text:
    ADVENTIST HEALTH SYSTEM/SUNBELT, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D06-3767.
    District Court of Appeal of Florida, First District.
    April 30, 2007.

      Bruce J. Berman and Michael G. Austin of McDermott Will & Emery, LLP, Miami, for Appellant.

      Tracy Lee Cooper, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Adventist Health System/Sunbelt, Inc., appeals the Final Order of the Agency for Health Care Administration (“AHCA”) denying a request for a declaratory statement. Appellant contends that AHCA erred when it refused to issue a declaratory statement on the ground that the issue raised by Appellant was purely hypothetical and Appellant was therefore not substantially affected. We conclude that Appellant is substantially affected and AHCA has the authority to render the requested declaratory statement. Therefore, we reverse and remand for further proceedings.

According to the petition for declaratory statement, Appellant is “a licensee under Chapter 395, Florida Statutes, [which] offers an integrated health care delivery system through affiliated hospitals, nursing homes, home health agencies and physician office practices.” Appellant was interested in forming and owning, in significant part, a multi-specialty group practice that would provide patients with an integrated and multi-disciplinary approach to diagnosis and treatment of cancer in central Florida (the “Oncology Group” or “Group”). Because of the proposed business structure and ownership arrangement of the Oncology Group, Appellant determined there was a substantial risk, under Florida’s Patient Self-Referral Act of 1992, section 456.053, Florida Statutes (2005), that it would be statutorily prohibited from billing for radiation therapy services furnished to certain patients of the Group. Thus, Appellant filed a petition for declaratory statement requesting that AHCA address the ability of the proposed Oncology Group to bill for medical services under section 456.053. Subsequently, in response to a request from AHCA, Appellant filed a supplement to its petition to further clarify the factual scenario presented. On June 23, 2006, without conducting a hearing, AHCA issued its Final Order denying Appellant’s petition on the following grounds:

1. Petitioner’s Petition consists of a hypothetical scenario which has not yet occurred. Therefore, Petitioner is not substantially affected.
2. In the instant case, Petitioner’s described set of circumstances are purely hypothetical, having not yet taken place. Petitioner acknowledges this, stating that it is interested in forming and owning, in large part, the Oncology Group, and that if it were formed, Petitioner would have a significant interest and would be at risk of being prohibited from billing for radiation services rendered. Because the circumstances Petitioner predicts have not yet occurred, and may never occur, Petitioner cannot demonstrate that it will be substantially affected should the declaratory statement not issue. Therefore, Petitioner lacks standing to bring the Petition.

This appeal followed.

Generally, an appellate court may reverse an agency’s declaratory statement only if the agency’s interpretation of a statute is clearly erroneous. See Regal Kitchens, Inc. v. Fla. Dep’t Revenue, 641 So.2d 158, 162 (Fla. 1st DCA 1994). In this case, however, the agency concluded as a matter of law that Appellant did not have standing to seek a declaratory judgment. “Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.” See Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006)

“The purpose of a declaratory statement is to address the applicability of a statutory provision or an order or rule of the agency in particular circumstances.” Chiles v. Div. of Elections, 711 So.2d 151, 154 (Fla. 1st DCA 1998). Florida courts have repeatedly noted that one of the benefits of a declaratory statement is to “avoid costly administrative litigation by selecting the proper course of action in advance.” See id.; Nat’l Ass’n of Optometrists & Opticians v. Fla. Dep’t of Health, 922 So.2d 1060, 1062 (Fla. 1st DCA 2006). Thus, a party should seek a declaratory statement from the agency “in advance” of selecting and taking a course of action. See Novick v. Dep’t of Health, Bd. of Med., 816 So.2d 1237, 1240 (Fla. 5th DCA 2002) (“The purpose of a declaratory statement is to allow a petitioner to select a proper course of action in advance.”); Fla. Dep’t of Bus. & Prof 'l Regulation, Div. of PariMutuel Wagering v. Inv. Corp. of Palm Beach, 747 So.2d 374, 382 (Fla.1999). In fact, a declaratory statement is not available when seeking approval of acts which have already occurred. See Novick, 816 So.2d at 1240.

Here, Appellant requested a declaratory statement in order to determine the applicability of certain sections of Florida’s Patient Self-Referral Act to the Oncology Group it planned to create. If certain provisions of the Act applied to the Group, Appellant would be prohibited from billing for radiation therapy services furnished to many patients. The fact that Appellant had yet to form the Oncology Group does not mean that Appellant is not a substantially affected party. Appellant (or a controlled affiliate) would be a member of the Group with a significant ownership interest. Appellant would be substantially affected by a decision on whether it could bill for radiation services provided to certain patients. Thus, a declaratory statement will allow Appellant to plan its future conduct regarding the formation of the Group. This is precisely the type of situation for which the declaratory statement was designed. See Fla. Dep’t of Bus. & Profl Regulation, Div. of Pari-Mutuel Wagering, 747 So.2d at 382 (“ ‘[T]he purposes of the declaratory statement procedure are to enable members of the public to definitively resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their future affairs.’ ”) (emphasis added) (quoting Patricia A. Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L.Rev. 965, 1052 (1986)). Thus, AHCA erred when it refused to issue a declaratory statement on the grounds that the issue raised by Appellant was “purely hypothetical” and Appellant was not substantially affected.

AHCA argues for the first time on appeal that the Department of Health is the only governmental agency with the authority to enter a binding declaratory statement regarding the application of section 456.053. However, section 456.053(5)(b)4, states:

Each board and, in the case of hospitals, the Agency for Health Care Administration, shall encourage the use by licensees of the declaratory statement procedure to determine the applicability of this section or any rule adopted pursuant to this section as it applies solely to the licensee. Boards shall submit to the Agency for Health Care Administration the name of any entity in which a provider investment interest has been approved pursuant to this section, and the Agency for Health Care Administration shall adopt rules providing for periodic quality assurance and utilization review of such entities.

§ 456.053(5)(b)4, Fla. Stat. (2005) (emphasis added).

Appellant contends, and AHCA does not dispute, that Appellant is a licensee under chapter 395, which concerns the regulation of hospitals and other licensed facilities by AHCA. See generally Chapter 395, Fla. Stat. (2005). Section 456.053(5)(b)4 specifically states that in the case of “hospitals,” AHCA shall encourage the use of declaratory statements regarding the applicability of section 456.053. Appellant provides care through a number of resources, including affiliated hospitals, and it is a direct licensee of AHCA. Because AHCA administers hospitals and facilities under chapter 395, and it is not disputed that Appellant is a licensee under that chapter, AHCA is the agency given the statutory authority to regulate Appellant. Further, AHCA has a number of responsibilities under the Florida Patient Self-Referral Act, indicating that AHCA has the authority to interpret that Act and issue declaratory statements regarding the Act. See, e.g., §§ 456.053(4)(a)6, (4)(c), (4)(a)5, (5)(g), Fla. Stat. (2005). Our conclusion that AHCA has authority to render a declaratory statement is bolstered by the fact that AHCA never asserted in the proceedings below that it did not have the authority to issue the requested declaratory statement. In fact, AHCA acted at all times as if it did have such authority, and at least twice requested additional information from Appellant in order to render the declaratory statement.

The Final Order denying the petition for declaratory statement therefore is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

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

      . Section 120.565(1), Florida Statutes (2005), contains the following provision regarding the right of a party to seek a declaratory judgment from an agency:
      (1) Any substantially affected person may seek a declaratory statement regarding an agency's opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.
      (2) The petition seeking a declaratory statement shall state with particularity the petitioner’s set of circumstances and shall specify the statutory provision, rule, or order that the petitioner believes may apply to the set of circumstances.
      (Emphasis added).

      . The supplemental petition provided additional facts regarding: (i) the physician-patient relationship, (ii) the billing procedures, and (iii) any financial relationships between the Group and referring physicians.

      . To the extent the agency did not have enough facts to make a decision, it could have requested those facts from Appellant, as it did on at least two occasions in this case; it also could have held a hearing to determine those facts. See Fla. Admin. Code R. 28-105.003 (“The agency may hold a hearing to consider the petition for declaratory statement.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNUM LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Nancy Barnes HOLT, Appellee.
    No. 5D06-1226.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2007.

      Kristina B. Pett, Wendy L. Furman and Lonn Weissblum, of Pett, Furman & Jacobson PL, Boca Raton, for Appellant.
    Robert J. Telfer, of Cianfrogna, Telfer, Reda, Faherty & Anderson, P.A., Titus-ville, for Appellee.
   PER CURIAM.

AFFIRMED. See Skretvedt v. E.I. Dupont De Nemours, 372 F.3d 193 (3d Cir.2004).


author: WALLACE, Judge.

text:
    Frank B. DAMIAN, a/k/a Zezko Damianova, Appellant, v. Jessie DAMIAN, a/k/a Tzetzka Damianova, Appellee.
    No. 2D06-4184.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.
    Jesse L. Skipper of Jesse L. Skipper, P.A., St. Petersburg, for Appellant.
    Sarah M. Chaves, St. Petersburg, for Appellee.
   WALLACE, Judge.

