 880 (Fla. 2d DCA 1997) (holding that while initial questions as to what defendant was doing behind a closed bar were permissible, subsequent request that defendant pull his waistband forward converted consensual encounter into detention).

Florida courts have consistently agreed that a law enforcement officer’s use of the emergency lights or takedown lights on a police vehicle when confronting an individual constitutes an investigatory stop of that individual, rather than a consensual encounter. The reason these citizen contacts are investigatory rather than consensual is that the use of emergency lights ordinarily leads the citizen to believe that he or she is no longer free to leave. For this same reason, positioning a patrol car to obstruct the path of a vehicle once it is stopped may well elevate a consensual encounter into an investigatory stop. See Koppelman v. State, 876 So.2d 618 (Fla. 4th DCA 2004); Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002); Baker v. State, 754 So.2d 154 (Fla. 5th DCA 2000); see also Errickson v. State, 855 So.2d 700, 701 (Fla. 4th DCA 2003).

Thus, in Hrezo v. State, 780 So.2d 194 (Fla. 2d DCA 2001), the defendant was parked alone in his vehicle in a public park at 9:00 p.m. The park had no posted hours of operation. A deputy parked his patrol car behind the defendant’s vehicle. The deputy testified that he intended to make a citizen’s contact to find out who was in the vehicle and why they were there. There was no suggestion that the officer had any reasonable suspicion of criminal activity. Before approaching the vehicle the deputy turned on the patrol car’s emergency lights and takedown lights so he could see inside the vehicle. When he approached the car, the deputy asked the defendant for identification, and shined his flashlight into the car’s interior. The officer recognized a glass tube inside the car as a narcotics pipe and arrested the defendant for possession of drug paraphernalia. The defendant was ordered out of his vehicle and handcuffed. After a search, cocaine was located and seized.

The trial court denied the defendant’s motion to suppress, ruling that the initial encounter was consensual. Our sister court in the Second District found, however, that this contact was not a consensual encounter because the deputy illuminated his emergency and takedown lights. The court noted that the use of such lights is typically regarded as an act that initiates an investigatory stop. It reasoned that an ordinary person would at that juncture assume that he or she was being stopped, at a minimum, for a traffic infraction. Notably, however, the court distinguished between the use by an officer of a spotlight and the use of emergency lights:

We emphasize that an officer’s use of a spotlight is not the same as the use of emergency lights. See State v. Wimbush, 668 So.2d 280 (Fla. 2d DCA 1996) (reversing suppression where officers pulled along side parked car and illuminated interior of car with a spotlight, seeing cocaine on driver’s and passenger’s faces; initial encounter held consensual, not stop).

Hrezo, 780 So.2d at 195. See also State v. Baez, 894 So.2d 115 (Fla.2004) (office6 engaged in consensual encounter where he came upon defendant’s vehicle and used flashlight to look inside observing defendant slumped over the wheel of his parked van); Oslin v. State, 912 So.2d 672 (Fla. 5th DCA 2005) (officer utilizing spotlight on two men who turned toward the light, observed the officer, and then turned away and resumed walking was not investigatory stop); Siplin v. State, 795 So.2d 1010 (Fla. 2d DCA 2001) (use of spotlight has been found not to transform a consensual encounter into an investigatory stop); State v. Boone, 613 So.2d 560 (Fla. 2d DCA 1993) (officer’s actions in shining flashlight in the direction of defendant did not transform the encounter into an unlawful stop); State v. Hughes, 562 So.2d 795 (Fla. 1st DCA 1990) (action of officers in approaching defendant’s parked vehicle and shining flashlight inside was not the functional equivalent of a stop).

In some instances, however, if a spotlight or flashlight is utilized in conjunction with other actions by an officer, a consensual encounter may convert into an investigatory stop. See Williams v. State, 874 So.2d 45 (Fla. 4th DCA 2004) (explaining that a reasonable person would not feel free to leave under circumstances where an officer shines a flashlight in his or her face, approaches with his hand on his weapon, and directs him or her to stand); State v. Newton, 737 So.2d 1252 (Fla. 5th DCA 1999) (a reasonable person would not feel free to leave where an officer approached defendant grabbing him by the collar, holding a flashlight to defendant’s face, and ordering him to open his mouth).

Consider now Mr. Blake’s purported consent to the search. Because the consent issue is often a mixed question of law and fact, two standards must be utilized on review. With respect to the historical facts surrounding consent, the record must support a trial court’s determination that a defendant has voluntarily consented to a search. There must be clear and convincing evidence that a defendant’s consent is not the product of unlawful police activity, coercion, or submission to authority. The trial court should evaluate the totality of the circumstances before deciding whether consent was freely and voluntarily given. On review, the appellate court’s application of the law to those facts, is de novo. See Woods v. State, 890 So.2d 559 (Fla. 5th DCA 2005); Morris v. State, 749 So.2d 590 (Fla. 5th DCA 2000).

In the instant case the initial actions of the officer seem to demonstrate nothing more than a consensual encounter. There was no “illegal stop.” No blue light or other show of police authority was utilized. Mr. Blake voluntarily left his truck and walked toward the officer. There is no evidence in the record that the officer ever gave orders to Mr. Blake or used any other coercive means to compel Mr. Blake to give him authority to search. Even though the officer admitted during cross examination to conducting “an investigation” when he approached Mr. Blake, the facts simply do not support a conclusion that the events amounted to an investigatory stop.

Once the two men met in the parking lot the circumstances changed. The officer, who was in his nineteenth year of law enforcement at the time, stated that he could immediately smell marijuana on Mr. Blake and noticed other physical signs of drug and alcohol use. It was only then that the officer asked for consent to search. At this point, however, the defendant’s consent was not required. We have held on many occasions that the mere possession of marijuana is illegal. Thus, when a police officer who knows the smell of burning marijuana detects that odor emanating from a vehicle or from a person who has recently exited a vehicle, he has probable cause to believe a crime has been committed and that such person has committed it. Because the officer has probable cause, he or she is authorized to arrest the person and then to conduct a warrant-less search. See State v. T.T., 594 So.2d 839 (Fla. 5th DCA 1992); State v. Jarrett, 530 So.2d 1089 (Fla. 5th DCA 1988); State v. Wells, 516 So.2d 74 (Fla. 5th DCA 1987); State v. Reeves, 488 So.2d 670 (Fla. 4th DCA 1986); State v. Bennett, 481 So.2d 971 (Fla. 5th DCA 1986). Compare Smith v. State, 904 So.2d 534, 537 (Fla. 1st DCA 2005).

We conclude, therefore, that there was competent, substantial evidence to support the findings of the trial court, and we conclude further that there was no error in the application by the trial court of the law to the facts in this case. Accordingly, we affirm.

AFFIRMED.

PLEUS, C.J. and TRAYNOR, J.M., Associate Judge, concur.

      . Blake, while at the county detention facility, was found to be in possession of a marijuana cigarette.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Luis HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1544.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.

      Luis Harris, Defuniak Springs, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the lower court’s order that struck his rule 3.850 motion directed to his original plea and judgment in case numbers 99-713 and 99-922. The trial court ruled that it did not have jurisdiction to consider the rale 3.850 motion because a direct appeal was pending before this court that challenged an order revoking Appellant’s probation. We have examined the issues in the probation revocation appeal and determined that they are unrelated to the issues raised in the rale 3.850 motion. Accordingly, we reverse the lower court’s order striking the motion and remand this cause for resolution on the merits. See Lindsay v. State, 842 So.2d 1057 (Fla. 4th DCA 2003).

REVERSED and REMANDED.

