author: THOMPSON, J.

text:
    Bryan Keith WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4277.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    Rehearing Denied June 8, 2007.

      James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Bryan Keith Wilson appeals the denial of his motion to correct an illegal sentence. Wilson argues that his sentences violated Apprendi and Blakely and that the court erred by imposing costs for incarceration. We affirm in part and reverse in part.

Wilson was convicted in 1999 of 13 counts of sexual battery on a child by a person in parental or custodial authority and sentenced to 13 concurrent life sentences. His direct appeal of these convictions and sentences was voluntarily dismissed in September 1999. Wilson was later resentenced under Heggs receiving concurrent 319.25-month sentences for the first four counts and nine concurrent life sentences for the remaining counts. His scoresheet for the last nine counts reflected that, even without any points for sexual contact or penetration, Wilson scored at 460 points, which exceed the 363 points that permitted the court to impose life sentences. In addition, the court imposed costs of incarceration of $50 daily and $250,000. The trial court rejected Wilson’s contention that imposition of costs of incarceration violated double jeopardy, was vindictive, and duplicative.

Wilson’s convictions and sentences became final on 13 September 1999, when his direct appeal from his convictions and sentences were voluntarily dismissed. See Moss v. State, 943 So.2d 946, 947 (Fla. 4th DCA 2006). He was not entitled to relief under Apprendi and Blakely, because both were decided after his sentences became final. Langford v. State, 929 So.2d 598, 600 (Fla. 5th DCA 2006). Even if this court could consider the issue, no Appren-di error occurred. His nine life sentences were permissible, even absent sexual penetration points. As to his four 319.25-month sentences, courts deciding whether Apprendi error occurred before Blakely asked whether the sentence exceeded that permitted under the applicable version of section 775.082, Florida Statutes. See, e.g., Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007). Here, 319.25 months did not exceed the 30-year maximum sentence for a first degree felony. Wilson was not entitled to Apprendi relief.

Wilson also argues that the court lacked authority to impose the costs of incarceration because section 960.297, Florida Statutes (2003), provided that the State may pursue a separate civil action, but did not permit the costs to be imposed by the trial court here. He also contends that, even if the court could impose the costs of incarceration, the imposition of $50 daily and $250,000 was duplicative. Wilson is partially correct.

We disagree with Wilson’s interpretation of the statute. Section 960.292 details the procedure for imposing a civil restitution lien order, stating in pertinent part:

(1) Upon conviction, the convicted offender shall incur civil liability for damages and losses to crime victims, the state, its local subdivisions, and aggrieved parties as set forth in s. 960.293. The conviction shall estop the convicted offender from denying the essential allegations of that offense in any subsequent proceedings.
(2) Upon motion by the state ... or on its own motion, the court in which the convicted offender is convicted shall enter civil restitution lien orders in favor of ... the • state, its local subdivisions, and other aggrieved parties. The court shall retain continuing jurisdiction over the convicted offender for the sole purpose of entering civil restitution lien orders.

Though the lien is a civil remedy rather than criminal punishment, Goad v. Department of Corrections, 845 So.2d 880, 884-85 (Fla.2003), section 960.292(2) explicitly provides that the trial court may enter the civil restitution lien order. See McMurry v. State, 890 So.2d 494, 494-95 (Fla. 5th DCA 2004). Accordingly, Wilson’s procedural argument lacks merit.

We agree that Wilson is entitled to partial relief with respect to the costs of incarceration. Section 960.293 provides that:

(2) Upon conviction, a convicted offender is liable to the state and its local subdivisions for damages and losses for incarceration costs and other correctional costs.
(a) If the conviction is for a capital or life felony, the convicted offender is liable for incarceration costs and other correctional costs in the liquidated damage amount of $250,000.
(b) If the conviction is for an offense other than a capital or life felony, a liquidated damage amount of $50 per day of the convicted offender’s sentence shall be assessed against the convicted offender and in favor of the state or its local subdivisions.

Here, Wilson argues the court erred by imposing both $50 daily and $250,000 for costs. We agree. The Civil Restitution Lien and Crime Victims’ Remedy Act, which contains section 960.293, does not violate substantive due process because it bears a reasonable relationship to the legislative objective of alleviating the financial burden on the State resulting from the costs of incarceration. Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1372-73 (Fla.1998); see also § 960.29(3) & (4) (noting the Act rests on the principle of remediation, not punishment, and that the civil restitution liens are intended to assist the State and its subdivisions to recover the costs resulting from a convicted offender’s sentence). Because Wilson’s civil liability boils down to his responsibility to pay for his room, board, and other incarceration costs, see Goad, 845 So.2d at 885, Wilson is liable under section 960.293(2) for either $50 daily or $250,000, but not both. The State argues that these constituted separate costs and were not punitive, but this misses the point. Because the Act relates to the costs of incarceration, rather than constituting punishment, Wilson should not be double-charged. On remand, the trial court should strike that portion of its order that imposed $50 daily for the costs of Wilson’s incarceration.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings in accordance with this opinion.

PLEUS, C.J. and SAWAYA, J., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      . § 794.01 l(8)(b), Fla. Stat. (1998). The crimes were first-degree felonies.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    A.P. and V.H., Parents of N.P., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1327.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    Rehearing Denied June 8, 2007.
    Linda G. Sasser, St. Augustine, for Appellant.
    Anthony C. Musto, Hallandale Beach, for Appellee.
   MONACO, J.

We treat this appeal from a non-final order removing the child from the custody of its parents and reinstating protective supervision of the child as a petition for writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.040(c). See also In Interest of M.A., 609 So.2d 597 (Fla.1992); Dep’t of Health & Rehab. Servs. v. Honeycutt, 609 So.2d 596 (Fla.1992); S.H. v. Dep’t of Children & Families, 950 So.2d 1267 (Fla. 5th DCA 2007). Because notice of the evidentiary hearing that led to the order was both ineffective and defective, and thus departed from the essential requirements of law, we grant the writ.

It is unnecessary to develop in detail the background of this case. Upon the motion of the Department of Children and Families, the trial court entered an order reinstating protective services for the child of the appellants. On the same day the court appointed a single lawyer to represent both the father and the mother. The Department was fully and immediately notified of the name and address of the lawyer. By the time protective services were reinstated, however, the mother had admitted herself into a mental health facility. The father was employed, and was limited in his capacity to respond to orders on short notice.

Upon the child being taken into custody, the Department issued a notice to the parents advising them of that action and spelling out certain other rights and responsibilities. On the same day, the trial court issued an Order On Review of Shelter Petition For Temporary Custody in which it found that there was probable cause to believe that the child was dependent, placed the child in shelter care with a relative, set the terms and conditions of visitation, and delineated other matters concerning the shelter care of the child.

It appears from the Order on Review that an evidentiary hearing was held on the issues determined by the order on the same day as the issuance of the notice by the Department to the parents. The body of the order indicates that the mother was not present because she was hospitalized, and that a “good faith effort” was made to notify the father. There is no indication that the attorney for the parents attended the hearing.

On the next day the parents filed a petition to set aside and rehear the Order On Review because, among other things, the attorney for the parents asserted that she had not been notified of the hearing. The attorney indicated that the clerk sent her an email notice of hearing less than five hours before the hearing, but that the attorney was not in her office during most of the day, and did not see the email until after the hearing was completed. She asserted, as well, that “[t]he DCF Attorney had my cellular phone number and office number and failed to attempt to reach me by either means.” She also stated in her motion that the attorney for the Department was aware that the attorney for the parents would be at the Family Integrity Program offices dealing with another case at the very time the hearing was scheduled and would not be able to attend. She concludes by saying, “NO ONE EVER ATTEMPTED TO NOTIFY ME OF THE HEARING, although many people were aware of my whereabouts and unavailability.” The trial court nevertheless denied the motion.

Section 39.502, Florida Statutes (2006), requires notice in cases involving shelter hearings and hearings resulting from medical emergencies to be given in the manner “most likely to result in actual notice to the parents.” Of particular importance in the present case, Florida Rule of Juvenile Procedure 8.225(c)(5) indicates that in dependency and termination of parental rights proceedings, when service is “required or permitted to be made upon a party or participant represented by an attorney, service shall be made upon the attorney unless service upon the party or participant is ordered by the court.” The rule then defines the method of' accomplishing service and necessitates service by a means most likely to result in actual notice.