■ In a postdissolution of marriage proceeding, the trial court entered an order transferring the interest of Frank Damian (the Former Husband) in the parties’ onetime marital home to Jessie Damian (the Former Wife). The Former Husband filed a motion to set aside the order on the ground that the trial court improperly modified his property rights because it lacked continuing jurisdiction to enter the order in question. The trial court denied the motion to set aside the order, and the Former Husband appeals. We reverse.

The Facts and Procedural Background

In 2000, the trial court entered a final judgment that dissolved the parties’ twenty-year marriage (the Dissolution Judgment). With respect to the disposition of the marital home, the trial court ruled as follows:

[D]ue to the diversity of valuation [of the marital home], the shortness of time between now and when the youngest of the parties’ children reachfes] the age of eighteen, and the overall best interest of the parties, [] the house should remain owned by the parties as tenants in common until such time as the youngest child reaches the age of eighteen. When the youngest child reaches eighteen then the house will be disposed of and the net proceeds, if any, will be equally divided between the parties.

Thus, under the Dissolution Judgment, the parties became tenants in common of the property, and the Former Husband retained his ownership interest in the marital home. As the primary residential parent, the Former Wife was to reside in the marital home until the youngest child of the marriage reached the age of eighteen. Then, the property was to be sold and the net sales proceeds divided equally between the parties. Although the Dissolution Judgment contained a paragraph relating to the reservation of jurisdiction, the reservation provision was expressly limited “to the executory provisions of this Final Judgment.”

After the parties’ marriage was dissolved, the Former Husband became delinquent in his obligations to the Former Wife for alimony, child support, and his share of the children’s uninsured medical expenses. In August 2004, the Former Wife filed her Motion for Contempt, to Enforce Final Judgment, and to Purchase Former Husband’s Interest in Former Marital Home (the Motion to Enforce). In the Motion to Enforce, the Former Wife requested that the trial court “determine the value of the marital home and allow the Former Wife to buy-out the Former Husband’s interest, giving her credit for support and medical insurance expenses he owes the Former Wife and for capital improvements on the home.” The Former Husband did not appear at the hearing on the Former Wife’s Motion to Enforce, and the trial court entered a Judgment Enforcing Final Judgment of Dissolution of Marriage (the Second Judgment).

In the Second Judgment, the trial court determined the value of the Former Husband’s net equity in the former marital home. The trial court then deducted from the net equity the amounts that it determined to be due the Former Wife for alimony, child support, and the Former Husband’s share of the children’s uninsured medical expenses. After making these deductions from the net equity, the trial court determined the value of the Former Husband’s interest in the marital home to be $1972.89. The trial court ordered the Former Wife to pay the Former Husband this amount in twelve monthly installments of $164.40 each. Finally, the trial court ordered that the Former Husband’s interest in the marital home would be conveyed to the Former Wife and that “[t]his Judgment may be recorded in the Official Record Books of Pinellas County, Florida[,] as a transfer of title to the property in lieu of a deed.”

In June 2005, the Former Husband filed a motion for relief from the Second Judgment. In this motion, the Former Husband asserted that he did not receive notice of the hearing that resulted in the entry of the Second Judgment. The trial court denied the motion, and the Former Husband appealed. This court affirmed the trial court’s order. See Damian v. Damian, 927 So.2d 1078 (Fla. 2d DCA 2006). However, we noted that our affir-mance was “without prejudice to the Former Husband filing a motion pursuant to Florida Rule of Civil Procedure 1.540 challenging the trial court’s continuing jurisdiction to enter” the Second Judgment. See id. at 1079.

Next, the Former Husband filed the motion for relief from the Second Judgment that resulted in the entry of the order on appeal. The trial court denied the motion, finding that it had continuing jurisdiction to enforce the Dissolution Judgment by disposing of the marital home. We disagree.

The Parties’ Arguments

The Former Husband argues that the trial court exceeded its continuing jurisdiction by modifying the distribution of property decreed in the Dissolution Judgment; therefore, the trial court’s refusal to grant him relief from the Second Judgment was in error. The Former Wife contends that the Second Judgment did not modify any property rights but only enforced the Dissolution Judgment. The Former Wife points out that the language the trial court used in the Second Judgment was that of enforcement, not modification: “The Former Wife’s motion to enforce the final judgment and to purchase the Former Husband’s interest in the former marital home is granted.” The Former Wife also asserts that the trial court’s reservation of “jurisdiction with regard to the executory provisions of this [Dissolution] Judgment” was sufficient to confer continuing jurisdiction to support the entry of the Second Judgment. Finally, the Former Wife argues that the Second Judgment resulted in a proper “set-off’ for past-due monies owed to her by the Former Husband.

Generally, the parties agree that the trial court had the “inherent jurisdiction to enforce its previously entered orders, even in the absence of an express reservation of jurisdiction in a final judgment.” Spencer v. Spencer, 898 So.2d 225, 227 (Fla. 2d DCA 2005). However, the Former Husband argues that the Dissolution Judgment did not include a specific reservation that would have enabled the trial court to modify the parties’ property rights. See id. (requiring the trial court to specifically reserve jurisdiction to modify property rights); Solmo v. Friedman, 909 So.2d 560, 565 (Fla. 4th DCA 2005) (stating that a reservation of jurisdiction in the final judgment of dissolution of marriage for the purpose of enforcing its provisions and for “entering such further orders as this Court may deem just and proper” was insufficient to give the trial court jurisdiction to modify property rights that it had previously adjudicated in the final judgment).

Discussion

We agree with the Former Husband that this court’s decisions in Bridges v. Bridges, 848 So.2d 403 (Fla. 2d DCA 2003), and Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988), are controlling here. In Bridges, the wife moved to enforce a final judgment of dissolution of marriage. The trial court awarded the wife “money damages in lieu of personal property she had received in the dissolution judgment.” 848 So.2d at 404. The husband appealed the trial court’s order. Id. This court concluded that a general reservation of jurisdiction for enforcement contained in the final judgment “did not empower the court to, in essence, change the wife’s award of tangible personal property into an award of money damages.” Id. Accordingly, we reversed the trial court’s order. Id.

Likewise, in Harman, when the wife moved to have the husband cited for contempt to enforce her alimony award, the trial court ordered “the husband to convey his interest in the former marital home to the wife.” 523 So.2d at 188. In a separate order, the trial court also reduced the amount of the monthly permanent alimony payment that the husband was required to make to the wife. Id. On appeal, this court held that the trial court had erred “in awarding the husband’s interest in the former marital home to the wife” because it lacked continuing jurisdiction to modify the parties’ property rights. Id. For this reason, we reversed the order awarding the husband’s interest in the former marital home to the wife. Id. In addition, we reversed the order reducing the husband’s alimony obligation and remanded for a new trial on that issue. Id. at 188-89.

The facts in this case are similar to the facts in Harman. Granted, the modification of property rights here took the form of a forced sale rather than a gratuitous conveyance. Nevertheless, the Second Judgment modified the parties’ property rights under the Dissolution Judgment, which provided for the home to be owned by the parties as tenants in common and to be “disposed of’ when the youngest child reached age eighteen, when the proceeds were to be divided equally. The trial court’s reservation of jurisdiction over “the executory provisions” of the Dissolution Judgment was not a specific reservation sufficient to give it continuing jurisdiction to modify the property rights that had already been adjudicated. Although the parties might have agreed to allow one of them to purchase the other’s interest in the home, the trial court had jurisdiction only to enforce the provision that the parties dispose of the home and split the proceeds. The trial court did not have continuing jurisdiction to require what was — in effect — a forced sale of the Former Husband’s interest in the property to the Former Wife.

We reject the Former Wife’s characterization of the facts in this case as similar to those in Hoskin v. Hoskin, 349 So.2d 755, 757-58 (Fla. 3d DCA 1977). In Hoskin, the Third District affirmed a trial court order that required the parties to find a real estate broker and to cooperate concerning the sale of the marital home. But unlike the Second Judgment under review here, the trial court’s order in Hoskin did not convey any interest in the litigants’ home. Rather, the order in Hoskin merely enforced the final judgment of dissolution of marriage that required the litigants to sell the marital home at issue in that case and to divide the proceeds equally. Id. at 756.

The Former Wife also suggests that Demorizi v. Demorizi, 851 So.2d 243 (Fla. 3d DCA 2003), is applicable to the facts of this case. Once again, we disagree. In De-morizi, the trial court had not previously adjudicated the ownership of the. tax deposit that was at issue in that case. The Third District held that equitable considerations required the trial court to allocate the tax deposit between the parties in a postdissolution proceeding brought by the wife. Id. at 245-46. Here, the parties’ rights in the former marital home were expressly determined in the dissolution judgment. Thus those rights could not be modified in the absence of a specific reservation of jurisdiction.