PALMER, TORPY and MONACO, JJ., concur.


text:
    Eric MALLON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1699.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Eric Mallon, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Eric Mallon appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion seeking to have an alleged discrepancy between the oral pronouncement of sentence and the written sentencing order resolved. Specifically, Mallon’s motion acknowledges that the written sentencing order imposed consecutive minimum mandatory terms on his two life sentences, but contends that when it orally imposed the sentence, the trial court actually imposed concurrent minimum mandatory terms. Accordingly, Mallon asserts that his sentences should be corrected to reflect their concurrent nature because the error is clear from the face of the record.

Mallon has raised a facially sufficient claim for rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. On remand, the trial court shall determine whether the written sentence conforms to the oral pronouncement. If they do, the trial court shall attach written portions of the record conclusively refuting Mallon’s claim.

REVERSED and REMANDED.

SAWAYA, TORPY and EVANDER, JJ„ concur.

      . "A rule 3.800(a) motion is the proper vehicle to address a discrepancy between the oral pronouncement of a sentence and the written order of sentence.” England v. State, 879 So.2d 660, 661 n. 1 (Fla. 5th DCA 2004); Berthiaume v. State, 864 So.2d 1257, 1258 (Fla. 5th DCA 2004).

      . Mallon relies on the trial court’s oral statement at sentencing that it was "going to adjudicate you guilty and sentence you to life in prison with a minimum mandatory of 25 years. That will be followed by 20 years of probation as concurrent on counts one and two.” Parenthetically, we note that the 20-year term of probation was stricken from Mallon's sentence in his direct appeal. Mallon v. State, 626 So.2d 1125 (Fla. 5th DCA 1993).


text:
    Ovil WINBURN, Jr., Appellant, v. EARL’S WELL DRILLING & PUMP SERVICE, Appellee.
    No. 5D05-3655.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 2006.
    Ovil Winburn, Jr., Ocala, Pro Se.

      Chester J. Trow, of Chester J. Trow, P.A., Ocala, for Appellee.
   PER CURIAM.

After a trial in the county court, resulting in an adverse judgment being entered against him, Ovil Winburn, Jr. filed a motion to disqualify the presiding judge. When the motion was denied, Mr. Winburn sought review in the circuit court by petitioning for a writ of prohibition. The petition for a writ of prohibition was denied, and Mr. Winburn now seeks review of that order. We affirm.

We agree with the circuit court that the disposition of this matter is controlled by our opinion in Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1215 (Fla. 5th DCA 2001), wherein we stated:

A motion to disqualify is legally sufficient if the facts alleged, assumed to be true, would cause a reasonable person to have a well-founded fear that he or she will not receive a fair trial from the assigned judge. State v. Shaw, 643 So.2d 1163, 1164 (Fla. 4th DCA 1994). The fear of judicial bias must be objectively reasonable. Id. The subjective fear of a party seeking the disqualification of a judge is not sufficient. Kowalski v. Boyles, 557 So.2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show personal bias or prejudice. Levine v. State, 650 So.2d 666 (Fla. 4th DCA 1995).

Reviewed in this light, the allegations made in Mr. Winburn’s motion for disqualification of the trial judge are insufficient. Likewise, the trial judge’s prior adverse ruling is not a legally sufficient ground upon which to base a motion to disqualify. Thompson v. State, 759 So.2d 650 (Fla.2000). Accordingly, the order denying prohibition is affirmed.

AFFIRMED.

PLEUS, C.J., GRIFFIN and ORFINGER, JJ., concur.


author: VILLANTI, Judge.

text:
    In the Interest of K.V., a child. R.V., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D06-533.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2006.

      David A. Dee, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee Department of Children and Family Services.
    Patricia M. Propheter, Orlando, for Ap-pellee Guardian Ad Litem Program.
   VILLANTI, Judge.

R.V., the Father, appeals the trial court’s order declaring his daughter, K.V., dependent as to him. Because the Department of Children and Family Services failed to present any evidence that the Father poses a present threat of harm to K.V., we reverse.

The facts at the adjudicatory hearing established that KV.’s mother (not a party to this appeal) had abandoned the family and that the Father and K.V. were living with the paternal grandparents. On August 21, 2005, there was an incident in the grandparents’ home resulting in the Father’s arrest for domestic violence and abuse against the grandmother. Several days later, while the Father was still in jail, the grandmother called the Department because she was no longer able to care for K.V. No criminal charges were filed against the Father.

At the adjudicatory hearing, the Father and the grandmother denied that any domestic violence had occurred on August 21. The Department presented the testimony of the responding sheriffs deputy, who testified as to what the grandmother had told him on August 21, and the testimony of the child protective services investigator, who testified as to what the grandmother had told her on August 24. Both the deputy and the investigator testified that the grandmother had told them that K.V. was present during the incident. The trial court found the Father and the grandmother’s testimony to not be credible and adjudicated K.V. dependent.

Section 39.01(14), Florida Statutes (2005), in pertinent part, provides:

“Child who is found to be dependent” means a child who ... is found by the court:
(a) To have been abandoned, abused or neglected by the child’s parent....
(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent....

“ ‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2). “Harm” is defined to occur when any person “[i]nfliets or allows to be inflicted upon the child physical, mental, or emotional injury.” § 39.01(30)(a).

Courts have held that domestic violence may constitute harm if it occurs in the presence of the child. See M.B. v. Dep’t of Children & Family Servs. (In re K.B.), 937 So.2d 709 (Fla. 2d DCA 2006), and cases cited therein.

However, the “presence” of the child must be something more than physical proximity. Instead, there must be some evidence that the child sees or is aware of the violence occurring. Further, for “harm” resulting from witnessing domestic violence to constitute “abuse,” the domestic violence witnessed by the child must result in some physical, mental, or sexual injury to the child. Moreover, in order to declare a child dependent, the parent’s harmful behavior must pose a present threat to the child based on current circumstances.

Id. at 711 (citations omitted).

Here, although the court found credible the hearsay testimony that the Father had committed domestic violence in the presence of K.V., there was no evidence that K.V. was aware that the violence occurred. Additionally, the Department presented no evidence that K.Y. “suffered any physical or mental injury as a result of witnessing the altercation or that the Father posed any current threat of harm to [her].” Id. Absent competent substantial evidence in the record to support the dependency adjudication, the adjudication cannot stand. See R.F. v. Fla. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000).

Because there was no competent substantial evidence to support the trial court’s finding of dependency as to the Father, we reverse.

Reversed.

FULMER, C.J., and WALLACE, J„ Concur.


text:
    Susan A. MORROW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4541.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2006.
    Susan A. Morrow, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

KAHN, BENTON and LEWIS, JJ., concur.


text:
    Anthony Martiz WHITEHURST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4648.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2006.
    Anthony Martiz Whitehurst, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Robert PIERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4590.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2006.
    Robert Pierson, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Keith WILLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4030.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2006.
    Keith Willey, pro se, Petitioner.

      Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, BENTON, and LEWIS, JJ., concur.


author: STONE, J.

text:
    Pamela CARVEL, as voluntary limited guardian for Agnes Carvel, Appellant, v. Betty GODLEY, as Co-Trustee of The Agnes Carvel 1991 Trust, Lawrence Newman, as Co-Trustee of the Agnes Carvel 1991 Trust, Ethel G. Reddy, Bank of New York Trust Company of Florida, and the Thomas and Agnes Carvel Foundation, Appellees.
    No. 4D05-203.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.

      Michael A. Dribin of Broad and Cassel, Miami, for appellant.
    Matthew Triggs and Stephanie Reed Traband of Proskauer Rose LLP, Boca Raton, and Hal Neier of Friedman Kaplan Seiler & Adelman LLP, New York, for appellees Betty Godley and Lawrence Newman.
    Juan C. Antunez of Stokes McMillan & Maracini, P.A., Miami, and Steven J. Fink of Orrick, Herrington & Sutcliffe, LLP, New York, for appellees The Thomas and Agnes Carvel Foundation.
   STONE, J.