Generally, rule 8.225(c)(5) requires that service upon the attorney is made by “delivering a copy to the attorney or by mailing it to the attorney’s last known address.” Delivery means that the document must be either handed to the attorney or left in the attorney’s office with the person in charge. Additionally, notice can be left in a conspicuous place in the office or it may be transmitted by facsimile to the attorney’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and fax number, the number of pages transmitted and the recipient’s fax number. Where service is made by fax a copy must also be served by “any other method permitted by this rule.” If the party or participant is not represented by an attorney, then service of all pleadings or papers are to be upon the party or participant. See Fla. R. Juv. P. 8.225(c)(5)(D).

The Legislature has prescribed that parents and all other parties and participants be given “reasonable notice” of all hearings provided for under section 39.502. See § 39.502(1), (17), Fla. Stat. (2006). Our Supreme Court has instructed in a different context that “reasonable notice” means different things depending on the nature of the proceeding. See Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001). At the very least, however, this encompasses a reasonable time to prepare. See Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 606 (Fla. 5th DCA 2002). If parents are to be given reasonable notice, and if notice must be given to the attorney representing a parent, then the notice that is required to be given to the attorney must meet the test of being reasonable.

The standard of review to be applied by an appellate court in considering common law certiorari is whether the trial court’s order departs from the essential requirements of law. See Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). A fair reading of the statutes and rules leads us to conclude that the parents and then-attorney in the present case were unquestionably entitled to reasonable notice of the hearing. The attorney, however, got virtually no notice, and neither parent was in attendance. As the most basic considerations of due process are offended under these circumstances, we conclude that the court’s order departs from the essential requirements of law, and that certiorari relief is appropriate.

While we grant relief, we emphasize that we take no position with respect to the merits of the matter before the trial court. Rather, we focus only on the procedural shortcomings. Notice means real notice in accordance with the statutes and rules, and not a half-baked effort.

WRIT GRANTED, and case REMANDED for a new hearing.

GRIFFIN and THOMPSON, JJ., concur.

      . Although no mention is made in rule 8.225(c)(5) concerning service by e-mail, there are certainly occasions when this method might well be most likely to accomplish service, and it might well be considered as a supplement to the methods identified by the rule. The appropriate committees of the Florida Bar may wish to visit this issue in the future.


author: EVANDER, J.

text:
    J.D. NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1440.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Pursuant to a BOLO, Nettles’ motor vehicle was stopped by two Leesburg police officers. During the encounter, cocaine was found in Nettles’ shirt pocket. Nettles was charged with possession of cocaine and with violating his probation. He unsuccessfully moved to suppress evidence of the cocaine, alleging that his detention was unlawful. Nettles was ultimately found guilty of violating his probation and also convicted of possession of cocaine. We reverse.

At the motion to suppress hearing, the State had the burden to establish the validity of the investigatory stop of Nettles’ vehicle. Irons v. State, 498 So.2d 958 (Fla. 2d DCA 1986). The State presented the testimony of one of the police officers who detained Nettles. Officer Mack testified that at the beginning of his shift, he had been instructed to “be on the lookout” for an older, black male with dreadlocks, driving a green Mercedes. The suspect was wanted for questioning regarding an alleged aggravated battery or assault that had occurred a day or two prior. It is undisputed that at the time he was stopped, Nettles, a 49-year-old black man, had dreadlocks and was driving a green Mercedes.

Significantly, the State presented no evidence as to the source of the information provided to the Leesburg Police Department. We can only speculate as to whether the person(s) providing the Lees-burg Police Department with the description of the alleged perpetrator of the aggravated battery or assault was a reliable citizen informant, or an anonymous informant whose tip contained “no indicia of reliability.” A tip lacking any indicia of reliability does not provide reasonable suspicion to make an investigatory stop. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Reasonable suspicion is not established solely by the accuracy of the description. There is also a requirement that a tip be reliable in its assertion of illegality.

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster had knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Id. at 272, 120 S.Ct. 1375.

As noted in Young v. State, 841 So.2d 689, 690 (Fla. 2d DCA 2003), the J.L. decision may well require law enforcement agencies to modify their procedures regarding the issuance of BOLOs so that patrol officers know the nature of the source of the information provided to them. Alternatively, on certain occasions, the State may need to call witnesses in addition to the arresting police officer in order to establish the reliability of the information upon which the arresting police officer acted.

REVERSED AND REMANDED.

TORPY and LAWSON, JJ„ concur.

      . Indeed, in this case, the trial court was advised by counsel that information regarding the alleged aggravated battery or assault had not come from the alleged victim.

      . See also Rodriguez v. State, 948 So.2d 912 (Fla. 4th DCA 2007) (where an investigatory stop was invalid, in part, because the evidence failed to demonstrate whether the source of the BOLO received by the arresting officer was another police officer or, alternatively, some third party).


author: PER CURIAM.

text:
    Paula Elaine BENSIMON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1638.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Nancy Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Petitioner.

      Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Paula Elaine Bensimon is hereby granted a belated appeal from judgment and sentence in Bay County case number 2004-CF-0780. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The trial court is directed to appoint counsel for the petitioner in that proceeding if she qualifies for such an appointment.

PETITION GRANTED.

WOLF, DAVIS, and THOMAS, JJ„ concur.


text:
    Vanterpool RUDDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0548.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Robert Augustus Harper, Robert Augustus Harper, III, and Jonathan Mitchell Kester of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised five grounds in his motion. We affirm the summary denial as to four of those grounds without discussion. However, because the order and attachments do not show conclusively that appellant is entitled to no relief as to one ground, we are constrained to reverse the order to that extent.

In his fourth ground, - appellant claimed that his trial counsel had been ineffective in failing to advise him that his convictions for trafficking in cocaine, possession of cocaine and possession of cocaine while on the grounds of a county detention facility violated the double jeopardy clauses of the state and federal constitutions because all three charges arose out of a single episode and involved the same cocaine, thereby rendering his plea to those charges involuntary. This claim was legally sufficient on its face. See Upshaw v. State, 840 So.2d 1064 (Fla. 1st DCA 2003). The documents attached to the order summarily denying relief do not show conclusively that appellant is entitled to no relief on this claim. Accordingly, we reverse as to this (fourth) claim only. Should the trial court on remand again decide to deny the claim summarily, it shall attach to its order those portions of the record that show conclusively that appellant is entitled to no relief; otherwise, it shall hold an evidentia-ry hearing. We affirm the summary denial of all other claims raised.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Sylvia P. MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1775.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Rehearing Denied June 8, 2007.
    Sylvia P. Mathis, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The petitioner, Sylvia Mathis, seeks cer-tiorari review of the trial court’s denial of her Motion to Reduce Sentence, filed pursuant to rule 3.800(c), Florida Rules of Criminal Procedure. Because the trial court erroneously denied the motion as untimely, we grant the petition and remand for a ruling on the merits.

On November 9, 2005, Mathis was found guilty of violating her probation and was sentenced to five years in prison. Later, in two separate cases, she pled nolo con-tendere to multiple counts of theft and various similar charges. On January 30, 2006, the trial court sentenced her on these two cases to two concurrent terms of five years in prison.

On February 17, 2006, Mathis filed a Motion to Reduce Sentence under rule 3.800(c). She requested that the trial court impose the sentences in the two cases from January 30, 2006, to run concurrent and coterminous with the sentence in the 2005 case. The trial court denied the motion as untimely on March 2, 2006, finding that more than 60 days had elapsed between sentencing on November 9, 2005 and the filing of the motion on February 17, 2006. Mathis then filed another motion, seeking the same relief, on March 9, 2006. The trial court denied this motion, as well, stating in an order issued on March 13th that it had already denied the same motion on March 2nd. Mathis then filed the instant petition for certiorari review of the trial court’s decision in this Court.

Rule 3.800(c) provides that a trial court may reduce or modify a sentence within 60 days after the date the sentence is imposed. See rule 3.800(c), Fla.R.Crim.P. In the instant case, Mathis’ sentences were imposed on January 30, 2006. She filed her rule 3.800(c) motion less than three weeks later, and refiled it only three weeks after that. Thus, both times Mathis filed her motion well within the sixty-day window in which the trial court could modify her sentence. Therefore, we conclude the trial court departed from the essential requirements of law in denying the motion as untimely. See, e.g., Smith v. State, 471 So.2d 1347 (Fla. 2d DCA 1985); Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003); State v. Paulino, 696 So.2d 425 (Fla. 2d DCA 1997).