Because we conclude that the trial court exceeded its jurisdiction in entering the Second Judgment, we need not address the Former Wife’s argument that the deduction of the amounts owed to her by the Former Husband from the value of his interest in the former marital home was appropriate as a “set-off.”

Conclusion

Before closing, we add that we do not question the trial court’s jurisdiction to enforce the support provisions of the Dissolution Judgment or to enforce the distribution of property that it had previously made. Indeed, in her motion for contempt, the Former Wife also asked the trial court to “hold the Former Husband in contempt, order him to pay the amounts owed plus interest, [and] sanction him” for his failure to make the support payments due her. The Former Wife requested this relief separately from her request to purchase the Former Husband’s interest in the marital home and her accompanying request to charge the past-due support payments against what she would owe the Former Husband for his net equity in the home.

Nevertheless, the trial court exceeded its continuing jurisdiction by modifying the distribution of property that it had made in the Dissolution Judgment. For this reason, we reverse the trial court’s order denying the Former Husband’s motion for relief from the Second Judgment. Furthermore, we remand this case to the trial court with directions to enter an order granting the Former Husband’s motion and vacating the Second Judgment. On remand, the trial court may conduct such further proceedings consistent with this opinion as may be appropriate.

Reversed and remanded with directions.

WHATLEY and SALCINES, JJ., Concur.


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Curt CRAVEN, Appellee.
    No. 4D06-1774.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   TAYLOR, J.

The state appeals an order discharging the defendant on speedy trial grounds. According to the state, the defendant’s pro se notice of expiration of speedy trial and motion for discharge were nullities because the defendant was represented by counsel at the time they were filed, and their later adoption by defense counsel, if approved by the trial court, should become effective from the date of adoption, not from the date the pleadings were originally filed pro se by the defendant. We agree and reverse.

The defendant was convicted of aggravated battery and misdemeanor battery following a jury trial. We reversed for a new trial based on an improper jury instruction and issued our mandate on September 16, 2005. On November 14, 2005, the defendant filed an application for criminal indigent status. On November 30, 2005, the defendant was declared indigent, and the public defender was appointed to represent him. On December 23, 2005, the defendant filed a pro se notice of expiration of speedy trial period. On January 12, 2006, he followed up with a motion to discharge. On March 3, 2006, the defendant filed a pro se emergency petition for writ of prohibition in this court. At that point, the public defender filed a motion in this court seeking to adopt the pro se emergency petition for writ of prohibition. We issued an order dismissing the petition “without prejudice to seek relief in the trial court in the event trial counsel adopts the trial court motion.”

On remand, after the public defender adopted the prior pro se pleadings, the trial court granted the motion to discharge. The court reasoned that because the defendant’s motions were subsequently adopted by counsel, “he avoids treatment of his motions as legal nullities.”

Under the speedy trial rule, the state had ninety days from the issuance of our mandate within which to commence the defendant’s new trial. Fla. R.Crim. P. 3.191(m) (2006). Ordinarily, when the time period has expired, the defendant files a Notice of Expiration of Speedy Trial Time, and the state then has a fifteen-day recapture period within which to bring the defendant to trial or face the defendant’s discharge. Fla. R.Crim. P. 3.191(p) (2006). The problem in this case is that the defendant was represented by counsel when he filed his pro se notice of expiration and motion for discharge.

Because the pro se pleadings did not unequivocally request the discharge of defendant’s counsel, they were nullities, having no legal force or effect. Logan v. State, 846 So.2d 472, 476 (Fla.2003); Johnson v. State, 932 So.2d 1169, 1170 (Fla. 2d DCA 2006); Sams v. State, 849 So.2d 1172, 1174 (Fla. 3d DCA 2003); Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000); Thompson v. State, 615 So.2d 737, 741 (Fla. 1st DCA 1993). The defendant argues that because the state did not move to strike the pro se pleadings, they were not nullities. We reject this argument, which is unsupported by any authority. Such pleadings are nullities without regard to whether a motion to strike was filed.

In some situations, defense counsel can adopt and proceed to argue his client’s pro se filings. The question is whether the adoption of a pro se filing of speedy trial pleadings can “relate back” in time so as to entitle a defendant to discharge. We can find no Florida case directly on point. In Kidd v. State, 855 So.2d 1165, 1167 (Fla. 5th DCA 2003), which the trial court cited in its order of discharge, the defendant filed a pro se motion for a new trial based on improper comment by the prosecutor and a pro se motion to correct his sentence because of an improper sexual predator designation. Defense counsel adopted the pro se motion for a new trial and argued it at the sentencing/motions hearing. The trial court considered the adopted motion on the merits and the appellate court determined that the issue was preserved for review. However, because the opinion in Kidd did not indicate whether the hearing was held within the ten-day period permitted for new trial motions or note any timeliness or relation-back concerns, we do not know whether the court applied a relation-back theory in declining to treat the defendant’s motion as a nullity.

In any event, we disapprove allowing defense counsel’s attempted relation-back of the defendant’s pro se speedy trial pleadings in this case. To allow such a relation-back would swallow the “nullity” rule by forcing the state to respond to a pro se “Notice of Expiration of Speedy Trial Period” as if it had been filed by counsel or risk losing the 15-day recapture period provided by the criminal procedure rules. We agree with the state that in this case defense counsel should not be allowed to adopt the defendant’s pro se speedy trial pleadings so as to completely defeat the state’s entitlement to the recapture period. We hold that in the context of pro se speedy trial pleadings, if the trial court permits defense counsel to adopt the pro se pleadings, the effective date should be the actual date of adoption, not the date on which the unauthorized pleadings were filed. This will give the state an opportunity to bring the defendant to trial within the fifteen-day window and allow the defendant to enjoy his right to a speedy trial.

Reversed and Remanded.

SHAHOOD and GROSS, JJ„ concur.


author: SUAREZ, J.

text:
    John ROUNDTREE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2512.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Miami, and Michael Mayer, Certified Legal Intern, for appellant.
    Bill McCollum, Attorney General, Orlando, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

The defendant below, John Roundtree, appeals the order revoking his probation and imposing a five-year sentence. We affirm the trial court’s findings of violation of probation for failure to report and for change of address without permission, but reverse on the other issues and remand for reconsideration.

The defendant pled guilty to aggravated battery and was sentenced to serve eighteen months of probation. Special conditions included: monthly reports to his probation officer, community service, domestic intervention program, psychological evaluation and treatment if needed, and obtaining his probation officer’s approval before changing his residence. In the seventh month of probation, the probation officer filed an affidavit alleging the defendant violated the conditions listed above.

At the probation revocation hearing, the probation officer testified that he instructed the defendant regarding the conditions of probation. He gave the defendant referrals for a domestic violence program and a psychological evaluation. He did not give the defendant time limits for contacting the programs or completing these tasks. The defendant reported to the probation officer for the first two months of his probation. However, he stopped reporting after the hurricanes in July and August, 2005. The probation building was destroyed in the storms and the office was relocated. Officers were posted in the old office’s parking lot during business hours for a month after the storms. A sign at the old building directed probationers to the new office location. In December 2005, the officer left his business card at the defendant’s home, which appeared to be vacant. The defendant never contacted him. The defendant had not attended the domestic intervention program as of December 16, 2005. As of September 1, 2006, the probation officer had not received reports from the domestic program or psychologist that would indicate the defendant had completed either referral.

The defendant testified at the revocation hearing that he stopped reporting to his probation officer because he was ill. He was hospitalized for six weeks, then resided in a convalescent home for six weeks for additional treatment. He went to the old probation office some time in November 2005, but the building looked abandoned. He lost the probation officer’s contact information so he did not call. The defendant testified that he reported for psychological testing on several occasions before he became ill. The doctor was out of the office several times. On the last visit, the doctor was in, but the defendant did not have the doctor’s ten dollar fee. The defendant testified he reported to the domestic intervention program right after receiving the referral from his probation officer, but was turned away because all the classes were full.

The trial court orally found that the defendant violated the conditions of probation, revoked probation, and sentenced him to five years’ imprisonment. Defendant timely appealed.

For a trial court to revoke probation based on a violation of a condition of probation, the State must prove by a preponderance of the evidence that the defendant willfully and substantially violated that condition. We review the trial court’s ruling for an abuse of discretion. See Hanania v. State, 855 So.2d 92 (Fla. 2d DCA 2008).

The trial court did not abuse its discretion in finding that the defendant violated the condition of his probation requiring him to report monthly. The defendant testified he was aware it was his duty to report. He also testified his parole officer had given him contact information. Even if he were hospitalized from September through the end of November, he failed to report for the months of December through April. The trial court found his reasons for failing to report for these months not to be credible. Even one month’s failure to report, alone, constitutes a substantial violation of probation and is grounds for revocation. Delee v. State, 816 So.2d 677 (Fla. 3d DCA 2002). The court also did not abuse its discretion in finding defendant violated the condition of probation by changing address without permission. Therefore, we affirm the trial court’s findings of violation of probation for failure to report monthly and for change of address without permission.