Pamela Carvel, personal representative of the estate of Agnes Carvel (interchangeably “Pamela” or “the estate”), appeals two orders: (1) an order granting defendants/counterplaintiffs’ motion for summary judgment on their counterclaim seeking judicial approval of their account-ings, and (2) an order compelling payment of initial out of pocket attorney’s fees but denying payment for future submissions. The appellees, Betty Godley and Lawrence Newman, are the co-trustees of The Agnes Carvel 1991 Trust (trust). We reverse.

This appeal represents one small portion of a complex body of litigation between these and other parties, here and in New York. The issue before this court is one of first impression: whether a personal representative has standing to claim for a trust accounting as a beneficiary or just as a creditor, where the settlor and the estate are, essentially, the same party.

Timeline of instruments/convey anees, proceedings:

Ice cream magnate Thomas Carvel predeceased his wife Agnes in 1990. The couple was childless. Prior to his death, they executed mutual wills and a reciprocal agreement that restricted subsequent modifications and conveyances. The wills named the Tom and Agnes Carvel Foundation as residuary beneficiary. Thinking her first will was lost, Agnes executed a second will in 1990 with no changes. In 1991, Newman’s office prepared the trust documents for the revocable trust at issue here, and Agnes transferred substantial assets to fund it. The first section of the trust stated:

The Trustees shall retain such property, IN TRUST, for the following purposes:
(a) To pay any part or all of the income and such sums from or any part or all of the principal of the trust as the Trustees, in their discretion, from time to time determine for any reason whatsoever to, for, or on behalf of the Grantor. Any income not so paid shall annually be added to principal.
(b) On the death of the Grantor, to pay her funeral expenses, debts and the expenses of administering her estate, and to dispose of the remaining income and principal of the trust, including any property received by the trust as a result of the Grantor’s death pursuant to her will or otherwise, as provided in the other articles of this agreement.

The third section allowed the trustees to distribute the remaining trust res to the foundation after payment of income to Agnes for life and payment of all of her funeral expenses, debts, and expenses of administering her estate. The trust’s tangible personal property was to be distributed to Agnes’ relatives and friends.

Agnes made a third will in 1995, which was substantially different from her other wills and which named a different entity as residuary beneficiary, contrary to the estate plan she and her husband had initiated together.

Agnes’ niece, Pamela, as her voluntary guardian, originally brought the instant action in Florida court, in September 1995, seeking a trust accounting, damages for breach of fiduciary duty, removal of trustees, and injunctive relief. Her grounds were that the trust was paying no income to Agnes who was still alive, the trustees had been taking excessive commissions, had mismanaged trust funds and provided no accountings to Agnes, and made unsubstantiated distributions.

The trustees filed a counterclaim, seeking judicial approval of accountings made for the period of 1991 through 1994, releasing and discharging the trustees from any and all liability. Because the voluntarily submitted accountings addressed the main count of her complaint, in December 1995, Pamela moved for voluntary dismissal of her complaint without prejudice. This left her a counterclaim defendant in the only pending action in Florida. Pamela filed her answer, affirmative defenses, and objections to the counterclaim in January 1998, expanding the timeframe of ac-countings sought to 1996.

Agnes passed away in 1998. Litigation surrounding the Carvel estates continued both in Florida and New York, challenging the validity of the reciprocal wills agreement between Tom and Agnes. In Florida, the trustees filed a motion for summary judgment as to their counterclaim. In the motion, the trustees stated that Pamela had asserted objections only to the 1991-1995 accountings, a statement rebutted by Pamela’s inclusion of 1996 in her answer. Filing accountings up to the end of 2003 concurrently with this motion, the trustees asked that these be approved. More responses and replies were filed; Pamela’s answer expanded the timeframe of objected-to accountings to all past, present, and future distributions.

Three motions were heard at a hearing in November 2004: Pamela’s motion to compel payment of attorney’s fees, and the trusts’ motions for summary judgment and for a procedure to expedite determination and systematic payment of outstanding claims and obligations of the trust.

Counsel for the trust argued Pamela’s lack of standing. The foundation’s attorney stated that each of Pamela’s requests for expenses must be “carefully scrutinized,” showing detailed time records and services rendered, despite the fact that the very accountings for which approval was sought include none of this detail on the expense side. Another wrinkle was the request of counsel for the ancillary administrator of Agnes’ New York estate, who asked that his client be exempted from any claims procedure the trial court might impose. In other words, only Pamela, the domiciliary executrix, should have to succumb to the trial court’s restrictions on the trust-mandated payment of estate expenses.

Pamela’s attorney reiterated that all Pamela was asking was to reserve the right, if the estate expenses exceeded the monies still held in trust, “to look back at the Trust accountings for the purposes of determining whether there were inappropriate distributions and payments made in derogation of the rights” given to the estate by the trust instrument.

The trial court entered its order granting the summary judgment approval of the accountings from 1991 through the end of 2003, and another, compelling payment of initial out-of-pocket attorney’s fees but denying payment of future submissions. A third order, establishing a procedure for the expeditious determination of claims against the trust, is not at issue in this appeal.

Standing to maintain objections or assert claims for accountings of the trust

“Generally, one has standing to sue when he or she has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation.” Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996); Brown v. Firestone, 382 So.2d 654, 662 (Fla.1980). The trust instrument clearly and' unambiguously lists payment of Agnes’ debts at time of death and her estate claims and expenses as one of the two stated purposes of the trust. This provision is not at the discretion of the trustees. As a result, the estate, while not an income or residual beneficiary, is an intended beneficiary. The foundation’s remainder interest is contingent because it is predicated upon, the existence of property left in the trust after the specific condition precedent is satisfied. See TeGrotenhuis v. Rice, 744 So.2d 1057, 1058 (Fla. 4th DCA 1999).

“The question of whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.” Moyer v. Graham, 285 So.2d 397, 402 (Fla.1973). We know the purpose of the trust; it tells us in express terms. A known beneficiary is owed the same duty and is entitled to the same remedy as the party to a contract. First Am. Title Ins. Co. v. First Title Serv. Co. of the Fla. Keys Inc., 457 So.2d 467, 473 (Fla.1984); DeMay v. Dependable Ins. Co., 638 So.2d 96, 97 (Fla. 2d DCA 1994). Based on these general principles, the estate has standing to call for an accounting, just as Agnes herself would have.

This result is in accord with analogous principles, such as that intended third party beneficiaries of testamentary documents have standing to bring legal and accounting malpractice actions if they are able to show “that the testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.” Hare v. Miller, Canfield, Paddock & Stone, 743 So.2d 551, 553 (Fla. 4th DCA 1999); Espinosa v. Sparber, Shevin, Shapo, Rosen, and Heilbronner, 612 So.2d 1378, 1380 (Fla.1993); Passell v. Watts, 794 So.2d 651, 652 (Fla. 2d DCA 2001); Kinney v. Shinholser, 663 So.2d 643, 647 (Fla. 5th DCA 1995).

Further, section 731.201(21), Florida Statutes, defines an interested person, for the purposes of wills and trusts, as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary of the estate, the personal representative of the estate shall be deemed an interested person.” So Pamela, as Agnes’ personal representative, has standing in any proceeding affecting the estate’s rights. In Barley v. Barcus, 877 So.2d 42 (Fla. 5th DCA 2004), the Fifth District held that a widow/personal representative had standing, as an interested person, to file a motion for appointment of a trustee of a residuary trust for which she was not a trustee but a contingent remainder beneficiary.