We grant the petition, quash the trial court’s orders of denial dated March 2nd and 13th, 2006, and remand for a consideration of the motion on the merits.

Petition granted, order quashed and cause remanded.

BROWNING, C.J., WEBSTER and PADOVANO, JJ., concur.


text:
    Jasper HARRISON, Petitioner, v. Patricia JOHNSON, et al., Respondents. Jasper Harrison, Petitioner, v. Patricia Johnson, Respondent.
    Nos. 1D07-0044, 1D07-0365.
    District Court of Appeal of Florida, First District.
    May 14, 2007.
    Jasper Harrison, pro se, Petitioner.
    Kris B. Robinson, Lake City, for Respondents.
   PER CURIAM.

In these consolidated proceedings, Jasper Harrison seeks prohibition relief with respect to two pending proceedings in the circuit court, alleging that the trial judge failed to rule on his motions for disqualification within the 30-day period established by Florida Rule of Judicial Administration 2.330(j). We expedited our consideration of these cases, and determining that the petitions established a prima facie basis for relief, issued orders to show cause in each. However, respondents have failed to file timely responses addressing petitioner’s claim. Accordingly, the petitions for writ of prohibition are granted, and on remand, a new judge shall be assigned to these proceedings. See Gore v. State, 939 So.2d 261 (Fla. 1st DCA 2006). To the extent the petition in case number 1D07-0044 also alleges that the trial judge departed from the essential requirements of law by denying petitioner his right to a jury trial in the proceedings at issue in that cause, we deny relief without prejudice to petitioner’s right to raise this issue with the successor judge.

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


text:
    FLORIDA MALL ASSOCIATES, LTD., etc., et al., Appellants, v. OLD DOMINION INSURANCE COMPANY, Appellee.
    No. 5D06-1776.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2007.
    Rehearing Denied June 8, 2007.
    Paul S. Jones and James P. Waczewski, of Luks, Santaniello, Perez, Petrillo & Gold, Orlando, for Appellants.
    Hinda Klein, of Conroy, Simberg, Ga-non, Krevans & Abel, P.A., Hollywood, for Appellee.
   PER CURIAM.

AFFIRMED. See Hilton Hotels Corp. v. Employers Ins. of Wausau, 629 So.2d 1064 (Fla. 3d DCA 1994).

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


text:
    CITY OF DELRAY BEACH and Gallagher Bassett Services, Inc., Appellants, v. Bobby WELLS, Appellee.
    No. 1D06-2719.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Rehearing Denied June 13, 2007.
    Steven R. Adler of Hayes, Schloss & Alcocer, P.A., Palm Beach Gardens, for Appellants.

      Bill McCabe, Longwood; and Gerry A. Rosenthal, West Palm Beach, for Appellee.
   PER CURIAM.

We find no error in the Judge of Compensation Claims’ (JCC) application of the firefighter’s presumption pursuant to section 112.18, Florida Statutes (2005). We also find no merit to the employer/carrier’s contention that the JCC required the employer to identify one single risk factor solely causative of claimant’s condition in order to rebut the presumption of section 112.18. We, therefore, affirm.

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


text:
    Debra GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3772.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Esq., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of her Motion to Vacate Sentence/Withdraw Plea. Appellant did not file this motion until after she had been sentenced. Accordingly, in order to obtain relief, appellant must demonstrate that a refusal to allow appellant to withdraw the plea will result in manifest injustice. See Williams v. State, 316 So.2d 267, 273-74 (Fla.1975); Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993). Because the trial court failed to address the only argument presented in appellant’s motion, we reverse the order of the trial court and remand for further consideration.

The trial court appears to have denied appellant’s motion solely because the Rules of Criminal Procedure fail to specifically provide a mechanism for relief under the facts of this case. While the trial court is correct in asserting that there is no rule of criminal procedure designed to address this particular factual situation, that conclusion, alone, is insufficient to leave appellant without access to relief. See Williams, 316 So.2d at 273-74. (holding that while the Florida Rules of Criminal Procedure fail to set forth requirements for the withdrawal of a plea after sentencing, a defendant should be allowed to withdraw such a plea when the defendant proves the withdrawal is necessary to correct a manifest injustice). On remand, the trial court must determine whether, under the facts of this case, appellant has established that the denial of her request to withdraw her plea will result in manifest injustice.

REVERSED and REMANDED with instructions.

KAHN, LEWIS, and HAWKES, JJ., concur.


author: PLEUS, C.J.

text:
    Gerardo BARRAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1747.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    Gerardo Barragan, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

The defendant appeals from the denial of his motion for post-conviction relief following an evidentiary hearing. The defendant raised numerous grounds alleging ineffective assistance of trial counsel. The trial court correctly denied relief as to all grounds, save for ground seven, on the basis that even assuming deficient performance, the defendant could not demonstrate any prejudice, i.e., that the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Jones v. State, 949 So.2d 1021 (Fla.2006).

In denying ground seven, the trial court stated that this claim was predicated on trial counsel’s purported ineffectiveness in failing to object at trial to the charge of attempted exposure of sexual organs. Trial counsel had moved to dismiss the charge, arguing that attempted exposure of sexual organs is a non-existent crime but failed to obtain a ruling. The trial court, in denying relief, concluded:

Conviction of a non-existent crime is fundamental error which can be raised for the first time on appeal. Jordan v. State, 801 So.2d 1032, 1034 (Fla. 5th DCA 2001). This Court is not required to determine whether there is such a crime. This claim was or could have been raised on direct appeal. Therefore, it cannot be relitigated by the filing of a motion under Fla. R.Crim. P. 3.850. See Medina v. State, 573 So.2d 293 (Fla.1990). Post-conviction relief should be denied as to this issue.

“[Ojne may never be convicted of a non-existent crime.” Achin v. State, 436 So.2d 30 (Fla.1982); see also Mundell v. State, 739 So.2d 1201 (Fla. 5th DCA 1999). The trial court correctly noted that conviction for a non-existent crime is fundamental error which may be raised for the first time on direct appeal, but the error can actually be raised at any time, even in a post-conviction context. Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006) (reversing denial of post-conviction relief where trial court erroneously ruled defendant was procedurally barred from raising claim that he had been convicted of nonexistent offense).

The trial court erroneously concluded that this claim could not be considered because it was or could have been raised on direct appeal. The denial of relief as to this ground is reversed and the trial court instructed to consider the merits of the claim.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GRIFFIN and LAWSON, JJ., concur.

      . The defendant's counsel at the evidentiary hearing, when pressed by the court as to how any of these purported deficiencies, if corrected, would change the outcome, replied, "I don’t have an answer for it,” other than to have another trial and ''see where it got.”

      . The record does not contain the operative judgment and sentence which form the basis for this conviction.


text:
    David NORMAN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4112.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    David Norman, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, Attorneys for Respondent.
   PER CURIAM.

Petitioner seeks a writ of certiorari overturning the circuit court’s denial of a petition for writ of mandamus and the imposition of a lien on his prisoner account. We find his argument is without merit and deny the petition without comment. We also deny his request to quash the order of indigency, as it was not properly presented below.

There is nothing in the record to indicate that Petitioner requested relief from the lower court’s imposition of a lien on his prisoner account. “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground ... must be part of that presentation.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). We have recently held that a proper motion is required in the lower court before we will consider an argument regarding whether a lien on a prisoner trust account was erroneously imposed. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

PETITION DENIED.

KAHN, POLSTON and THOMAS, JJ., concur.


author: ROBERTS, J.

text:
    UNC AVIATION SERVICES and Crawford & Company, Appellants, v. David HORNE, Appellee.
    No. 1D06-2086.
    District Court of Appeal of Florida, First District.
    May 21, 2007.
    Rehearing Denied June 13, 2007.
    Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellants.
    Douglas F. Miller of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee.
   ROBERTS, J.

The employer/carrier (E/C), UNC Aviation Services and Crawford & Company, appeals the award of attorney’s fees to the claimant, David Horne, which includes an award of attorney’s fees for the value of an indemnity for permanent, total disability (PTD) that was awarded in a previous proceeding. We reverse and remand.

The claimant was adjudicated PTD in a final order entered on December 14, 1998. On April 19, 2005, the claimant filed a Petition for Benefits requesting the authorization of a new pain-management specialist in his case.