The trial court did err in finding the defendant violated the conditions of his probation requiring him to undergo psychological evaluation and to complete the domestic intervention program. The probation order contained no schedule or time frame for completion of these two conditions. There was a year left on his probation giving him sufficient time to complete these two requirements before the year had run. See Francois v. State, 923 So.2d 1219 (Fla. 3d DCA 2006) (trial court erred in finding violation of condition of probation for failure to complete community hours where the order of probation did not contain a schedule or time frame for completing the hours and there was sufficient time remaining on probation to complete the requirement). These two violations must be stricken from the revocation order.

It is not clear from the record whether the trial court would have revoked Round-tree’s probation and imposed the same sentence if it had found that he violated his probation by failing to report and by changing his address without permission and had found no other violations. Because we cannot make this determination from the record, we remand to the trial court for reconsideration based on this opinion. See Thomas v. State, 453 So.2d 156, 157 (Fla. 1st DCA 1984).

Reversed and remanded.


author: CORTIÑAS, Judge.

text:
    Frances DIENES and Sol Dienes, Appellants, v. U.S. ALLIANCE MANAGEMENT CORP. d/b/a U.S. Security, Appellee.
    No. 3D06-2589.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Luntz & Luntz and Melvin Luntz, Deer-field Beach, for appellant.
    Cole, Scott & Kissane and Scott A. Cole, Key West, for appellees.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The Plaintiffs, Frances Dienes and Sol Dienes, appeal the trial court’s order granting U.S. Alliance Management Corporation’s (“U.S. Management”) motion to dismiss the Plaintiffs’ second amended complaint. The Plaintiffs also appeal an order denying their motion for rehearing of the trial court’s dismissal of U.S. Management. We affirm both orders on appeal.

The Defendant, U.S. Management, filed a motion to dismiss the Plaintiffs’ second amended complaint contending that it was not properly served. The Plaintiffs argued that U.S. Management was served on April 4, 2006, pursuant to section 48.081(3)(a), Florida Statutes (2005). In support of their contention, the Plaintiffs relied on a copy of the return of service, which was unsigned by the process server. This document stated that the process server had served Martha Morejon, the receptionist for U.S. Management, on April 4th at 1:00 p.m. At the hearing, the Plaintiffs vaguely argued that the process server attempted service on two occasions prior to April 4th and that, in both instances, U.S. Management did not have a registered agent present at the statutorily required times. Based on arguments of counsel, the trial court granted U.S. Management’s motion to dismiss.

Subsequently, the Plaintiffs filed a motion for rehearing along with an amended verified return of service. The amended verified return of service indicated that “[sjervice could not be made on the Registered Agent because of failure to comply with Section 48.091.” The Plaintiffs also attached to their motion the process server’s unexecuted affidavit, which documented that service had been attempted on March 31, 2006 at 11:00 a.m. and on April 3, 2006 at 11:45 a.m. but the registered agent was not present. The trial court denied the Plaintiffs’ motion for rehearing.

We find that the trial court did not abuse its discretion in granting U.S. Management’s motion to dismiss and denying the Plaintiffs’ motion for rehearing. Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 454 (Fla. 1st DCA 1993) (citations omitted)(reviewing an order dismissing a complaint for failure to effectuate service under an abuse of discretion standard). Here, the trial court properly found that the Plaintiffs failed to effectuate service on U.S. Management on April 4th because the Plaintiffs failed to meet their burden of proving at the hearing that the corporation was in violation of section 48.091, thereby permitting service under section 48.081(3)(a). See York Commc’ns, Inc. v. Furst Group, Inc., 724 So.2d 678, 679 (Fla. 4th DCA 1999) (citation omitted)(finding that the party arguing valid service occurred has the burden of establishing that service was proper). The trial court also properly found that the bare allegation of a section 48.091 violation in the amended verified return of service and the process server’s unexecuted affidavit were insufficient evidence to warrant a rehearing of the issue. See id. (finding that statements that “the service of process statute has been complied with [are] insufficient to meet the proponent’s burden of establishing proper service”) (citation omitted).

Accordingly, we affirm the trial court’s orders granting U.S. Management’s motion to dismiss and denying the Plaintiffs’ motion for rehearing.

Affirmed.

      . Section 48.081(3)(a) provides that "if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation's principal place of business or on any employee of the registered agent." § 48.081(3)(a), Fla. Stat. (2005). Section 48.091, Florida Statutes (2005) requires that a corporation have a registered agent available to receive service of process at the registered office from "10:00 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays....” § 48.091(2), Fla. Stat. (2005).


author: WELLS, J.

text:
    Florence DEMOSTHENES, Appellant, v. Chris GIRARD, an individual, Maria Vega, an individual, Ignacio Tamayo, an individual, Pedro M. Fernandez, an individual, Eduardo A. Exposito & Associates, PA., a Florida professional association, and Manuel M. Arversu, LLC., a Florida limited liability corporation, Appellees.
    No. 3D06-2953.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.

      James Jean-Francois, for appellant.
    Perez, Goran, Rodriguez and Javier J. Rodriguez and William G. Essig, Coral Gables, for appellees Pedro M. Fernandez and Ignacio Tamayo.
    Before WELLS, and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

Florence Demosthenes appeals from a final summary judgment in Chris Girard, Pedro M. Fernandez and Ignacio Tamayo’s favor on three counts of her multiple count complaint seeking to secure an interest in a condominium unit located in Miami-Dade County, Florida. Because we find judgment was entered on an erroneous interpretation of the legal effect of a number of deeds, we reverse in part.

This action centers on ownership of one of two duplex units located at Southwest 110th Avenue and 7th Terrace in Miami, Florida. The complaint alleges that this unit, Unit A, was purchased from Better Homes Investments by Girard and Demosthenes in August 2002. Title was taken in Girard’s name alone, although Girard and Demosthenes equally shared in the acquisition cost of this unit, allegedly because Demosthenes had bad credit.

The warranty deed from Better Homes to Girard described the property, then believed by both Better Homes and Girard and Demosthenes to be a condominium unit, as:

Unit “A” of PRINCE CONDOMINIUM II, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book 11306, at Page 171 of the Public Records of Miami-Dade County, Florida, together with all appurtenance thereto, and an undivided interest in the common elements of the said condominium.

One month after Unit A was conveyed to Girard, he executed a quitclaim deed transferring ownership in Unit A from himself to himself and Demosthenes. The legal description in that deed was identical to that of the warranty deed from Better Homes to Girard.

Some time thereafter, Better Homes discovered that a termination of condominium had been filed in 1996 making its 2002 conveyance of these units as condominiums to Girard and Vega ineffectual. To rectify this mistake, Better Homes executed a “Corrective Warranty Deed” conveying the entire property, Units A and B and the surrounding property (formerly the common elements), to Girard and Vega as tenants in common. The legal description on this deed was:

The South 76.94 Feet of the West 109.88 Feet of Block 11, Sweetwater Groves, according to the Plat thereof, as recorded in Plat Book 8, at Page 50, of the Public Records of Miami-Dade County, Florida A/K/A Units “A” and “B”, of Prince Condominium II, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book 11306, at Page 171, of the Public Records of Miami-Dade County, Florida.

(Emphasis added). Girard and Vega then filed a declaration of condominium and executed warranty deeds conveying Unit A, now denominated Unit 2, to Girard and Unit B, now denominated Unit 1, to Vega, thereby accomplishing the goal of the original transfers from Better Homes.

Girard did not, however, execute a new quitclaim deed evidencing Demosthenes’ interest in his unit. Rather, he sold the unit to Fernandez and Tamayo and kept the proceeds for himself. When Demosthenes learned of the sale, she sued Girard, Vega, Fernandez and Tamayo among other things for declaratory relief, to quiet title to, and to impose a constructive trust on Unit 2. She also sued the attorneys involved in these transactions for negligence. Girard moved for summary judgment (in which Fernandez and Tamayo joined) on the declaratory judgment, quiet title and constructive trust counts, claiming that the various documents of record established as a matter of law that the original warranty deed to Girard conveyed nothing to him (since no condominium existed at the time of the initial conveyance), thereby making his quitclaim deed to Demosthenes a nullity providing her with no interest in the property. The trial court agreed and granted summary judgment expressly finding that “Demosthenes has no interest in the real property which is the subject of this action.” Because we find that Demosthenes can establish a beneficial interest in the subject property, we reverse the summary judgment on her constructive trust claim.