Section 733.707(3), Florida Statutes, mandates payment of estate expenses by a revocable trust when the estate’s funds are insufficient:

Any portion of a trust with respect to which a decedent who is the grantor has at the decedent’s death a right of revocation, as defined in paragraph (e), either alone or in conjunction with any other person, is liable for the expenses of the administration and obligations of the decedent’s estate to the extent the decedent’s estate is insufficient to pay them as provided in s. 733.607(2).

Here, the trust was revocable. Even had the trust instrument been silent, the trust would have borne the responsibility of payment to the extent that the estate has no money to pay. Section 733.607(2), Florida Statutes, referenced in the statute above, states “the personal representative is entitled to payment from the trustee of a trust described in s. 733.707(3), in the amount the personal representative certifies in writing to be required to satisfy the insufficiency.” The record reflects that written demand for payment was provided to the trustees.

Propriety of summary judgment

Summary judgment is only appropriate in the absence of issues of material fact. Real Estate World Fla. Commercial, Inc. v. Piemat, Inc., 920 So.2d 704, 706 (Fla. 4th DCA 2006). Relevant factual issues remaining in dispute in the case are whether or not the trust has sufficient funds available to pay the estate’s claims as required by the decedent, whether or not Pamela has submitted written claims to the trust, and whether these have been paid. These disputes alone are sufficient to prevent summary judgment.

Going further, the trial court listed lack of standing and mootness as the legal reasons for denying Pamela’s objections. However, the estate/Pamela had standing. The record also reflects that she did not waive her objections.

In its order granting the summary judgment approval of the accountings from 1991 through the end of 2003, the trial court stated that Pamela’s answer applied only to accountings through 1995. The record shows that her subsequent pleadings make clear her ongoing objection, predicated on the need to preserve trustee accountability and to first pay estate claims, prior to distribution to the foundation.

The order’s effect on the estate is significant because judicial approval effectively defeats any trustee accountability. The estate’s interest, as intended beneficiary of a condition precedent, is superior to that of the foundation as remainderman.

The trust must be administered as written and intended. We reverse the summary judgment approval of the account-ings with instructions to utilize the trial court’s ordered procedure, recognizing the interests of all beneficiaries as described in this opinion, to resolve all outstanding estate claims. The estate’s ongoing attorney’s fees are to be subject to the same procedure.

POLEN and FARMER, JJ., concur.


author: ERVIN, J.

text:
    Gregory Charles SIZEMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2764.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   ERVIN, J.

Gregory Charles Sizemore appeals his two-year probationary sentence for the offense of possession of marijuana with intent to sell, entered following his conditional plea of nolo contendere, which reserved his right to appeal the lower court’s denial of his motion to suppress the evidence. We agree with appellant that the court erred in denying the motion to suppress for the reason that he could not be considered to have voluntarily consented to the search because the record clearly establishes he was effectively detained and acquiesced to the apparent authority of law-enforcement officers. As a result, we reverse the denial of the motion and remand the case with directions that appellant be discharged from custody.

On January 30, 2005, an Okaloosa County deputy stopped appellant for driving his vehicle with an inoperative tag light. In response to the officer’s request, appellant produced his driver’s license, the registration and automobile insurance, and while the officer was running a computer check on them, he noticed that appellant was reacting very nervously to the stop. He called for back-up from a canine unit and requested that the other officer’s vehicle be positioned behind that of appellant, thereby making it difficult for him to drive away from the scene.

After back-up had arrived, the officer concluded his investigation of appellant’s documents and determined they all were in order, whereupon he issued appellant a warning citation for the defective tag light, and told him he was free to go. While appellant was returning to his vehicle, the officer stopped him and asked whether he had anything on his person that would get him into trouble, such as weapons, or anything of that sort. Appellant then placed his hand in his right front pocket, and the deputy again asked the same question. Appellant answered that he “had some weed in his pocket,” and removed a “clear baggie,” which appeared to contain marijuana. Appellant was then arrested, given his Miranda warnings, and a search of the vehicle revealed several more baggies containing marijuana.

Following the initial hearing on the motion to suppress, the court concluded that because the officer’s decision to search was made before probable cause existed, the motion to suppress would be granted. Thereafter, the state filed a motion for rehearing based on the decision of the United States Supreme Court in Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), which upheld the vol-untariness of a defendant’s consent to the search of his automobile on facts showing that following a traffic stop for speeding, the officer ran a computer check on the defendant’s driver’s license, which disclosed the defendant had no previous violations, and the officer then issued a verbal warning to the defendant indicating that he could leave. As in the present case, before the defendant’s departure from the scene, the officer similarly asked the defendant whether he was carrying any contraband or weapons in his car, and when the defendant answered he was not, the deputy asked if he could search the car, which the defendant allowed, leading to the seizure of certain controlled substances.

In reversing the Supreme Court of Ohio’s ruling that the search resulted from an unlawful detention, the United States Supreme Court held that “ ‘once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.’ ” Robinette, 519 U.S. at 38-39, 117 S.Ct. 417 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). The Court thereupon reiterated what it had previously ruled in Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), that the voluntariness of a valid consent to search is to be assessed from a totality of the circumstances.

Based on Robinette, the trial court below granted the motion for rehearing and determined, notwithstanding its finding that the officer had “tricked” the defendant into consenting, that the consent was nevertheless voluntarily obtained, whereupon it denied the motion to suppress. Our standard of review of an order ruling on a motion to suppress is mixed. While a trial court’s findings are clothed with the presumption of correctness, “appellate courts must independently review mixed questions of law and fact.” Fitzpatrick v. State, 900 So.2d 495, 513 (Fla.2005) (citing Connor v. State, 803 So.2d 598, 608 (Fla.2001)). The trial court’s legal conclusions, moreover, as drawn from the facts, are reviewed de novo. See Tyson v. State, 922 So.2d 338, 339 (Fla. 5th DCA 2006).

In reaching its decision, the lower court overlooked several substantial distinguishing facts between those in the present case and in Robinette. In the latter case, immediately after the officer had indicated to the defendant he was free to leave, the only additional circumstance pertinent to the validity of the search was the officer’s inquiry whether he could search the defendant’s car. In contrast, by the time the officer asked a similar question in the present case, a back-up vehicle with a narcotics-trained dog had arrived, which was positioned pursuant to the instructions of the investigating officer in a way that impeded appellant’s egress from the scene. As appellant explained, he would have been required to perform an “S” movement in order to back his automobile from the area where he had been stopped.

It should not be overlooked that the Robinette decision was simply an application of the rule the Court had previously announced in Schneckloth for testing the voluntariness of a consent to search. While emphasizing that consent is a recognized exception to the warrant requirement, the Court in Schneckloth cautioned that a valid consent cannot be established through the use of coercive means, either explicitly or implicitly, and, “no matter how subtly the coercion were applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041. The Court continued its analysis with the following careful observations:

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a “voluntary” consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.

Id. at 229, 93 S.Ct. 2041.

Given the cautionary instructions of Schneckloth, of which the Robinette Court was well aware, we are convinced that the test approved in Robinette, as applied to the particular circumstances before it, does not encompass an officer’s coercive tactics, involving, as here, the presence of a canine unit at the scene and the positioning of the officers’ vehicles in such a manner as to make the defendant’s departure from the scene difficult, if not impossible; notwithstanding the fact that the officer no longer had any reasonable ground for the continued detention of appellant, once he had satisfied the purpose of the stop. Despite the officer’s statement that the defendant was free to go, we cannot conceive that a reasonable person in appellant’s position would have believed his freedom of movement was unrestricted. We therefore conclude that appellant’s consent to search cannot be objectively viewed as voluntary, and, in the absence of a volitional search, the continued detention of the defendant was improper, requiring that the seizure of the items be suppressed. See State v. Diaz, 850 So.2d 435 (Fla.2003). As in United States v. Santiago, 310 F.3d 336, 343 (5th Cir.2002), “the consent to search was not an independent act of free will, but rather a product of the unlawfully extended detention.”