As part of the pre-trial stipulation, the E/C asserted that the claimant “knowingly and intentionally provided false, incomplete, and/or inaccurate information in pursuit of benefits. Violation of Section 441.105 and 440.09(4), Florida Statutes.” At the final hearing, the judge of compensation claims (JCC) specifically stated that the misrepresentation defense was not properly before him and that he would not consider it in regard to the claimant’s Petition for Benefits. The JCC awarded the claimant’s petition and authorized a new pain-management specialist.

At the hearing on attorney’s fees, the JCC awarded attorney’s fees based on the present value of all future PTD benefits due to the claimant. This award was based on the theory that since the E/C sought to raise a misrepresentation defense, the claimant’s entire future PTD benefits were in danger of being forfeited under the provisions of sections 440.09 and 440.105, Florida Statutes (2005).

This was error. Because the JCC found that the defense was not properly raised and did not consider it, the claimant’s PTD benefits were never at issue and could not be a basis for attorney’s fees. Cf. Smith v. Smith, 927 So.2d 118 (Fla. 2d DCA 2006).

Under Valdes v. Galco Construction, 922 So.2d 252 (Fla. 1st DCA 2006), a claimant may be awarded attorney’s fees based on the value of future PTD benefits on a previous order, if the E/C files a petition for modification seeking to terminate benefits based on misrepresentation. We specifically are not addressing whether a properly raised affirmative defense of misrepresentation would put PTD benefits in danger of termination such that attorney’s fees would be appropriate for the whole value of those benefits.

We REVERSE and REMAND for further proceedings consistent with this opinion.

HAWKES and THOMAS, JJ., concur.


author: WELLS, J.

text:
    Gordon HALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-151.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Gordon Hales, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before WELLS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

The dismissal of appellant’s Petition for Writ of Habeas Corpus is affirmed without prejudice to his filing an appropriate motion in the Seventeenth Judicial Circuit. See Calloway v. State, 699 So.2d 849, 850 (Fla. 3d DCA 1997) (observing that a circuit court has no jurisdiction to review the legality of a conviction in another circuit); Leichtman v. Singletary, 674 So.2d 889, 891 (Fla. 4th DCA 1996).


text:
    Gary HOLLADAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-923.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Gary Holladay, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Everett A. OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-961.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Everett A. Oliver, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Malcolm ALBRITTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2147.
    District Court of Appeal of Florida, First District.
    May 24, 2007.
    Malcolm Albritton, 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.

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


text:
    Edward L. BROWN, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2319.
    District Court of Appeal of Florida, First District.
    May 24, 2007.
    Edward L. Brown, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

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


text:
    Evinson MARCELIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-72.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Evinson Marcelin, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   On Motion for Rehearing

PER CURIAM.

This Court grants the State of Florida’s motion for rehearing and withdraws our opinion filed April 4, 2007. We find the appellant’s 3.800 motion to be without merit and affirm the trial court’s order dated December 1, 2005.


text:
    Tony JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-196.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Tony Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

We affirm the trial court’s order, without prejudice, to any right Tony Johnson may have to raise this claim in a facially sufficient motion under Florida Rule of Criminal Procedure 3.800(a). See McCune v. State, 831 So.2d 248 (Fla. 2d DCA 2002).

Affirmed.


text:
    Joseph Fonville CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2480.
    District Court of Appeal of Florida, First District.
    May 30, 2007.
    Joseph Fonville Campbell, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and BENTON, JJ., concur.


author: PER CURIAM. .

text:
    Antwone T. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-281.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Antwone T. Smith, in proper person. ■
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM. .

Affirmed. See Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000); Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998).


text:
    Cleveland BROWN, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-471.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Cleveland Brown, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We deny the defendant, Cleveland Brown’s, petition for writ of mandamus wherein he seeks to compel the trial court to rule on his motion to correct sentence filed on or about November 17, 2005. The State of Florida has responded that it is unable to locate a copy of the motion. We therefore direct Mr. Brown to re-file his motion to correct sentence in case number 97-1309 in order that the trial court may timely rule on it.

Petition for writ of mandamus denied.


text:
    Ronald BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1417.
    District Court of Appeal of Florida, First District.
    May 31, 2007.
    Ronald Baker, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appeal is hereby dismissed for lack of jurisdiction. Luttrell v. Fla. Parole Comm’n, 578 So.2d 11 (Fla. 1st DCA 1991). Appellant’s motion to supplement the record is denied as moot.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    Anita EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1099.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Anita Edwards, pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 27, 2006, order denying motion for postconviction relief in Bay County Circuit Court case number 04-1843-H. 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).

PETITION GRANTED.

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


author: RAMIREZ, J.

text:
    TELEMUNDO NETWORK GROUP, LLC, Appellant, v. AZTECA INTERNATIONAL CORPORATION d/b/a Azteca America Network and Bolas, LLC, Appellees.
    No. 3D05-259.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.

      Morgan, Lewis & Bockius, and Christopher P. Hammon, and Erik W. Scharf, and Larissa C. Garriga; Ogletree, Deakins, Nash, Smoak & Stewart, and Angel Castillo, Jr., Miami, for appellant.
    Podhurst Orseck, and Stephen F. Ro-senthal; Akerman Senterfitt, and James M. Miller, and Julie E. Nevins, and Francisco A. Rodriguez, Miami, for appellees.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING

RAMIREZ, J.

We grant the motion for rehearing. Thus, we withdraw our opinion filed April 12, 2006, and substitute the following in its place.

Telemundo Network Group, LLC appeals the trial court’s final order dismissing its action against Azteca International Corporation and Bolas, LLC, on forum non conveniens grounds. We reverse because the claims against Azteca America and Bolas should not have been dismissed on these grounds.

I. The Parties and Their Ties to Florida

The parties involved are all United States corporations doing business in the United States. Telemundo is a Delaware limited liability company authorized to do business in Florida and headquartered in Hialeah, Florida. It operates a Spanish-language broadcast television network that provides programming, including soccer games, to stations in the United States. Azteca International Corporation, a Delaware corporation with its principal business office located in New York City, does business as Azteca America Network, a direct competitor of Telemundo. Azteca America also supplies sports programming to its United States affiliate television stations, including stations in Florida. Bolas, LLC is a Delaware limited liability company with its principal business office located in Tucson, Arizona. Bolas buys and sells rights to broadcast television programming.

In May 2001, Bolas entered into one-year written license agreement with Tel-emundo, giving Telemundo the exclusive broadcast rights to televise the regular season home games of the Jaguares in the United States. The Jaguares are a professional Mexican soccer team. Bolas and Telemundo renewed this agreement in 2002 and 2003. Pursuant to this license agreement and its renewals, Telemundo televised the Jaguares home games in the United States continuously from 2001 through December 2003. The 2003 license agreement provides that Florida law governs the agreement and that the state and federal courts of Miami-Dade County, Florida, have exclusive jurisdiction over Bolas and Telemundo for any litigation arising from this agreement. Telemundo recorded the 2003 license agreement in the public records of the United States Copyright Office in Washington, D.C. on February 2, 2004.

In June 2003, while Telemundo was broadcasting the Jaguares’ home games in the United States, a Mexican entity known as Chiapas Fútbol Club, S.A. de C.V. acquired ownership of the Jaguares. The sale of the team specifically included the agreement to honor the May 2001, three-year license agreement whereby Bolas owned the exclusive broadcast rights to televise the Jaguares’ home games in the United States through the end of 2004. On January 16, 2004, Telemundo notified Azteca America that Telemundo held the exclusive broadcast rights to all of the Jaguares home games in the United States through the end of the 2004 season.

Telemundo alleges that on January 17, 2004, Bolas failed to transmit to Telemun-do, in violation of the 2003 license agreement, the satellite signal for the Jaguares home game that Telemundo had already scheduled and promoted throughout the United States for that date. Consequently, Telemundo was forced to broadcast to its viewers nationwide a different program in that time slot. Telemundo immediately informed Bolas that it was in material breach of the 2003 agreement. Thereafter, Bolas failed to transmit any of the remaining Jaguares games to Telemundo until the team’s participation in the 2004 season ended on May 29, 2004, while Azte-ca America broadcasted all of the games in the United States. In February 2004, the Chiapas Fútbol Club notified Telemundo that on some prior date, Chiapas Fútbol Club had granted an exclusive license to T.V. Azteca to televise the Jaguares home games for the 2004 season, in Mexico, the United States, and other countries.