This court has long recognized that a contract to sell real property establishes the vendee “as the beneficial owner of the property, with the vendor retaining only naked legal title in trust for the vendee.” B.W.B. Corp. v. Muscare, 349 So.2d 183, 184 (Fla. 3d DCA 1977); see Hull v. Maryland Cas. Co., 79 So.2d 517, 518 (Fla.1954) (upon entry of an agreement to convey title to realty, the “vendee immediately becomes the beneficial owner, and the vendor retains only naked legal title as security for payment of the purchase price”); Estate of Sweet v. First Nat’l Bank of Clearwater, 254 So.2d 562, 563 (Fla. 2d DCA 1971) (stating that “when an owner makes a specifically enforceable contract to sell his real property, the vendee becomes the beneficial owner and the vendor retains only naked legal title in trust for the vendee as security for the vendee’s performance”). Thus, when Better Homes contracted in 2002 to sell the unit at issue to Girard, and certainly when it accepted payment for that unit and issued the first, albeit defective, warranty deed to him, Gir-ard became the beneficial or equitable owner of the unit. This is so even if legal title did not effectively pass to him by virtue of the first defective warranty deed. Consequently, when Girard, the beneficial owner of the unit, executed a quitclaim deed to himself and Demosthenes, he effectively conveyed a beneficial interest in the unit to Demosthenes. Although legal title may not have passed to Demosthenes at that time, her beneficial interest in this property was established by virtue of these deeds.

Girard’s failure, after receiving the corrected deed, to either execute a new deed conveying Demosthenes’ previously acknowledged interest in the unit to her or to share the proceeds from the sale of the unit with her, entitles Demosthenes to imposition of a constructive trust against the sales proceeds. See John G. Grimsley, Florida Law of Trusts § 14-1 (4th ed.2006) (stating that a constructive trust is an equitable creation, implied from circumstances, to avoid a result that “allows a party to be unjustly enriched through abuse of confidence, duress, or fraud, whether the fraud is actual or construe-tive”); see also Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421, 422 (1927) (confirming that a “moral, social, domestic, or personal” relationship may support imposition of a constructive trust where “through actual fraud, abuse of confidence reposed and accepted, or through other questionable means [one] gains something for himself which in equity and good conscience he should not be permitted to hold”); Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla. 4th DCA 1996) (holding that “a constructive trust is a remedial device with dual objectives: to restore property to the rightful owner and to prevent unjust enrichment”); Abreu v. Amaro, 534 So.2d 771, 772 (Fla. 3d DCA 1988) (accord); George Gleason Bogert et al., The Law of Trusts and Trustees § 471 (rev.2d ed.2006) (“If the property has been sold the trust attaches to its proceeds in the hands of the defendant or to other property purchased by defendant into which the original property or its proceeds can be traced.”) (footnote omitted).

It also entitles her to pursue an equitable lien against the property itself, because the defective warranty deed from Better Homes to Girard and the quitclaim deed from Girard to himself and Demosthenes appear to be in the chain of title of this property, and because the attorney who prepared these deeds is the same attorney who prepared the warranty deed from Girard to Fernandez and Tamayo. See Restatement (First) of Restitution § 168 (1937) (“Where a person holding property in which another has a beneficial interest transfers title to the property in violation of his duty to the other, the transferee holds the property subject to the interest of the other, unless he is a bona fide purchaser.”); George Gleason Bogert et al., The Law of Trusts and Trustees § 471 (rev.2d ed.2006) (“[I]f the trust property or its product can be traced into the hands of a third party, a constructive trust may be imposed upon the property in the hands of the third party unless he is a bona fide purchaser for value and without notice.”); Id. § 881 (stating that to be a bona fide purchaser three conditions must be satisfied: the purchaser must have “(1) acquired the legal title to the property in question; (2) he must have paid value therefor; and (3) he must have been innocent of knowledge of the equity against the property at the time when he paid his value and acquired his title”) (footnotes omitted); Id. § 894 (“If the prospective purchaser of the trust property, or of other property subject to an equity, learns of facts personally or through an agent which, while not conclusively showing the existence of a trust or other equity, would lead an ordinarily prudent man to a belief that there was a possibility that an equity existed, the purchaser has a duty to make a reasonable inquiry concerning the existence and nature of the possible equity, and he will be charged with knowledge of the facts concerning the equity which a reasonable investigation would have brought to light.”); Crown Gen. Stores, Inc. v. Ultra Meat Market, Inc., 843 So.2d 287, 289 (Fla. 3d DCA 2003) (stating that the principle behind implied actual notice is “that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.” (quoting Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932))); Gordon v. Aqua-Solar Assoc., 722 So.2d 910, 912 (Fla. 1st DCA 1999) (“Where there is direct information of a prior right or facts from which actual knowledge can be inferred, there is notice of an earlier interest in property which will be sufficient to charge a subsequent purchaser with knowledge of a prior claim.... Implied actual notice can arise not only when a party actually has information which describes the interest of a third party, but also when a party has the means to obtain knowledge under circumstances reasonably suggesting the need for an inquiry, but does not use that knowledge and means to obtain the information.”); Hardaway Timber Co. v. Hansford, 245 So.2d 911, 913 (Fla. 1st DGA 1971) (“Notice, sufficient to eliminate the transferee as a bona fide purchaser for value without notice can be either ‘actual’ or ‘constructive.’ ”). See also George Gleason Bogert et al., The Law of Trusts and Trustees § 912 (Rev.2d ed.2006) (explaining that the “notice of a trust or other equity or of a breach of trust may come to a principal through an agent,” and that “[i]f the agent receives notice of an equity while he is acting for his principal, usually this notice affects the principal and prevents him from being a bona fide purchaser”); Griffith v. Investment Co., 92 Fla. 781, 110 So. 271, 271 (1926) (“It is a well-settled principal of law that an attorney acting within the scope of his authority represents his client and his acts of omission as well as commission are to be regarded as the acts of the person he represents, and therefore his neglect is equivalent to the neglect of the client himself.”); Small v. Colonial Inv. Co., 92 Fla. 503, 109 So. 433, 434 (1926) (same); Ruotal Corp., N.W., Inc. v. Ottati, 391 So.2d 308, 309 (Fla. 4th DCA 1980) (citing the general proposition that “knowledge of the agent constitutes knowledge of the principal as long as the agent received such knowledge while acting within the scope of his authority”).

Accordingly, the summary judgment on Demosthenes’ constructive trust claim is reversed and remanded for further proceedings consistent with this opinion. The summary judgment on the quiet title and declaratory judgment claims is affirmed.

      . The week before Unit A was conveyed to Girard, Better Homes conveyed Unit B, the other unit in the duplex, to Maria Vega, the individual who had occupied it for some time.

      . The warranty deed to Vega conveyed: "Unit B, of PRINCE CONDOMINIUM II, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book 11306, at Page 171, of the Public Records of MIAMI-DADE County, Florida.”


author: STEVENSON, C.J.

text:
    STATE of Florida, Appellant, v. Matthew HENDERSON, Appellee.
    No. 4D06-1706.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
    Russell L. Cormican of Kent & Cormi-can, P.A., Fort Lauderdale, for appellee.
   STEVENSON, C.J.

After the State of Florida charged him with trafficking in methamphetamine, Matthew Henderson sought dismissal of the charge on entrapment grounds. The trial court granted Henderson’s motion and dismissed the charge, prompting this appeal by the State. We reverse.

There are two different theories of entrapment. “Objective entrapment analysis focuses on the conduct of law enforcement” and “operates as a bar to prosecution in those instances where the government’s conduct ‘so offends decency or a sense of justice’ that it amounts to a denial of due process.” Davis v. State, 937 So.2d 300, 302 (Fla. 4th DCA 2006) (quoting State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005)). Subjective entrapment, on the other hand, “is applied in the absence of egregious law enforcement conduct and focuses on inducement of the accused based on an apparent lack of predisposition to commit the offense.” Id. In this case, it is clear from the order of dismissal that the trial court relied upon subjective entrapment in dismissing the charges against Henderson.

The subjective entrapment theory has been codified at section 777.201, Florida Statutes (2006), and, under such theory, the first question that must be addressed is “whether an agent of the government induced the accused to commit the offense charged.” Munoz v. State, 629 So.2d 90, 99 (Fla.1993). It is the defendant who bears the burden of proof with respect to this issue and who must establish inducement by a preponderance of the evidence. Id. It is only when this first question is answered in the affirmative that the remaining two questions must be addressed, i.e., “whether the accused was predisposed to commit the offense charged” and whether the matter of subjective entrapment should be put to the jury. Id.

The salient facts are summarized from the defendant’s sworn motion to dismiss and the State’s traverse. In February 2004, Ruben Jaramillo entered a plea of guilty to trafficking in cocaine and, as part of the plea, entered into a substantial assistance agreement with the State whereby he agreed to act as a confidential informant for the Sunrise Police Department. Jaramillo provided the police with a list of 75 to 100 names of potential “targets” he felt he could “pursue” for the sale of illegal narcotics. Jaramillo compiled this list by going through old cell phones and rolodexes, listing persons that he had either bought drugs from or sold drugs to in the past. The defendant’s name was on that list. Jaramillo and the defendant worked together at a restaurant in the mid-1990s. Jaramillo stopped working at the restaurant in 1995 and occasionally sold drugs to the defendant during the time they worked together and “shortly thereafter.” Jaramillo and the defendant last had contact in approximately 1998 or 1999, when Jaramillo purchased methamphetamine from the defendant. After Jar-amillo entered into his substantial assistance agreement, he placed a series of calls to the defendant and met with him in person to arrange the purchase of methamphetamine. On February 19, 2004, the defendant delivered methamphetamine to Jaramillo and was arrested, leading to the charges in this case.