REVERSED and REMANDED.

BENTON and BROWNING, JJ„ concur.

      . The trial court expressly ruled that the suppression issue was dispositive of all issues.

      . In so doing, the court added the following prescient comment: "And I wouldn't have my feelings hurt if you win your appeal.”


text:
    Thomas RUSSO, Petitioner, v. GERMAIN MOTOR COMPANY and North American Risk Services, Respondents.
    No. 1D06-3458.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Bill McCabe, Longwood, for Petitioner.
    Robert B. Bennett, and Windy L. Wilkerson of Sponsler, Bennett, Jacobs & Cris-tal, P.A., Tampa, for Respondents.
   PER CURIAM.

Petitioner has failed to carry his burden of demonstrating the existence of irreparable injury. Accordingly, his petition for writ of certiorari is dismissed. See Gour ley v. Szabo, 869 So.2d 765 (Fla. 1st DCA 2004); Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc).

DISMISSED.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Vincent MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5913.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Vincent Mobley, pro se, Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of all but one of the appellant’s claims.

The appellant entered a plea of guilty to two counts of armed robbery (counts four and five) in exchange for concurrent sentences of twenty-five years’ imprisonment with twenty-year minimum mandatory terms for discharging a firearm. The appellant asserts that his twenty-year minimum mandatory sentence for count four is illegal because he was not charged with “discharging” a firearm under section 775.087(2)(a)2., Fla. Stat. (2002). Rather, the appellant was charged with “possession” of a firearm in count four, which carries a minimum mandatory term of only ten years’ imprisonment under section 775.087(2)(a)1.

The grounds for enhancement of a sentence under 10-20-life must be charged in the information. See Jackson v. State, 852 So.2d 941, 944 (Fla. 4th DCA 2003); Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993). The information charged the appellant with possessing a firearm in count four and discharging a firearm in count five. Because the appellant was charged with possessing a firearm in count four, he could not be sentenced on that count for discharging a firearm. Jackson, supra; Gibbs, supra. As to count four, the appellant’s twenty-year minimum mandatory sentence is illegal because the information did not contain the grounds for enhancement. Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001). The fact that the appellant agreed to the twenty-year minimum mandatory sentence is irrelevant, as a defendant cannot agree to an illegal sentence. See Leavitt v. State, 810 So.2d 1032 (Fla. 1st DCA 2002). Further, the state cannot use the allegation of discharge of a firearm in one count to support the enhancement of another count. Gibbs, 623 So.2d at 555. Accordingly, we reverse and remand for the trial court to resentence the appellant on count four in accordance with section 775.087(2)(a)1. We affirm the denial of the appellant’s motion in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Adam C. HOOVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3391.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Adam C. Hoover, pro se, Petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the October 8, 2004, amended judgment and sentence entered in Nassau County Circuit Court case number 45-2000-CF-0607-AXXX-YX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


text:
    Hope BUSH as personal representative of The Estate of Jo Ann Halsell Poppe, Appellant, v. Billy WEBB, Jerry Halsell, Elizabeth Ricketts, and Rodney Halsell In Re The Estate of Jo Ann Halsell Poppe, Appellees.
    No. 1D05-5747.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Albert J. Stopka, III of Albert J. Stop-ka, III, P.A., Lynn Haven, for Appellant.
    Patrick J. Faucheux, Panama City, for Appellees.
   PER CURIAM.

Appellant, Hope Bush, as the personal representative of the estate of her sister (“the decedent”), seeks review of the trial court’s order directing her to pay the decedent’s funeral expenses. Appellant argues that the trial court erred in ordering her to pay the expenses because appellees’ funeral expense claims were filed more than two years after the decedent’s death and were, thus, untimely pursuant to section 733.710(1), Florida Statutes. Because we agree, we reverse the trial court’s order.

The decedent died on February 16, 2002. In her will, she bequeathed all her property to appellant and directed that her “just debts, funeral and administration expenses be paid as soon after [her] death as may be practical.... ” More than two years after the decedent’s death, appellees, the decedent’s children, filed claims against the estate for the payment of her funeral expenses. Appellant objected on the basis of section 733.710(1). The trial court ordered appellant to pay the expenses, which totaled $3,521.40. This appeal followed.

Section 733.710 Florida Statutes (2001), entitled “Limitations on claims against estates,” provides:

(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.
(2) This section shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.
(3) This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.

(Emphasis added). A “claim” is defined in part as a “liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense.” § 731.201(4), Fla. Stat. (2001) (emphasis added).

The supreme court has held that section 733.710 is a “jurisdictional statute of non-claim that automatically bars untimely claims and is not subject to waiver or extension in the probate proceedings.” May v. Ill. Nat’l Ins. Co., 771 So.2d 1143, 1157 (Fla.2000). The supreme court explained that section 733.710 “ ‘obviously represents a decision by the legislature that 2 years from the date of death is the outside time limit to which a decedent’s estate in Florida should be exposed by claims on the decedent’s assets.’ ” Id. (citation omitted).

It is undisputed in this case that appel-lees filed their claims against the decedent’s estate more than two years after her death. Pursuant to section 733.710(1), the claims were barred. Contrary to ap-pellees’ argument, the decedent’s directive that her estate pay her funeral expenses did not excuse their statutory obligation to file their claims against the estate within two years of the decedent’s death. See Marshall Lodge No. 39, A.F. & A.M. v. Woodson, 139 Fla. 579, 190 So. 749, 751 (1939) (“We do not think that the provision of the will directing the executors to pay all of the just debts of the testator had any effect upon the operation of the statute of non-claim.”). Were that not the case, each of the decedent’s creditors could have simply relied on the will and filed claims against the estate long after her death, thereby forever subjecting the estate to uncertainty. Such a situation would conflict with the purpose behind section 733.710(1).

Accordingly, we REVERSE the trial court’s order.

KAHN, BENTON, and LEWIS, JJ., concur.

      . Appellees Jerry Halsell, Elizabeth Ricketts, and Rodney Halsell are the decedent's children. Appellee Billy Webb is not.


text:
    Reginald McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1599.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.

      Reginald McKinney, pro se, Appellant.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In 1998, the appellant pled guilty to one count of aggravated battery causing great bodily harm and was sentenced to 11 years on probation, with a special condition that he serve 22 months in a county jail bed program. The appellant’s probation was subsequently revoked and he was sentenced to 96 months’ imprisonment. The appellant asserts that the scoresheet used to sentence him upon violation of probation was incorrect under Heggs v. State, 759 So.2d 620 (Fla.2000).

In order to assert a facially sufficient Heggs claim, an appellant must allege: (1) he was sentenced under the unconstitutional 1995 guidelines, and (2) his sentence could not be imposed under the 1994 guidelines without a departure. See Daniels v. State, 771 So.2d 57 (Fla. 2d DCA 2000). The appellant has alleged that he was sentenced under the unconstitutional 1995 guidelines as his crime was committed on January 25, 1997, within the Heggs window. See Trapp v. State, 760 So.2d 924 (Fla.2000) (holding that defendants who were convicted of crimes occurring between October 1, 1995, and May 24, 1997, and were sentenced under the unconstitutional 1995 guidelines, have standing to raise a Heggs claim). The state conceded in response to the trial court’s order to show cause that the appellant’s sentence would constitute an upward departure under the 1994 guidelines. The state also attached a 1994 scoresheet indicating that the appellant’s maximum sentence would have been 90 months’ imprisonment. Thus, it appears that the appellant is entitled to relief.