II. Telemundo’s Action in the Trial Court

Telemundo’s Amended Complaint against Azteca America and Bolas sought damages against Bolas for breach of the license agreement and alleged that Bolas failed to provide a satellite feed to Telem-undo for the Jaguares home games pursuant to the agreement. Telemundo also sought damages against Bolas that it allegedly sustained as a direct and proximate result of the alleged breach of contract by Bolas. Telemundo sued Azteca America for intentional and unjustifiable tortious interference with the contractual relationship between Telemundo and Bolas, and for conversion, alleging that, with actual knowledge of the existence of Telemundo’s claim to property rights to broadcast the Jaguares home games in the United States, Azteca America intentionally converted those rights to its own profit and to the detriment of Telemundo, by transmitting certain games in Florida and other places throughout the United States.

In response, Azteca America filed a motion to dismiss alleging forum non conve-niens, failure to join indispensable parties, and failure to state a cause of action. Bolas answered the amended complaint. The trial court agreed first to hear argument on Azteca America’s forum non conveniens grounds. After holding two hearings on the issue, the trial court granted Azteca America’s motion to dismiss on forum non conveniens grounds and entered a commendably thorough, twenty-page order addressing all the factors outlined in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996). The order, however, did not deal with Telemundo’s claims against Bolas separately, but rather dismissed the claims against Bolas along with the claims against Azteca America. Tel-emundo then filed this appeal.

III. Kinney Factors Analysis

In Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), the Florida Supreme Court held that a trial court’s ruling, granting or denying a motion to dismiss on forum non conveniens grounds, must be reviewed under an abuse of discretion standard. Kinney, 674 So.2d at 93-94. But as this Court stated in Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410-11 (Fla. 3d DCA 2005), “review of the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judges [sic] analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.” (citing Aerolineas Argentinas, S.A. v. Gimenez, 807 So.2d 111, 115 (Fla. 3d DCA 2002)(Sorondo, J., specially concurring))(citing Bacardi v. De Lindzon, 728 So.2d 309 (Fla. 3d DCA 1999), app’d, 845 So.2d 33 (Fla.2002)).

In Kinney, the Florida Supreme Court held that a trial court presented with a motion to dismiss on the basis of forum non conveniens must conduct a four-step analysis, later codified in Florida Rule of Civil Procedure 1.061(a), which provides that:

(a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

Fla. R. Civ. P. 1.061(a). The defendant attempting to dismiss the action on forum non conveniens grounds bears the burden of proof on each element of the Kinney analysis. Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 832 (Fla. 4th DCA 1997). Significantly for our case, the Florida Supreme Court stated in Kinney that “unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” Kinney, 674 So.2d at 89 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1946)). Dismissal of a case for forum non conveniens in cases where a domestic plaintiff is suing in its home forum should be granted only in “unusually extreme circumstances” where the court is “thoroughly convinced that material injustice is manifest.” SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.2004); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Applying each of the four Kinney factors codified in rule 1.061, we find that the trial court erred in granting Azteca America’s motion to dismiss, as well as in dismissing Telemundo’s claims against Bolas.

A. Adequate Alternative Forum

The trial court acknowledged that Telemundo could not assert its tortious interference claim against Azteca America in Mexico, as well as the fact that there is a forum-selection clause in' Telemundo’s license agreement with Bolas. Nevertheless, the court found that Mexico was an adequate alternative forum.

We conclude that the trial court erred in finding that Mexico was an adequate alternative forum for Telemundo to sue the appellees. Mexico does not recognize any of the causes of action that Tel-emundo could assert to obtain similar relief it would get in a Florida court. The Florida Supreme Court in Kinney made it clear that “the courts in the alternative forum must genuinely be open and available to potentially provide a convenient remedy for the injury or breach complained of, assuming the injury or breach is proved and otherwise meets the applicable legal requirements.” Kinney, 674 So.2d at 92; Bacardi v. Lindzon, 845 So.2d at 36 (Fla.2002). If this alternate forum does not exist, the court may not proceed with the Kinney analysis and is required to deny the motion to dismiss. McCarter v. Bigfoot Indust., Inc., 805 So.2d 1028, 1032 (Fla. 4th DCA 2001).

Azteca America conceded that Mexican law does not recognize the claim of tor-tious interference with a contract, as well as the fact that the Mexican legal system does not recognize any third-party actions relating to contractual rights. To meet its burden of showing an adequate alternative forum, Azteca America submitted declarations of a Mexican expert, Roberto Arochi-Escalante, which the trial court relied on in making its decision. A careful review of this expert’s declaration reveals that these substitute causes of action the expert identified amount to no remedy at all, and thus Azteca America failed to establish that an adequate alternative forum existed.

For example, Arochi-Escalante concluded that Telemundo could only sue Azteca America in Mexico for its acquisition, not its use, of the broadcast rights that Telem-undo acquired, and only if Azteca America acted wrongfully in acquiring the broadcast rights. The law in Mexico thus would require Telemundo to prove that both T.V. Azteca and Azteca America’s acquisition was wrongful. Arochi-Escalante declared that Telemundo had to prove that Azteca America engaged in “illegal acts” under a Mexican code provision to show its wrongful acquisition. However, Arochi-Esca-lante did not point to any Mexican precedent where a plaintiff alleging comparable facts was granted relief pursuant to the “illegal acts” provision of the Mexican code. In contrast, to assert a cause of action in Florida for tortious interference, Telemundo only has to show the elements of tortious interference, which does not require the plaintiff to prove the defendant committed an “illegal act.” See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985)(discussing the elements of a cause of action for tortious interference in Florida).

Arochi-Escalante further proposed that Telemundo could sue Azteca America in Mexico for “eviction” for its deprivation of Telemundo’s United States broadcast rights. However, according to Arochi-Es-calante, to do this, Telemundo would have to join various entities, including the Jag-uares owners and T.V. Azteca in the action. Thus, Telemundo could not sue Az-teca America in Mexico without also suing other Mexican entities. Furthermore, as Telemundo’s Mexican law expert, Victor M. Frias, stated, to prosecute successfully an eviction action in Mexico, a plaintiff must have been deprived of property by a final judgment. This is not the case here. In addition, a first-in-time buyer can bring an eviction action against only the seller. Consequently, Telemundo would not be able to bring an eviction action against Azteca America, but only against Bolas, the party that has the Miami-Dade County, Florida forum selection clause in its agreement.

In sum, the record clearly demonstrates that Telemundo’s remedy in Mexico amounts to no remedy at all. Consequently, the trial court erred in finding that Mexico was an adequate alternative forum for Telemundo to bring its claims against appellees.

B. Private Interests

Even were we to agree with Az-teca America and Bolas that they succeeded in demonstrating that Mexico was an adequate forum for Telemundo’s claims against them, we conclude that the private interests in the Kinney analysis also favor Telemundo. The second step in the Kinney analysis weighs the parties’ “private interests.” “Private interests” involve adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation. In addition, according to SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101 (11th Cir.2004), the federal Eleventh Circuit “ ‘require[s] positive evidence of unusually extreme circumstances, and should be thoroughly convinced that material injustice is manifest before exercising any such discretion as may exist to deny a United States citizen access to the courts of this country.’ ”.

Here, the trial court did not find that all the relevant factors of private interest favored the alternate forum, weighing in the balance a strong presumption against disturbing Telemundo’s initial forum choice. What the trial court did find was that “[fjrom the standpoint of witness and document availability and inconvenience to the parties,” the private interests were in equipoise. However, the trial court then found that “the risk of inconsistent judgments should this case proceed in Florida tips the private interest in Azteca America’s favor for dismissal on forum non conveniens grounds.” Basically, the trial court believed this one factor outweighed the heavy presumption that should be accorded to the plaintiffs home forum.

Appellees have cited no Florida case to support the position, nor have we found one, where a local plaintiff suing a local defendant has had its case dismissed based on forum non conveniens grounds where a defendant has alleged the possibility of inconsistent judgments or the possible need to implead a third party. To find that the appellees’ assertion constitutes “unusually extreme circumstances” here would mean that all a United States defendant would have to do to defeat a plaintiffs local choice of forum is to assert that a foreign third party might be potentially liable to the defendant for a breach or tort. This would fly in the face of Kinney’s “strong presumption” in favor of a plaintiffs choice of forum. Kinney, 674 So.2d at 91.