“Entrapment” is defined as “employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.” § 777.201(1), Fla. Stat. “Inducement” includes “ ‘persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.’ ” Farley v. State, 848 So.2d 393, 395 (Fla. 4th DCA 2003) (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994)). The record on appeal, as established by the sworn motion to dismiss and the State’s traverse, fails to demonstrate the use of any such methods or tactics. The most that can be said in support of defendant’s subjective entrapment argument is that Jaramillo reached out to a person with whom he had no contact for the last five or six years. But, that fact alone is not enough to prove inducement, and, absent a demonstration of inducement, defendant’s claim of subjective entrapment should have failed.

Reversed and Remanded.

KLEIN and MAY, JJ., concur.


text:
    Antonio GARRIDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-556.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Daniel P. Hyndman, West Palm Beach, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Appellant’s convictions are reversed for a new trial because the trial judge erroneously refused to excuse a selected juror and declare a mistrial. That ruling was required because, after the jury was sworn, the juror revealed that, although she had failed to respond when asked on the juror questionnaire whether she had been the victim of a crime, she had in fact twice been the victim of a burglary, the very offense with which Garrido was charged. See De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995); Massey v. State, 760 So.2d 956 (Fla. 3d DCA 2000); see also Mobley v. State, 559 So.2d 1201 (Fla. 4th DCA 1990).

Reversed and remanded for a new trial.


author: PALMER, J.

text:
    Lisa SAVAGE, n/k/a Lisa Knecht, Appellant-Cross-Appellee, v. David SAVAGE, Appellee/Cross-Appellant.
    No. 5D05-4043.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.

      Patrick P. Coll of Bedell, Dittmar, De-Vault, Pillans & Coxe, Professional Association, Jacksonville, for Appellant/Cross-Appellee.
    Steven J. Guardiano, Daytona Beach, for Appellee/Cross-Appellant.
   PALMER, J.

Lisa Savage (mother) appeals the final order entered by the trial court on her motion for an award of post-dissolution attorney’s fees. David Savage (father) cross-appeals contending he is entitled to recover attorney’s fees. Determining that the trial court failed to properly set forth the basis of its fee award, we reverse and remand for entry of an amended order. In all other aspects, we affirm.

The father filed a motion in the trial court seeking to domesticate the parties’ Pennsylvania divorce decree since both parties and their teenage daughter are now residents of Florida. The father also sought a downward modification in the amount of his child support obligation, retroactive to the date of the filing of his petition, based on a substantial change in his financial circumstances.

The father attached a copy of the parties’ marriage settlement agreement (MSA) to his complaint. Of importance to this appeal, the agreement states:

If either party defaults in the due performance of any of the terms, conditions or covenants of the Agreement on his or her part to be performed, the non-defaulting party shall have the right to sue for specific performance or damages for the breach of this Agreement, and the defaulting party shall pay the reasonable legal fees for any services rendered by the non-defaulting party’s attorney in any action or proceeding to compel the defaulting party’s due performance thereunder.

Upon filing his motion for modification, the father unilaterally decided to reduce the amount of child support and school expenses he was paying to the mother rather than waiting for a determination from the trial court as to whether his modification request would be granted. As such, the father defaulted on his child support obligation. He was not in default until making that unilateral decision.

The mother filed several responsive pleadings including a “Response” to the father’s motion generally agreeing that the trial court possessed the jurisdiction to modify issues of child support, custody, and visitation. She also filed a request for enforcement of past due child support and an award of attorney’s fees.

The trial court conducted a hearing on the parties’ motions. Upon review of the evidence presented, the trial court entered a final order on the pending issues. In the order, the court found that the father had the ability to pay the child support arrear-age but had willfully failed to do so. The court further ruled that neither party had met the burden of proof required to modify the father’s child support obligation and, therefore, the court left the amount unchanged. The court also found that the mother was not entitled to recover any attorney’s fees related to the proceeding since she did not lack the ability to pay same.

The mother filed a timely motion for rehearing in which she argued that the trial court had erred in denying her request for attorney’s fees since the parties’ MSA specifically provided for the payment of fees by a defaulting party.

The trial court later entered an order on the mother’s motion for rehearing stating that the mother was correct in citing to the attorney fee provision in the parties’ MSA as a valid basis for recovering the fees which she incurred in seeking enforcement of the father’s child support obligation. However, the court further noted that the instant proceedings involved many issues which were unrelated to the father’s child support default, including the parties’ competing motions for modification.

The trial court conducted a hearing on the mother’s request for attorney’s fees. Counsel for the mother requested a total amount of $42,177.93 and submitted evidence regarding his hourly rate and number of hours. The court entered an order holding that the mother was entitled to recover reasonable attorney’s fees and costs “in seeking enforcement of payment by the Former Husband when he unilaterally reduced child support payments and reduced and/or suspended private school tuition and expenses contrary to the marital settlement agreement. However, she is not entitled to recover attorney’s fees and costs on the other issues raised in the parties’ pleadings.” The court then concluded that reasonable attorney’s fees incurred by the motion in this matter totaled $13,750.00.

The mother first argues that the instant attorney’s fees order must be reversed because the trial court improperly failed to set forth any findings of fact regarding a reasonable hourly rate and a reasonable number of hours as is required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). The father properly concedes error on this issue; however, he argues that remand is not appropriate in this case because the mother failed to present any evidence regarding the issues of hourly rate and number of hours expended and, therefore, the award of fees should be simply reversed. We disagree. The mother did present evidence to support her motion. In that regard, counsel for the mother provided the trial court with evidence concerning reasonable hourly rates and also submitted a copy of his office file for the court to review. As such, this matter will be remanded for entry of a proper order. See Faircloth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006)(explaining that when award of attorney fees or costs is appealed and record on appeal is devoid of competent substantial evidence to support order appellate court will reverse award without remand, but, when there is some competent evidence in record supporting award, appellate court will reverse and remand for additional findings).

We note however that, on remand, the mother is not entitled to receive a second opportunity to present evidence to the trial court to support her request for fees. The trial court, based upon the evidence previously presented, must enter an order setting forth the reasonable hourly rate and the reasonable number of hours expended, either directly on the issues covered by the default provision of the MSA or which were inextricably intertwined with that issue such that they could not be properly separated out. See Franzen v. Lacuna Golf Ltd. Partnership, 717 So.2d 1090 (Fla. 4th DCA 1998); see also Clipper v. Bay Oaks Condo. Ass’n, 810 So.2d 541 (Fla. 2d DCA 2002).

Importantly, had the father continued to make payments in accordance with his court-ordered support pending a decision by the trial court on his motion to modify, no default would have occurred and the mother would not have been entitled to recover any attorney’s fees pursuant to the parties’ MSA. However, the father chose to unilaterally reduce his payments upon the filing of his modification request, and, as a result, exposed himself to liability for the payment of attorney’s fees.

On cross-appeal, the father argues that he is entitled to receive an award of attorney’s fees under the terms of the parties’ MSA, even though he never filed a request for fees with the trial court, because the mother defaulted by failing to comply with the terms of the parties’ visitation schedule. We disagree.

Our courts have consistently held that trial courts are not permitted to enter awards of attorney’s fees when a request for same has not been properly pled. See Szymanski v. Szymanski, 603 So.2d 73 (Fla. 4th DCA 1992); Alford v. Alford, 594 So.2d 843 (Fla. 5th DCA 1992); Broyles v. Broyles, 573 So.2d 357 (Fla. 5th DCA 1990); Kratzer v. Reimiller, 552 So.2d 1188 (Fla. 5th DCA 1989).

We reverse the trial court’s attorney’s fee order and remand the case for the entry of an amended final order consistent with this opinion. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO and TORPY, JJ„ concur.


author: THOMPSON, J.

text:
    Michael R. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3280.
    District Court of Appeal of Florida, Fifth District.
    May 4, 2007.

      Michael Walker, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

In this rule 3.800(a) proceeding, we reverse the trial court’s denial of Michael R. Walker’s second claim for relief directed at his sentence in Count V (lower court case number 02-06-CF-JS) for a violation of section 794.011(4)(b), Florida Statutes (2001), a first-degree felony. Walker argues in his second claim that his bargained-for 20-year prison sentence on Count V as a Prison Releasee Reoffender (“PRR”) is illegal because section 775.082(9), Florida Statutes (2001) mandates that the trial court may only impose a 30-year sentence as a PRR for a first-degree felony. Walker’s claim, although unorthodox, is correct. Section 775.082(9)(a)(3), Florida Statutes (2001), states in pertinent part:

Upon proof from the state attorney that ... a defendant is a prison releasee reoffender ..., such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows: ... b. For a felony of the first degree, by a term of imprisonment of 30 years.