In its order denying relief, the trial court held that the appellant’s 1998 plea agreement demonstrates that the appellant specifically agreed to be sentenced under the 1995 guidelines. However, the plea agreement, filed before Heggs declared the 1995 guidelines unconstitutional, does not indicate that the appellant waived his right to be sentenced under the 1994 guidelines upon his violation of probation in 2004. The trial court failed to attach any other documents demonstrating that the appellant’s 96-month sentence could have been imposed under the 1994 guidelines, or that the sentence was imposed pursuant to a plea agreement that was not conditioned on the guidelines, or that the appellant waived sentencing under the guidelines. See Hall v. State, 789 So.2d 1052 (Fla. 5th DCA 2001) (holding that defendant was not entitled to Heggs relief where plea agreement was not conditioned on a guidelines sentence). The trial court also noted that the appellant’s original 96-month sentence was a true split sentence, wherein the entire prison term was suspended provided the appellant complete two years of community control and five years of probation. If the appellant’s sentence was originally suspended, he would not be entitled to relief. See Vause v. State, 803 So.2d 799 (Fla. 1st DCA 2001) (“having accepted the benefits of the suspended sentence, the appellant is now es-topped to challenge the imposition of the unsuspended term as violative of Heggs upon violation of supervision”). However, the trial court did not attach any documentation demonstrating this to be the case.

Thus, we REVERSE and REMAND for trial court to attach record documentation refuting the appellant’s claim or to grant relief.

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Hassan DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3062.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 2006.
    Hassan Davis, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Hassan Davis appeals the order denying his amended motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. The original motion did not contain a proper oath and should have been denied without prejudice. See Greenwood v. State, 802 So.2d 401 (Fla. 4th DCA 2001). The amended motion, which contained a sufficient oath, should have been addressed on the merits, and not denied as successive to the original motion. As such, we reverse the order denying the amended motion and remand to the lower court for consideration on the merits.

GROSS, HAZOURI and MAY, JJ., concur.


author: BROWNING, J.

text:
    Pablo BURGOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4207.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Pablo Burgos (Appellant) was charged with trafficking in cocaine in an amount of 28 grams or more and less than 200 grams pursuant to section 893.03(2)(a)4., Florida Statutes (2003), or any mixture containing 28 grams or more but less than 200 grams of cocaine pursuant to section 893.135(1)(b)1.a., Florida Statutes (2003). Appellant moved to suppress the drug evidence on the ground that as an overnight guest in the residence searched pursuant to a search warrant, he had a reasonable expectation of privacy in the luggage in the guest bedroom inside which the drugs were found. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Upon the denial of his motion to suppress, Appellant entered a no-contest plea to the charged offense and was adjudicated and sentenced accordingly. He expressly reserved the right to appeal the denial of his motion to suppress. See § 924.051(4) & —.06(3), Fla. Stat. (2003). Given the testimony that the officers discovered Appellant sleeping in the guest bedroom and that the closed luggage was next to Appellant, but that Appellant affirmatively denied any knowledge or ownership of the luggage searched, he lacked any legitimate expectation of privacy, and the trial court correctly found that Appellant lacked standing to change the search. See Olson, 495 U.S. at 96-97, 110 S.Ct. 1684; United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). We AFFIRM the judgment and sentence.

BARFIELD, C.J., and VAN NORTWICK, J., concur.


text:
    Robert Dion BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0910.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant seeks review of the trial court’s denial of his motion to suppress evidence seized as the result of a stop for a purported traffic infraction. Because no search warrant was issued, the state was obliged at the suppression hearing to demonstrate that the evidence sought to be suppressed was lawfully obtained. See State v. Setzler, 667 So.2d 343, 345 (Fla. 1st DCA 1995). In its brief, the state concedes that it failed to establish at the suppression hearing that the officer had any objective reasonable basis to believe that appellant had committed a traffic infraction when he made the stop. We agree. See United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir.2003). Accordingly, because the state failed to carry its burden, it was error to deny the motion to suppress. Because it is apparent that our holding is dispositive, we are constrained to reverse and remand with directions that the “Disposition Order” entered by the trial court following appellant’s conditional guilty plea be vacated, and that appellant be discharged. See Fla. R.App. P. 9.140(b)(2)(A)(i); Fernandez v. State, 917 So.2d 1022, 1024 (Fla. 1st DCA 2006).

REVERSED and REMANDED, with directions.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Sabir Abdul-Haqq YASIR, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D06-1516.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2006.
    Sabir Abdul-Haqq Yasir, pro se, Petitioner.
    Charlie Crist, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review by certiorari of the trial court’s orders (1) denying his petition for a writ of mandamus challenging a forfeiture of gain time in his prison disciplinary proceeding and (2) imposing a lien on his inmate trust account to cover court costs and fees. Because the trial court afforded petitioner due process of law and did not depart from the essential requirements of law when it denied his petition for a writ of mandamus, we deny that portion of his petition for a writ of certiorari on the merits. However, because, as respondent correctly concedes, the action in the trial court was a collateral criminal action as that term is defined in Schmidt v. Crusoe, 878 So.2d 861 (Fla.2003), we grant the petition to the extent it seeks to have the order placing a lien on his inmate trust account vacated. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    C.R., Mother of J.K., a Minor, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-242.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2006.
    Diana K. Simpson of Diana Kilpatrick Simpson, P.A., Ocala, for Appellant.
    Ralph J. McMurphy of Department of Children & Families, Wildwood, for Appel-lee.
    Patricia M. Propheter, Guardian Ad Li-tem, Orlando.
   PER CURIAM.

AFFIRMED. See A.G. v. Department of Children and Family Services, 932 So.2d 311 (Fla. 2d DCA 2006).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    Jeffrey Bruce HARTEL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2233.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.
    Jeffrey Bruce Hartel, Blountstown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the lower court’s order that denied his motion to correct sentences imposed in two cases. We affirm except as to the sentences imposed on counts two and three in lower court case number 1993-CF-10677. Because the sentences on those two counts exceeded the statutory máximums for second degree felonies, which felonies occurred in 1991 and 1992, the sentences are illegal under the then-applicable sentencing scheme. Stewart v. State, 755 So.2d 736 (Fla. 4th DCA 2000). Upon remand, the trial court shall resentence Appellant to the statutory maximum of fifteen years on each count.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    Eddie James HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1780.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2006.
    Eddie J. Harris, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Eddie James Harris appeals the denial of his sixth Rule 3.800(a) motion to correct an illegal habitualized sentence. Harris was convicted of strong-arm robbery, a second-degree felony, and sentenced as a habitual offender to 15 years in prison followed by 5 years’ probation. His conviction and sentence were affirmed on appeal. Harris v. State, 589 So.2d 914 (Fla. 5th DCA 1991). Subsequently, he was released on probation, which he violated, and was sentenced to 20 years as a habitual offender, with credit for time served. He has filed numerous pleadings since his incarceration. Once again he attacks his designation as a habitual felony offender. Harris’ belief that he is right, and that the trial court and this court are wrong, does not entitle him to continue to file motions on matters already adjudicated adversely to him. Pursuant to State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999), this court issued a show cause order. After receiving Harris’ response, we affirm the trial court and hold that Harris is barred from further pro se filings in this court. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); Carter v. State, 931 So.2d 1045 (Fla. 4th DCA 2006) (“Appellant’s repeated filing of frivolous appeals is diminishing this court’s ability to consider legitimate claims.”); see also Britt v. State, 931 So.2d 209 (Fla. 5th DCA 2006) (finding defendant’s pro se filings were frivolous, and abuse of process, and a waste of the taxpayers’ money); Glasco v. State, 914 So.2d 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants).

Accordingly, to conserve judicial resources, we prohibit Harris from filing with this court any further pro se pleadings concerning Eighteenth Judicial Circuit Court Case Number 05-1990-CF-18293-A. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Eddie James Harris, and any more pleadings regarding this case will be summarily rejected by the Clerk unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat.; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion Forwarded to Department of Corrections.