Moreover, it appears that there is no need to implead Mexican third parties to decide Telemundo’s claims. Appellees argued to the trial court that the “ownership” issue had to be decided to resolve Telemundo’s action in Miami. This argument focuses on the misplaced idea that the central issue of Telemundo’s claims was ownership of the broadcasting rights in the United States. It assumes that to prove ownership, third-party Mexican entities have to be parties in the action. As Telemundo demonstrated, the documents that Telemundo and Azteca have already presented to the trial court indicate that the original owner of the rights sold the rights to Bolas. Bolas then sold them to Telemundo, before Azteca America claims to have acquired any competing rights. The evidence established that Azteca America had actual knowledge of Telemun-do’s ownership of the broadcast rights before it converted them to its use and transmitted the soccer games. The trial court itself acknowledged that it would not be “impossible to accurately determine what the Mexican law is on all the issues in this case.” There are no factual disputes about any events occurring in Mexico which would affect the outcome of the ownership issue, if, in fact, Telemundo’s claims required that issue to be resolved.

Additionally, the cases cited by the trial court in its order regarding this issue are distinguishable. As Telemundo correctly points out, this is not a case where third parties not involved in the litigation may be fully or partially liable to Telemundo for the claims Telemundo raises against Azteca America and Bolas. The wrongs that Telemundo alleged Azteca America and Bolas committed are separate and independent of any wrongs that third-party Mexican entities may have committed. The trial court specifically acknowledged this fact.

Courts have found that the ability to implead may be taken into account, but it should not overrule a plaintiffs right to sue in the United States. See Sun Trust Bank v. Sun Int’l Hotels, Ltd., 184 F.Supp.2d 1246, 1265 (S.D.Fla.2001); J.I. Kislak Mortgage Corp. v. Connecticut Bank & Trust Co., N.A., 604 F.Supp. 346, 348 (S.D.Fla.1985). Here, even if Azteca America or Bolas were unsuccessful in joining other Mexican third parties, they have not demonstrated that this would result in substantial prejudice to them. The appellees could still argue at trial in Miami that Telemundo’s harm was caused by acts of other Mexican entities, and, should they choose, they could still pursue a lawsuit in Mexico against those Mexican third parties.

The trial court recognized in its order that “dismissal of a case for forum non conveniens in cases where a domestic plaintiff is suing in its home forum should be granted only in ‘extreme circumstances’ where the court is ‘thoroughly convinced that material injustice is manifest,’ ” citing to SME Racks and Piper Aircraft Co. v. Regno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). We believe the trial court erred in not affording Telemundo the strong presumption regarding its forum choice required under the law. Because the private interests here are in favor of Telemundo, the claims against appellees should not have been dismissed.

C. Public Interests

The third element of the Rule 1.061 test is if the balance of private interests is at or near equipoise, the court must further find that factors of public interest tip the balance in favor of trial in the alternate forum. Fla. R. Civ. P. 1.061(a)(3). We agree with Telemundo that even if we were to side with the appellees on their adequate alternative forum and private interests analysis, the public interests favor Telemundo’s choice of forum.

Generally, the public interest factors inquiry focuses on “whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial time and resources to it.” Kinney, 674 So.2d at 92. Here, each of the parties involved is a United States corporation. The dispute involves United States broadcasts rights, registered in the United States under United States copyright law. Telemundo is a Florida corporation, based in Hialeah, Florida, that is seeking to enforce its contractual rights that were breached by Azteca America and Bolas through actions these parties took against Telemundo in the United States. Telem-undo’s injuries occurred mainly in Florida. Telemundo is also seeking to prevent tor-tious interference in its Florida contract by actions that occurred in Florida, as well as throughout the rest of the United States. Bolas entered into a contract with Telem-undo stating that Florida law was controlling, agreeing to Florida jurisdiction, and waiving any challenge to Florida as a forum. The public interests here favor litigation in Florida, and Mexico’s interests regarding television broadcasts in the United States is, at best, secondary. Florida’s interest in protecting its citizens from breach of contract and tortious actions outweigh any alleged interest of the Mexican courts in determining ownership issues. Accordingly, we conclude that the public interests favor Telemundo’s choice of forum.

D. Undue Inconvenience or Prejudice

Finally, the last element of the Kinney analysis considers the prejudice or inconvenience of Telemundo having to refile the case in Mexico. We find that this factor did not support dismissal of Telem-undo’s action against the appellees.

Telemundo has no presence in Mexico. If it was required to refile this case in Mexico, it would have to implead up to ten parties in Mexico, which would require service of process on these parties. Tel-emundo would have to retain Mexican lawyers and litigate in Spanish. Furthermore, by filing a lawsuit in Mexico, Tel-emundo would subject itself to counterclaims by the new Mexican entities that it sued.

Florida courts must ensure that “the remedy potentially available in the alternative forum does not become illusory.” Kinney, 674 So.2d at 90 (Fla.1996). As Telemundo points out, cases where courts find that there is little or no inconvenience or prejudice to the plaintiff are often cases where the plaintiff is not a resident of its chosen forum or where the plaintiff conducts business in the alternative forum. See, e.g., Tananta v. Cruise Ships Catering & Servs. Int’l., N.V., 909 So.2d 874, 878 (Fla. 3d DCA 2004); Membreno v. Costa Crociere, S.p.A., 347 F.Supp.2d 1289, 1298 (S.D.Fla.2004). This is not the scenario we have here. We thus conclude that there is a great inconvenience to Telemundo if it is required to sue the appellees in Mexico.

Telemundo’s point is well-taken that if it is not allowed to sue in this state, a Florida business relying on the services of a United States company as a middleman/distributor could always be forced out of Florida courts any time a dispute emerges over provision of goods or services from a foreign country, as long as the defendant, as here, alleges that a foreign third-party is ultimately at fault and the foreign country provides a minimally adequate forum. The Florida Supreme Court in Kinney stated, “Nothing in our law establishes a policy that Florida must be a courthouse for the world, nor that the taxpayers of the state must pay to resolve disputes utterly unconnected with this states interest.” Id. at 88. However, we must ensure that we are still the court for our own Florida citizens. We do not believe that dismissal of Telemundo’s claims under circumstances such as these is what the case law on forum non conveniens envisioned.

IV. Dismissal of Action Against Bolas

Turning now to Bolas, we find that dismissal of Telemundo’s action against Bolas was not warranted. Bolas did not even seek dismissal. The contract in question between Telemundo and Bolas contained a forum selection clause (Miami), as well as a choice of law clause (Florida law).. The forum-selection clause was mandatory, specifically requiring Bolas not to challenge Miami as a forum. As such, Bolas waived any claim that Florida is an inconvenient forum. The failure to give effect to this mandatory choice of forum clause in the parties’ contract was reversible error with regard to Bolas. Where a defendant has contractually agreed to a specific forum and waived the right to object to it, a court may not dismiss claims against that defendant on forum non con-veniens grounds. Four Stars Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Serv., 734 So.2d 576, 577 (Fla. 3d DCA 1999). See also Bombardier Capital, Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001)(“Fo-rum selection clauses are presumptively valid and should be enforced in the absence of a showing that enforcement would be unreasonable or unjust.”).

Y. Conclusion

Our analysis of the Kinney factors supports Telemundo’s position that its claims against Azteca America and Bolas should not have been dismissed. Accordingly, the trial court’s order is reversed. The case is remanded to the trial court for reinstatement of Telemundo’s action against Azteca America and Bolas.

Reversed and remanded with instructions.

      . See also Olympic Corp. v. Societe Generale, supra. Olympic Corp. v. Societe Generale, 462 F.2d 376, 379 (2d Cir.1972)(in a close case, the benefit of impleader may be taken into account, but benefits are not so important as to counteract the overwhelming evidence that the plaintiff should be permitted to sue in the United States); Mowrey v. Johnson & Johnson, 524 F.Supp. 771, 776 (W.D.Pa.1981) (neither the inability to implead third parties nor the lack of compulsory process necessarily mandates forum non conveniens dismissal of an action).


text:
    Milton McFARLANE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-204.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Kirk A. Barrow, Ft. Lauderdale, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GREEN and WELLS, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the order denying defendant’s Florida Rule of Criminal Procedure 3.800 motion to correct sentence insofar as it addressed defendant’s first four claims. We reverse insofar as the order fails to address defendant’s fifth claim. We remand for consideration of that claim.