(Emphasis added). The language in the PRR statute is mandatory and, thus, the trial court has no discretion to impose a lesser sentence. See State v. Garcia, 923 So.2d 1186 (Fla. 3d DCA 2006); State v. Newmones, 765 So.2d 860 (Fla. 5th DCA 2000). Accordingly, Walker has agreed to an illegal sentence as to Count V, which must be vacated. See Wheeler v. State, 864 So.2d 492 (Fla. 5th DCA 2004) (recognizing that “an illegal sentence cannot be imposed even as part of a negotiated plea agreement.”)

We remand this matter to the trial court with directions that the State be provided the option to either agree to the striking of the PRR designation as to Count V or, alternatively, to withdraw from the plea agreement with Walker. Cf. Thomas v. State, 932 So.2d 1221 (Fla. 5th DCA 2006). We affirm the trial court’s denial as to Walker’s remaining claim.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO and LAWSON, JJ., concur.


text:
    Jack Thomas CURRIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5668.
    District Court of Appeal of Florida, First District.
    May 8, 2007.

      Jack Thomas Currie, pro se, Appellant.
    Bill McCollum, Attorney General, Bradley R. Bischoff, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this case is an inmate in the custody of the Department of Corrections who challenges the trial court’s dismissal of his writ of habeas corpus challenging the Parole Commission’s determination of his presumptive parole release date. Although the trial court correctly determined that the proper vehicle for such a challenge is a writ of mandamus filed in Leon County, where the Commission is headquartered, see Sheley v. Florida Parole Commission, 720 So.2d 216, 217 (Fla.1998); Lewis v. Florida Parole Commission, 697 So.2d 965 (Fla. 1st DCA 1997), the proper remedy was to transfer the case to Leon County, rather than dismissing or denying the petition. See Sullivan v. Florida Parole Comm'n, 920 So.2d 106, 106 (Fla. 2d DCA 2006); see also Bush v. State, 945 So.2d 1207, 1214 (Fla.2006). Therefore, we reverse and remand with directions to the trial court to transfer the case to Leon County.

Reversed and remanded with directions.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Jerry Saenz HUGHES, n/k/a Jerry Saenz O’Neal, Appellant, v. Timothy HUGHES, Appellee.
    No. 1D06-0428.
    District Court of Appeal of Florida, First District.
    May 8, 2007.

      Marsha W. Montgomery, Pensacola, for Appellant.
    E. Jane Brehany, Pensacola, for Appel-lee.
   PER CURIAM.

The former wife appeals that portion of a final judgment of dissolution of marriage awarding primary residential custody of the parties’ daughter to the former husband (the appellee). Because the record evidence failed to show (and, accordingly, the trial court did not find) that the former wife’s sexual misconduct (after the parties’ separation, but before their divorce became final) had a direct bearing or impact on the parties’ child’s welfare, the court should not have considered this factor in resolving the issue of custody. See Dinkel v. Dinkel, 322 So.2d 22, 23 (Fla.1975) (quashing the district court’s opinion and remanding with directions to reinstate that part of the dissolution decree awarding primary residential custody of the child to the adulterous former wife, where no competent substantial evidence indicated the adulterous conduct had any direct bearing on the child’s welfare, and competent substantial evidence supported the trial court’s conclusion that awarding custody to the former wife was in the child’s best interest); Burger v. Burger, 862 So.2d 828, 832-33 (Fla. 2d DCA 2003); Jacoby v. Jacoby, 763 So.2d 410, 413 (Fla. 2d DCA 2000); Packard v. Packard, 697 So.2d 1292, 1293 (Fla. 1st DCA 1997) (noting that, although a parent’s sexual conduct may be considered in determining “moral fitness” under the statute, the focus should be on whether the parental behavior had a direct impact on the child); Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996); Smith v. Bloom, 506 So.2d 1173, 1176 (Fla. 4th DCA 1987). However, because the trial court made sufficient findings of fact from the record to support its conclusion that six of the factors set out in section 61.13(3), Florida Statutes (2001), favor the former husband, and that the remaining factors are either inapplicable to the instant facts or are neutral or equal as to the parties, we conclude that any error in the trial court’s considering the “moral fitness” factor is harmless error. In this significant respect, this case is distinguishable from the Dinkel and Packard line of decisions.

The final judgment of dissolution of marriage is AFFIRMED.

BROWNING, C.J., WOLF and KAHN, JJ. concur.


text:
    Gary C. QUILLING, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-1593.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Gary Quilling, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Gary Quilling seeks certiorari review of an order denying his complaint for mandamus relief, in which he challenged the outcome of a prison disciplinary proceeding that resulted in a forfeiture of gain-time. We conclude that the circuit court did not depart from the essential requirements of law when it denied relief, nor did it do so by failing to afford petitioner an adequate opportunity to amend his petition to add an additional claim. Accordingly, we deny the petition for writ of certiorari on the merits as to these issues.

However, as respondent correctly concedes, petitioner’s claim did constitute a collateral criminal proceeding, and the circuit court therefore erred in imposing liens on petitioner’s inmate trust account to recoup filing fees and costs associated with the mandamus proceeding and appellate review thereof. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, the order imposing a lien to recoup filing fees and costs with respect to the mandamus proceedings in the circuit court is hereby quashed. We treat petitioner’s challenge to the order imposing a lien for appellate fees and costs as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430, grant that motion, and quash the appellate fee lien order as well. On remand, the circuit court is instructed to direct the reimbursement of any funds collected from petitioner pursuant to the improper lien orders.

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


text:
    Marc CRUMP, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2087.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Marc Crump, pro se, Appellant.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We have reviewed this case and have found no reversible error. However, we strike the Anders brief filed in this ease pursuant to Smith v. State, 956 So.2d 494, 2007 WL 1108445 (Fla. 1st DCA Apr.16, 2007).

AFFIRMED.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Joseph DAMES, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3425.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Joseph Dames, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Daniel Burke, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Petition for writ of certiorari is DENIED with respect to the writ of mandamus. Petitioner’s action in the lower tribunal is a collateral criminal action as defined by Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), and subsequent cases. Therefore, the trial court’s order imposing a lien on petitioner’s inmate trust account is QUASHED. This action is REMANDED to the trial court for an order reimbursing petitioner’s inmate trust account for monies removed pursuant to the lien.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Ernest FITZPATRICK, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4694.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Ernest Fitzpatrick, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner requests we issue a writ of certiorari to quash the trial court’s order imposing the lien it placed on petitioner’s inmate trust account upon petitioner’s filing of a petition for writ of mandamus. Because the petition for writ of mandamus sought only credit for time served, the petition constituted a collateral criminal proceeding. See e.g., Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Consequently, court costs may not be assessed. See id. The petition for writ of certiorari is GRANTED, and the order imposing the lien is QUASHED.

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


author: SALCINES, Judge.

text:
    Timothy PALLAI, Appellant, v. DEPARTMENT OF REVENUE o/b/o Karen R. Tipton, Appellee.
    No. 2D06-545.
    District Court of Appeal of Florida, Second District.
    May 9, 2007.

      Debra J. Sutton and Sara-Jean Palmer of The Sutton Law Firm, Bartow, for Appellant.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   SALCINES, Judge.

Timothy Pallai appeals an order denying his petition to vacate a Florida “Judgment of Paternity/Order On Temporary Support.” We reverse.

In his petition to vacate, Mr. Pallai asserted that the Florida judgment entered on February 27, 1992, was void. See Fla. R. Civ. P. 1.540(b); M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1081 (Fla. 4th DCA 2000) (“Although rule 1.540(b) imposes a one-year limitations period for filing certain motions to vacate, parties seeking relief from a judgment that is void are subject only to a ‘reasonable time’ requirement.”). A hearing on Mr. Pallai’s petition to vacate was conducted, but no evidence was presented. Instead, the parties were directed to file memoran-da of law. Thereafter, the trial court entered the order denying relief to Mr. Pal-lai.

The trial court should have conducted an evidentiary hearing to consider the merits of the petition. We reverse the order denying Mr. Pallai’s petition and remand this matter to the trial court to conduct an evidentiary hearing to determine the issues of jurisdiction, personal service upon Mr. Pallai, and the amount of credit to which Mr. Pallai is entitled for payments made against any arrearages which may exist. Further, we remand for a complete review of all additional issues raised in Mr. Pallai’s motion for rehearing.

Reversed and remanded.