THOMPSON, MONACO and LAWSON, JJ., concur.


text:
    Arturo GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2804.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2006.
    Heather M. Gray of Bodiford & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colón, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Arturo Gonzalez appeals the judgment, sentence, and fines that were imposed on him after a jury found him guilty of lewd or lascivious molestation against a victim less than twelve years of age. Mr. Gonzalez argues that the trial court erred when it (1) refused to give a definition in the jury instructions for the words “genital” and “genital area”; (2) allowed the State to amend the information at the end of the State’s case-in-chief to reflect an offense date of October 8 until October 9, 2003; (3) allowed the State to elicit testimony and argue during closing arguments that Mr. Gonzalez had subsequent contact with law enforcement on an unrelated case; (4) denied his motion for a judgment of acquittal; and (5) added forty points to his sentencing worksheet for sexual contact with the victim. We find no reversible error in the trial court’s rulings on these matters, and we affirm Mr. Gonzalez’ judgment and sentence without further comment.

In a separate issue, Mr. Gonzalez argues that two separate fines of $50 and $65 for court costs should be stricken because they were discretionary costs and the trial court failed to orally pronounce them at sentencing. On this issue, we agree. The trial court assessed these fines as mandatory costs in accordance with section 775.083(2), Florida Statutes (2004), and section 939.185, Florida Statutes (2004), respectively. These statutes, however, did not take effect until July 1, 2004. Because Mr. Gonzalez’ offense date was October 8, 2003, the trial court should have assessed these costs in accordance with the statutes in effect at that time (i.e., section 775.083(2)(b), Florida Statutes (2003), and section 939.18, Florida Statutes (2003)), which required the court to conduct an inquiry into the defendant’s ability to pay the fine before imposing it.

Because the trial court imposed both discretionary court costs without conducting the required inquiry concerning Mr. Gonzalez’ ability to pay, we strike these costs. On remand, the trial court may reimpose the appropriate costs if it conducts the necessary hearing. See Stewart v. State, 916 So.2d 53, 54 (Fla. 2d DCA 2005); Waller v. State, 911 So.2d 226, 229 (Fla. 2d DCA 2005).

Affirmed in part, reversed in part, and remanded.

WHATLEY, SILBERMAN, and WALLACE, JJ., concur.

      . The 2004 version of section 775.083 replaced the 2003 version effective July 1, 2004. Ch.2003-402, § 117, at 3741-42, Laws of Fla.

      . The Florida legislature repealed section 939.18 effective July 1, 2004. Ch.2004-265, § 101, at 1026, Laws of Fla. It replaced this section, effective the same day, with section 939.185. Ch.2004-265, § 88, at 1022-23, Laws of Fla.


author: MONACO, J.

text:
    REPUBLIC SERVICES, INC., Appellant/Cross-Appellee, v. Eugene CALABRESE, Appellee/Cross-Appellant.
    No. 5D05-2335.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.

      Jerry R. Linscott, Robert W. Thielhehn, Jr., and Rafael R. Ribeiro of Baker & Hostetler LLP, Orlando, and Aaron W. Tandy of Gunster, Yoakley & Stewart, P.A., Miami, for Appellant/Cross-Appellee.
    John R. Hamilton and Eric J. Eisnaugle, of Foley & Lardner, LLP, Orlando, for Appellee/Cross-Appellant.
   MONACO, J.

This case involves a stock purchase agreement for the sale of certain businesses and land, as well as guarantees made by the seller. The trial court heard extensive testimony and considered the evidence adduced before it, and we lend the appropriate deference to the considered decision of the fact finder. After careful review of the record, we affirm the final judgment in all respects except one.

The trial court awarded pre-judgment interest to the appellee, Eugene Calabrese. The court calculated part of this amount by applying the statutory rate of interest, pursuant to section 687.01, Florida Statutes (2005). Here, however, the contract that was the subject of the law suit specifically called for such interest to be calculated at an annual rate equal to LIBOR, less fifty basis points. The LIBOR rate in this instance is smaller than the statutory rate.

The intention of the parties generally governs the interpretation of contracts. See Gables v. Choate, 792 So.2d 520, 523 (Fla. 3d DCA 2001), review denied, 817 So.2d 852 (Fla.2002). The best evidence of the intention of contracting parties is to be found in the plain language of the contract. See Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 910 So.2d 381, 383 (Fla. 5th DCA 2005). As the parties agreed to use the LIBOR rate, that is the rate that should govern. Moreover, section 687.01 specifically says that the statutory rate applies when the contract is silent on the matter. As the parties addressed this matter, their intention should be given effect. See Maryland Cas. Co. v. Fla. Produce Distribs., Inc., 498 So.2d 1383 (Fla. 5th DCA 1986); see also Apache Group, Inc. v. Ronald S. Friedman, CPA, P.A., 935 So.2d 539 (Fla. 3d DCA 2006).

Accordingly, we affirm the final judgment in all respects except for the calculation of interest. We reverse the amount awarded as interest to the appellee, and remand for recalculation of interest at the contract rate in accordance with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

PLEUS, C.J. and TRAYNOR, J. M., Associate Judge., concur.

      . London Interbank Offering Rate.


author: LAWSON, J. PALMER, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. E.G., Father of K.S.G. and E.T.G., Children, Respondent.
    No. 5D05-3668.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 2006.

      Charles D. Peters, Orlando, for Petitioner.
    Peter T. Hickey, Sanford, for Respondent.
   LAWSON, J.

The Department of Children and Family Services, (“Department”), seeks certiorari review of a written order denying a shelter petition. We have decided to hear this case en banc to resolve a conflict in our opinions regarding the appealability of orders that include the words “minutes” or “court minutes” in the title. In State v. Brown, 629 So.2d 980 (Fla. 5th DCA 1993), we held that a “court minutes/order” form signed by the judge and filed with the court clerk constituted a rendered, appealable order. In Dep’t of Corrections v. Bergman, 890 So.2d 281 (Fla. 5th DCA 2004), we held that a “court minutes/order” form signed by the judge and filed with the court clerk did not constitute a rendered order, implying that Brown had been disapproved by State v. Wagner, 863 So.2d 1224 (Fla.2004).

At the outset, we would note that the use of these combined “minutes/order” forms is widespread throughout the circuits encompassed within our jurisdiction. Such orders contain dispositive rulings, are signed by the judge and contain appropriate “order” language. They are certainly treated by trial courts and parties as enforceable, final orders with real world consequences. For example, in this case, the trial court’s order expressly denied the Department’s shelter petition and ordered the Department to return K.S.G. and E.T.G., minor children, to their parents. The Department apparently complied with the order, but timely sought review. Under Bergman, however, we would be required to dismiss the Department’s petition for lack of jurisdiction simply because the first page of the document is styled “Order/Minutes of Shelter Hearing Dependency Proceeding.”

The dilemma for litigants is obvious under the narrow view of appealability announced in Bergman. On one hand, they are handed a document which is: (1) labeled an “order” (even if also called something else); (2) clearly “dispositional;” and (3) signed by a judge. The litigant (or other party ordered to act) would be hard-pressed to do anything other than treat the document as an enforceable order upon which he or she must act. Yet, under Bergman, the document would not be sufficient to confer jurisdiction in a district court of appeal for review. At the very least, the party would first have to seek re-issuance of the “non-order/order” before seeking appellate review.

From a review of reported cases, it appears that the narrow approach taken by this court in Bergman regarding jurisdiction to review orders also bearing the words “minutes” or “court minutes” in the title is unique among the districts. Moreover, Wagner does not compel the approach taken in Bergman. Notably, the Wagner court did not overrule Brown or even expressly disapprove of it. Rather, footnote seven in Wagner suggests that a document entitled “order” (even if also entitled “court minutes”) that is signed by the judge and filed with the clerk is a rendered and appealable order.