Affirmed in part, reversed in part and remanded


text:
    L.H., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-1380.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.

      Karl E. Hall, Jr., Miami, for appellant.
    Hillary S. Kambour; Karla Perkins, Miami, for appellee.
    Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the final order terminating the mother’s parental rights because there is substantial competent evidence in the record to show that she abandoned her minor child as defined by section 39.01(1), Florida Statutes (2005). See T.P. v. Dep’t. of Children & Family Services, 935 So.2d 621 (Fla. 3d DCA 2006)(standard of review for the sufficiency of evidence supporting termination of parental rights is whether order is supported by substantial competent evidence).

Affirmed.


text:
    G.I.G., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-995, 5D06-1162, 5D06-1163.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

G.I.G., a juvenile, appeals the determination of the trial court to depart from the recommendation of the Department of Juvenile Justice, and to commit him to a level 6 facility. Although G.I.G. argues that the court failed to state sufficient reasons founded on competent substantial evidence to support a departure from the Department’s recommendation, we conclude that the trial court did not abuse its discretion in this regard. See M.P. v. State, 832 So.2d 877 (Fla. 5th DCA 2002).

There is, however, one issue that needs to be further addressed by the trial court. In J.I.S. v. State, 930 So.2d 587, 596 (Fla.2006), the Florida Supreme Court held that credit for time served must be given for pre-commitment secure detention when the commitment will conclude before the juvenile reaches the age of majority. G.I.G. argues, and the State concedes that G.I.G. is entitled to credit for 63 days time served. While the trial court entered an order to this effect, it did so more than 30 days after G.I.G. filed his motion to correct a sentencing error. Florida Rule of Juvenile Procedure 8.135(b)(1)(b), indicates that any order entered more than thirty days after such a motion is filed is deemed denied. Accordingly, while we affirm the decision of the trial court to depart from the Department’s recommendation, we remand for entry of a proper order giving G.I.G. credit for time served.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER and EVANDER, JJ., concur.


text:
    William P. DAVIS, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL, etc., Appellee.
    No. 5D06-2119.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    Steven W. Johnson, Orlando, for Appellant.
    Jennifer A. Tschetter, Tallahassee, for Appellee.
   MONACO, J.

William Davis takes this appeal from a final order of the Florida Real Estate Appraisal Board which suspended his real estate appraiser’s license for six months, placed him on probation, and levied certain other sanctions against him. We review an administrative order to determine whether there is competent substantial evidence to support it. See Legal Environmental Assistance Foundation, Inc. v. Clark, 668 So.2d 982 (Fla.1996); Dep’t of Highway Safety & Motor Vehicles v. Silva, 627 So.2d 612 (Fla. 1st DCA 1993). Here, the facts were not disputed, an informal hearing was accorded to Mr. Davis, and the administrative order was well within the authority of the Board. We note as well that Mr. Davis elected to proceed with an informal hearing, and at no time requested a formal hearing, although he was thoroughly advised of his right to do so.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.


text:
    James A. RUSSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-255.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    James A. Russell, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

James A. Russell petitions for a belated appeal to examine the denial of his post-conviction relief motion. We deny Russell’s request because he has not alleged a valid reason for obtaining relief; his petition is legally insufficient. See Izquierdo v. State, 935 So.2d 1243, 1245 (Fla. 5th DCA 2006) (holding a defendant is not entitled to a belated appeal for the denial of a motion for post-conviction relief when he fails to demonstrate that the failure to file a timely appeal was due to State action).

PETITION DENIED.

THOMPSON, MONACO and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    Christopher Chance LEACH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1256.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.

      John C. Notari, of Law Offices of Sig-man, Sigman, Notari & Sigman, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Christopher C. Leach appeals an order denying his dispositive motion to suppress following his nolo contendere plea to trafficking in, and possession of various controlled substances. The issue we must resolve is whether the police officer who conducted a pat-down of Mr. Leach had a legal basis to do so. We conclude the pat-down, which led to the discovery of the drugs, was lawful, and that the trial court properly denied the motion to suppress.

Officer Jason Junnier, a K-9 handler and patrol officer with the Winter Springs Police Department, pulled over a vehicle driven by Mr. Leach for speeding. As Officer Junnier approached the vehicle, he noticed a lot of movement in the rear of the car. However, as the windows were heavily tinted, he was not certain whether Mr. Leach was moving around the vehicle. He also observed that all four occupants appeared uneasy. After checking Mr. Leach’s driver’s license, Officer Junnier called for backup. When Officer Ryan Vonbargen arrived at the scene several minutes later, he took over writing Mr. Leach a warning citation. Officer Junnier then had Mr. Leach and his three passengers exit the car while he used his K-9 to do a narcotics sniff of the vehicle. The dog alerted to the presence of drugs on the driver’s door handle and the front passenger door handle.

Before searching the car, Officer Junnier conducted a pat-down of Mr. Leach and his three passengers. Officer Junnier testified that he felt the need to do a pat-down of the occupants for the officers’ safety, as there were four occupants of the vehicle and only two officers. He further testified that in his experience, there are often weapons involved in narcotics arrests. While patting down Mr. Leach, Officer Junnier felt a large, hard edged object in the area of Mr. Leach’s right thigh that he believed might be a weapon. When he removed the object, he discovered it to.be a bag containing cannabis, a large amount of pills, a digital scale, and plastic baggies. He subsequently searched the vehicle.

The trial court issued an order denying Mr. Leach’s motion to suppress, concluding:

[T]he Defendant argues that the search of the Defendant’s person is illegal since the police dog alerted only on the car and the Defendant was not inside the car at the time. The Defendant relies on Bryant v. State, 779 So.2d 464 (Fla. 2d DCA 2000), to support his position. In Bryant, the Second District Court of Appeal expressly stated that an alert on a vehicle, standing alone, does not give a law enforcement officer probable cause to search a person outside the ear. However, in State v. Burns, 698 So.2d 1282 (Fla. 5th DCA 1997), the Fifth District held that a positive alert from a narcotics dog coupled with an officer’s experience in the association between drugs and weapons legally justifies a pat-down search.
In the instant case, Officer Junnier testified that, in his experience, persons carrying drugs in automobiles also may carry weapons. Additionally, because of the number of passengers in the Defendant’s car, Officer Junnier testified the pat-down was done for officer safety concerns. The Court accepts Officer Junnier and [Vjonbargan’s testimony as credible. Therefore, Officer Junnier possessed a reasonable belief or suspicion that the Defendant was armed with a dangerous weapon and posed a danger to his safety and the safety of Officer [Vjonbargan so as to warrant a pat-down search of the Defendant prior to searching the Defendant’s car. The police dog alerted to the presence of narcotics during the course of a valid traffic stop. This alert, coupled with Officer Junnier’s experience regarding the association of weapons and drugs, leads the court to conclude that a valid pat-down search of the Defendant occurred in this case and that the seizure of drugs was lawful. Under the circumstances in this case, the Defendant’s right to personal security free from arbitrary interference by law enforcement officers is outweighed by the public’s interest in officer safety. State v. Burns, supra; Maryland v. Wilson, 519 U.S. 408 [117 S.Ct. 882, 137 L.Ed.2d 41] (1997); Pennsylvania v. Mimms, 434 U.S. 106 [98 S.Ct. 330, 54 L.Ed.2d 331] (19[7]7).

Mr. Leach subsequently pled no contest to all three counts, was adjudicated guilty, and sentenced to three years in prison. This appeal followed.

Appellate review of a trial court’s denial of a motion to suppress presents mixed questions of law and fact. State v. Kindle, 782 So.2d 971, 973 (Fla. 5th DCA 2001). A trial court’s factual findings are reviewed to determine if they are supported by competent, substantial evidence. Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002). “A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Doorbal v. State, 837 So.2d 940, 952 (Fla.2003) (quoting Terry v. State, 668 So.2d 954, 958 (Fla.1996)). However, the trial court’s application of law to the facts is subject to de novo review. Connor v. State, 803 So.2d 598, 608 (Fla.2001).