Bergman and the cases from this district that followed it were animated by the desire to avoid issues of “inadvertent rendition” and the late filing of appeals discussed in Wagner, but this can be accomplished through appropriate design of the form and clear designation of the document as an “order.” In this case, for example, the circuit court uses a two-page form. “Court minutes” appear on the first page. The second page is titled only “order” and contains the dispositive provisions and judge’s signature. Alternatively, on an appropriate form, the trial court could simply circle, mark or otherwise signify that the document the court is executing is an order.

In the final analysis, however, jurisdiction ought to be controlled primarily by what the document does, not what it is called. The inclusion of the term “court minutes” in the title of an otherwise complete order does not make it any less an order or any less appealable. Therefore, we expressly recede from Bergman and hold that a document entitled “order” (even if also entitled “court minutes” or “minutes”) that is signed by the judge and filed with the clerk is a rendered and appealable order.

Having concluded that we have jurisdiction in this matter, we now turn to the merits. “Discretionary review by cer-tiorari should be afforded only where there is a departure from the essential requirements of law causing miscarriage of justice.” Ocala Star Banner Corp. v. State, 721 So.2d 838, 838-839 (Fla. 5th DCA 1998). In this case, the Department sought to shelter K.S.G. and E.T.G. based upon substantial evidence that their father was consistently abusing drugs and alcohol while at home supervising a four-year-old child and six-year-old child, and acting as their sole caregiver.

As soon as the hearing commenced on the shelter petition on September 27, 2005, the father’s attorney argued that the petition should be dismissed because the fact that the father tested positive for drugs was a concern for his probation, not a matter that would support dependency. The trial court denied the shelter petition remarking that the father had “more problems,” presumably in criminal court. The Department complains that the trial court erred in refusing to hear its evidence in support of the shelter petition and erred in concluding that the father’s drug abuse could not support a shelter order. The Department is correct in both respects. The allegations of the petition, if proved, would support a shelter order. The facts concerning the nature and extent of the father’s drug and alcohol use are conflicting. Also apparently in dispute are whether the father uses drugs in the presence of the children and whether his drug and alcohol use impair his ability to care for the children. The trial court erred in dismissing the petition out of hand. The order is quashed and the case remanded for further proceedings.

WRIT GRANTED; ORDER QUASHED.

PLEUS, C.J., GRIFFIN, THOMPSON, ORFINGER, MONACO, TORPY, and EVANDER, JJ., concur.

PALMER, J., dissents with opinion, in which SAWAYA, J., concurs.

PALMER, J.,

dissenting.

I respectfully dissent. The trial court’s ruling dismissing the instant shelter petition was memorialized on a combined “order/minutes” form. The form consisted of two pages. On page two, entitled “Order of Dependency Shelter/Review Hearing”, the trial court checked a box which stated: “The Department’s petition for shelter care is denied without prejudice, and the children are hereby ordered to be returned to their father and mother; the court finds that the reasons for the children’s removal have been remedied to the extent that the children’s physical, mental and emotional health would not be endangered.” The trial judge signed the form. DCF thereafter filed a petition with this court seeking certiorari review of said ruling.

In State v. Wagner, 863 So.2d 1224 (Fla.2004), our Supreme Court held that, for the purpose of determining the time period for when a certiorari petition must be filed under rule 9.100(c)(1) of the Florida Rules of Appellate Procedure, a court minutes form, even if signed by a trial judge, does not constitute a reviewable order and, therefore, the act of filing the minutes form does not amount to rendition for purposes of appellate review. In so ruling, the Wagner court imposed the requirement of entry of a formal written order which articulates the trial court’s decision and reasoning, rather than a notation on a court minutes form. The Court explained that the necessity for such an order is based on the need to avoid “inadvertent rendition” of reviewable orders. While discussing this need to avoid inadvertent rendition, the Wagner court expressly disapproved of this court’s opinion in State v. Brown, 629 So.2d 980 (Fla. 5th DCA 1993), wherein we undertook jurisdiction to review a minutes/order form which indicated that the trial court had granted a motion to suppress and ordered the defendant’s release. See Wagner, 863 So.2d at 1227 n. 7. Specifically, in footnote 7, the Court cited to Brown as an example of a situation where “inadvertent rendition” could result from the judge signing a court minute form and filing it with the clerk unbeknownst to the parties.

Since the issuance of the Wagner opinion, this court has properly taken a narrow view of exercising jurisdiction over rulings set forth in trial court forms where the term “court minutes” appears at the top of the form, and we have recognized the need to recede from our ruling in Brown as a result of the Wagner opinion. For example, in Department of Corrections v. Bergman, 890 So.2d 281 (Fla. 5th DCA 2004), this court reasoned that, even though the document at issue had ordered the Department of Corrections to pay for an interpreter, had been signed by the trial judge, and had been filed with the clerk, the form did not constitute a reviewable order because the document was a “court minutes” form.

This approach was later reinforced in Sigler v. State, 915 So.2d 687 (Fla. 5th DCA 2005). In that case, the trial court utilized a form entitled, “court minutes/order (evidentiary hearing)” to issue a ruling denying a defendant’s motion for post-conviction relief filed under rule 3.850 of the Florida Rules of Criminal Procedure. Although the trial court had lined through the words “court minutes” and had signed the document, this court dismissed the appeal for lack of jurisdiction, concluding that the form did not constitute a reviewable order.

Application of Wagner to the instant facts leads me to the conclusion that the instant court minutes form is not a reviewable order. In reaching this conclusion, I reject as unpersuasive the majority’s assertion that such combined minutes/orders are widely used in the circuit courts of this district. It is universally understood that jurisdiction is conferred upon a court by constitution or by statute and cannot be conferred by waiver, acquiescence, or agreement of the parties. Strommen v. Strommen, 927 So.2d 176 (Fla. 2d DCA 2006). Additionally, I disagree with the majority’s conclusion that “jurisdiction ought to be controlled primarily by what the document does, not what it is called” because, in my view, such an approach is directly contrary to the ruling in Wagner.

In sum, I conclude that, under Wagner, trial courts can not use court minute forms to accomplish what must properly be done by entry of a separate court order. Accordingly, I would dismiss the instant petition for writ of certiorari for lack of jurisdiction.

SAWAYA, J., concurs.

      . Rule 9.331(c) of the Florida Rules of Appellate Procedure authorizes a district court of appeal to hear a case en banc on its own motion. Subdivision (a) of the rule provides in material part that the court may consider an appeal en banc when “necessary to maintain uniformity in the court’s decisions.”

      . The second page is delineated "Page 2 of 2,” and is styled only as an "Order of Dependency Shelter/Review Hearing.”

      . In addition to containing a heading announcing the document as an "order,” these forms also include the language "Done and Ordered in_County, Florida,” immediately before the signature block.

      . By "dispositional” we mean that the order either disposes of a motion or orders someone to do or not do some act.

      . Of course, as held in Wagner, the document must be labeled as an order to give sufficient notice to the parties that the time for appeal is running. In fact, the Legislature may have addressed a similar concern in section 28.212, Florida Statutes, which prohibits a clerk of court from simply recording orders and judgments in the body of its court minutes.

      . As the court pointed out in Wagner, the better practice is for the judge to draft and execute his or her own separate order that clearly articulates the court's reasoning and ruling. However, we also recognize that in most jurisdictions trial courts simply do not have the time or resources necessary to go back to chambers and compose, edit, finalize and serve separate orders in the hundreds of routine matters that they must address day-in and day-out given their busy dockets. The use of combined order/minutes, which can be quickly prepared, signed and served in court, while the parties are present, appears to have developed as a necessary efficiency in our modem court system.