Mr. Leach argues on appeal that the trial court erred in denying his motion to suppress because Officer Junnier did not have probable cause to conduct a pat-down search under section 901.151(5), Florida Statutes (2005), the Florida Stop and Frisk Law. The Florida Stop and Frisk Law “allows an officer, who has validly stopped an individual/- to search the individual only if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person.” Dewberry v. State, 905 So.2d 963, 966 (Fla. 5th DCA 2005). The “probable cause” requirement in the Florida Stop and Frisk Law refers to the federal stop and frisk standard and not the stricter probable cause standard for arrests and search warrants. State v. Webb, 398 So.2d 820, 824-25 (Fla.1981). Thus, there must only be an articulable reasonable belief or suspicion that the individual is armed and poses a threat to the officer. Id. at 825. To determine the reasonableness of a police officer’s suspicion, the trial court “must consider the totality of the circumstances as viewed by an experienced police officer.” Dewberry, 905 So.2d at 966 (citing Taylor v. State, 855 So.2d 1 (Fla.2003); Enich v. State, 888 So.2d 1216 (Fla. 3d DCA 2003)). Reasonableness also depends on “ ‘a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers’” and is guided by “ ‘common sense and ordinary human experience.’ ” State v. Burns, 698 So.2d 1282, 1284 (Fla. 5th DCA 1997) (quoting Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994)).

This Court dealt with a similar set of facts in Bums, when, as here, the defendant’s car was pulled over for speeding. After learning that the defendant’s driver’s license was suspended and receiving an improbable story from the passenger about where they were traveling, the sheriffs deputy, who had pulled the car over, ordered a K-9 sniff of the car. During a sweep of the car’s exterior, the dog alerted to the scent of narcotics. The deputy informed the defendant and the passenger that he was going to pat them down for weapons before searching the vehicle. During a pat-down of the defendant, the deputy discovered a substantial amount of cocaine. At the hearing on the defendant’s motion to suppress, the deputy testified that he conducted the pat-down to protect himself and the other deputies on the scene, and because, based on his training and experience, he had learned that when drugs are found in vehicles, weapons are often also present. The trial court granted the motion to suppress. This Court reversed, concluding that the deputy’s suspicion that the defendant was armed was reasonable and not arbitrary in light of the police dog’s alert and the deputy’s experience regarding the association of weapons and drugs. Id. at 1284. We wrote:

In so ruling we recognize that, without the benefit of a frisk, the deputy would have been in a precarious situation because he would not have known whether the defendant was armed. We agree with the opinion expressed by the second district in King v. State, 696 So.2d 860 (Fla. 2d DCA 1997), that law enforcement officers should not be required to take such risks. Clearly, under circumstances such as these, a defendant’s right to personal security free from arbitrary interference is outweighed by the public’s interest in officer safety.

Id.

Mr. Leach correctly observes that in Campuzano v. State, 771 So.2d 1238 (Fla. 4th DCA 2000), the fourth district court questioned Burns’s continued viability in light of the United States Supreme Court’s decision in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). In J.L., the Supreme Court held that an anonymous tip about a person carrying a gun was, without more, insufficient to justify a police officer’s stop and frisk of that person. In questioning Burns’s continued viability, Campuzano points to the Supreme Court’s statement in J.L.:

Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. See, e.g., United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.1998); United States v. Dean, 59 F.3d 1479, 1490 n. 20 (5th Cir.1995); United States v. Odom, 13 F.3d 949, 959 (6th Cir.1994); United States v. Martinez, 958 F.2d 217, 219 (8th Cir.1992). If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and [Alabama v.] White, [496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ] the Fourth Amendment is not so easily satisfied.

Campuzano, 771 So.2d at 1243 (quoting J.L., 529 U.S. at 273, 120 S.Ct. 1375) (added internal footnote omitted).

Our opinion in Burns was predicated on a long line of federal cases, well illustrated by United States v. Sakyi, 160 F.3d 164 (4th Cir.1998), one of the cases mentioned in J.L. In Sakyi, the court held that:

[W]hen drugs are suspected in a vehicle and the suspicion is not readily attributable to any particular person in the vehicle, it is reasonable to conclude that all occupants of the vehicle are suspect. They are in the restricted space of the vehicle presumably by choice and presumably on a common mission. Furthermore, as we previously noted, guns often accompany drugs. See [U.S. v.] Stanfield, 109 F.3d [976] at 984 [ (4th Cir.1997) ]; United States v. Perrin, 45 F.3d 869, 873 (4th Cir.1995) (noting that “it is certainly reasonable for an officer to believe that a person engaged in the selling of crack cocaine may be carrying a weapon for protection.”) In the absence of ameliorating factors, the risk the danger to an officer from any occupant of a vehicle he has stopped, when the presence of drugs is reasonably suspected, but probable cause for arrest does not exist, is readily apparent. Accordingly, we hold that in connection with a lawful traffic stop of an automobile, when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer’s safety and the safety of others.

Id. at 169. Sakyi’s viability was reaffirmed by the fourth circuit most recently in United States v. Oriach, 222 Fed.Appx. 312, No. 05-5051, 2007 WL 805979 (4th Cir. Mar. 14, 2007). We believe Bums is still viable as well.

J.L. does not expressly overrule Sakyi or other cases with similar holdings such as Bums. To the contrary, at least the Fourth Circuit Court of Appeals believes Sakyi and the cases on which it relies, and which form the foundation of Bums, are still viable. We agree with that assessment and believe J.L. is distinguishable on its facts. Most significantly, J.L. dealt with the authority of an officer to conduct a pat-down search after receiving an anonymous, uncorroborated tip. J.L. also held that “the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer’s prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped.” J.L., 529 U.S. at 274, 120 S.Ct. 1375.

In this case, there was a lawful traffic stop, an alert by a drug dog at the location in the car where Mr. Leach was sitting, four uneasy occupants of the vehicle, at least some of whom had been moving around in an unusual fashion before stepping out of the car, an officer whose experience and training taught him that weapons and drugs are frequently associated, and only two police officers to deal with the situation. We think these factors provided a reasonable basis for the officer to conduct the pat-down, which led to the discovery of the drugs and drug paraphernalia. Unlike J.L., this was not a pat-down predicated on nothing more than an anonymous, uncorroborated tip.

For these reasons, we affirm the trial court’s order denying Mr. Leach’s motion to suppress.

AFFIRMED.

GRIFFIN and LAWSON, JJ., concur.

      . Section 901.151(5), Florida Statutes (2005), states:
      Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

      . The validity of the traffic stop and its duration are not at issue here.


text:
    Emma Lou Welch WHITE, Allison Welch, Florine Welch, a/k/a Florine Welch Johnson, and Roberta Welch McCray, Appellants, v. Phillip L. HAWLEY, Tomphil Properties, Inc., Retha Welch, Lillie Bell Williams, Christine Welch Williams, Lucy Welch Green, Ola Mae Welch Riley, Rosa Mae Welch Riley, Angela Welch, Virginie Welch Porter, Louise Welch King, Hayclue Welch, Thaddis Welch, Thomas J. Welch, Marion Welch, Willie M. Evans, Lois Welch, Katie Mae Welch, Peter Welch, Jr., Walter Welch, Josephine Welch, Elsie Welch, John Welch, Leroy Welch Ingram, Emma Davis, Violet McHenry, Docia Welch and Everline Welch, a/k/a Evaline Welch, the Heirs of Morris Pinkney, and all Unknown Heirs, Appellees.
    No. 1D07-0452.
    District Court of Appeal of Florida, First District.
    June 13, 2007.
    Emma Lou Welch White, Allison Welch, Florine Welch, a/k/a Florine Welch Johnson, and Roberta Welch McCray, pro se, Appellants.
    Frank P. Saier, Gainesville, for Appel-lees.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of February 1, 2007, the Court has determined that the notice of appeal was untimely. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed as untimely. The appellees’ Motion to Dismiss, filed on February 2, 2007, is denied as moot.

LEWIS, POLSTON, and ROBERTS, JJ., concur.


text:
    Simon Randy PEARSALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1044.
    District Court of Appeal of Florida, Third District.
    June 13, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, C.J., and RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Assuming, without deciding, that the prosecutor’s cross-examination question was fairly susceptible of being interpreted as a comment on the appellant’s silence at the time of arrest, see State v. Hoggins, 718 So.2d 761, 768 (Fla.1998), we conclude that the error was harmless beyond a reasonable doubt. As to his argument that the trial court erred in its sentence of him, we agree that the issue has not been properly preserved.