DAVIS and WALLACE, JJ„ Concur.


text:
    George W. BIERLIN, Appellant, v. Richard LUCIBELLA, Appellee.
    No. 4D06-1820.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      C. Bryce Albu and L. Martin Reeder, Jr. of Reeder & Reeder, P.A., Jupiter, for appellant.
    Norman Malinski of the Law Offices of Norman Malinski, P.A., Aventura, for ap-pellee.
   PER CURIAM.

George Bierlin appeals the denial of motions for attorney’s fees under Florida Statutes section 57.105. We reverse.

Richard Lucibella filed suit against Bier-lin for an injunction under Florida Statutes section 784.046, addressing stalking (along with one other count that is not relevant to this appeal). Lucibella alleged that Bierlin directed mail, magazine subscriptions, and other published material to him, addressing it to “Dick H. Lucibella” and “D. Head Lucibella,” over a period of six months which ended prior to the filing of the complaint.

Bierlin filed a motion to dismiss Lucibel-la’s complaint for failure to state a cause of action, because the injunction count did not meet the statutory requirements for pleading under section 784.046 (including a sworn petition, the specific contents of the petition, and the form of the petition).

The filing of complaints and motions to dismiss went on until the third amended complaint (and until a fourth amended complaint on the other count), after which the trial court dismissed the injunction count and complaint with prejudice for failure to state a cause of action due to noncompliance with the pleading requirements of- section 784.046. During the process of filing complaints and motions to dismiss, Bierlin also filed two motions seeking attorney’s fees under section 57.105, and the trial court retained jurisdiction to rule on these motions in the order of dismissal.

Thereafter, Lucibella appealed the order of dismissal in Case No. 4D06-86, arguing that the pleading requirements of section 784.046 apply only when the petitioner is seeking an ex parte injunction. While that appeal was pending, the trial court considered Bierlin’s section 57.105 motions, and Lucibella contended that the motions should be denied because he was not seeking an ex parte injunction. The trial court denied Bierlin’s section 57.105 motions, concluding that the failure to state a cause of action alone was not a sufficient basis for section 57.105 attorney’s fees and that Lucibella’s complaints were “not so baseless and completely untenable as to be frivolous.” Bierlin appealed the section 57.105 order in this case. This Court then disposed of the order of dismissal appeal by per curiam affirmance, see Lucibella v. Bierlin, 939 So.2d 111 (Fla. 4th DCA 2006), thereby rejecting Lucibella’s ex parte injunction argument, and granted Bierlin’s appellate motion for section 57.105 attorney’s fees.

Trial court orders on motions for attorney’s fees under section 57.105 are reviewed to determine whether the trial court abused its discretion on the issue of whether the complaint included justiciable issues of fact or law (because an award of attorney’s fees becomes mandatory if the complaint included no justiciable issues, see Morton v. Heathcock, 913 So.2d 662, 668 (Fla. 3d DCA 2005)). See Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615 (Fla. 4th DCA 2006).

Section 57.105 provides for an award of attorney’s fees when a party or his counsel knew or should have known that a claim was not supported by material facts or then existing law (with an exception for good faith arguments to change existing law). Bierlin contends that an award of section 57.105 attorney’s fees was required in this case, because Lucibella repeatedly failed to meet the statutory pleading requirements for an injunction under section 784.046 in four separate complaints. See Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709 (Fla. 4th DCA 2004)(section 57.105 attorney’s fees appropriate where party failed to state cause of action by raising identically-flawed claims through the third amended counterclaim). Lucibella responds that the failure to state a cause of action alone is not a sufficient basis for an award of section 57.105 attorney’s fees, and that he was asserting a good faith argument for limiting the existing law regarding pleading requirements to ex parte injunctions.

We conclude that the trial court abused its discretion by finding justiciable issues of fact or law where none were present and denying Bierlin’s section 57.105 motions. This case involved more than a dismissal for failure to state a cause of action. Rather, it involved a dismissal for failure to state a cause of action after four nearly identical attempts to do so and without presenting a justiciable issue of fact or law. Moreover, no cause of action could ever be stated in the form which Lucibella employed due to its non-compliance with the clear and mandatory statutory requirements of section 784.046. Additionally, Lucibella never asserted below that he was attempting to change the law to limit the statutory requirements to ex parte injunctions. Furthermore, it is telling that this Court granted section 57.105 attorney’s fees on appeal of the dismissal order in Case No. 4D06-86. Therefore, we reverse and remand for the entry of an award of section 57.105 attorney’s fees against Lucibella.

Reversed and Remanded.

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3641.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Carey Haughwout, Public Defender, and Allen Ambrosino, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Richard Jones, was convicted of resisting an officer without violence and possession of cocaine with intent to sell or deliver. Jones appeals only his conviction for resisting without violence, arguing that the trial court erred in denying his motion for judgment of acquittal because the State failed to establish a prima facie case that he committed the crime of resisting an officer without violence. We agree that the State failed to present competent substantial evidence at trial that Jones resisted an officer without violence and reverse his conviction and sentence as to this count only.

At trial, the State presented the following evidence. The arresting officer testified that during the afternoon of September 20, 2005, he encountered the defendant, Richard Jones, on the same property where six days earlier he issued Jones a trespass warning. The officer testified that he approached Jones from behind so Jones could not observe his presence. When the officer was about ten to twelve feet away from Jones, he observed a black female approach Jones and give him money, and Jones in return gave her some rock cocaine. The officer initially testified that after the exchange, both the woman and Jones noticed his presence, and Jones turned around, saw the officer, and “went to leave.” The State then questioned the officer further regarding Jones’s actions:

State: As soon as he saw you what did he do?
Witness: His back was to me, so as soon as he turn [sic] and face [sic] me he turned away to, to conceal the item, but it appeared like he was either gonna run or drop or throw the item.
State: Okay, so what did, do you ... Witness: I give him a warning ...
State: What was the warning, what do you say?
Witness: Stop, police.
State: Okay, and what did he do then?
Witness: ... he didn’t do anything, ya’ know from that point he didn’t obey what I was telling him, ya’ know I had a legal purpose for an investigation, but he ignored that um ...
State: Alright, did he ever take off?
Witness: He didn’t get a chance.
State: Okay, so ...
Witness: Okay, he attempted.
State: Okay, so just to clarify, you, he, as soon as he saw you he turned around?
Witness: Yes.
State: And you’re, you have the opinion that based on your training and experience that he was trying to essentially conceal the item, is that ...
Witness: From what I ...
State: Is that accurate?
Witness: Yes sir ...
State: Okay, and you say stop police and what does he do?
Witness: He turns, faces me, then turns away from me like he was going to leave, run the scene or drop the cocaine.
State: Did he appear to you like he was about to run?
Witness: Yes.
State: Okay, what did you do?
Witness: Okay, I deployed a taser, taser strike him ...

The officer testified that he deployed the taser because he thought Jones was about to take off running, and that after Jones fell to the ground from the effects of the taser, he recovered the rock of cocaine from underneath him, secured him, and placed him under arrest.

On cross-examination, the officer further testified that when the woman noticed his presence, Jones “turns around and does this and then turns back around real quick, okay. He went to go, because of the gate it’s open, he went to exit, when he did he got a taser deployment, he fell ...” The defense further questioned the officer, asking:

Defense counsel: ... I won’t make you do sort of a blow up, but you said before he, he didn’t really, that you, you observed what you saw, what you thought to be him starting to leave, but he didn’t really get anywhere?
Witness: Didn’t have time to, sir.
Defense counsel: Okay, so in fact, I believe you testified that he didn’t actually run?
Witness: He was going to, it appeared that he was going to and I got to that point ...
Defense counsel: Right, but he, but he hadn’t gone anywhere?
Witness: I got to that point before he made that other step.

After the State rested its case, the defense moved for judgment of acquittal, arguing that the State failed to prove a prima facie case for resisting an officer without violence. The court denied the defense’s motion, finding that there was “marginal evidence” of resisting an officer without violence sufficient for this count to go to the jury. Following the trial court’s denial of the motion for judgment of acquittal, the defense rested.

On appeal, Jones argues that the trial court erred in denying his motion for judgment of acquittal, because the State failed to present competent substantial evidence that he committed any act that constituted obstruction or resistance. The State disagrees and argues that there was competent substantial evidence presented at trial from which the jury could find that Jones resisted the officer.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. Courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.

Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005).

Jones is charged with violating section 843.02, Florida Statutes (2005), which provides:

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

§ 843.02, Fla. Stat. (2005).

To support a conviction under section 843.02 for resisting an officer without violence, the State must show: (1) the officer was engaged in the lawful execution of a legal duty and (2) the action by the defendant constituted obstruction or resistance of that lawful duty. Mosley v. State, 739 So.2d 672, 675 (Fla. 4th DCA 1999). In this case, only the second element is in dispute.

We agree with Jones that the State failed to present competent substantial evidence that Jones took any action that constituted “obstruction or resistance” of a lawful duty. At trial, the officer’s testimony was that Jones, after being ordered to stop, turned, faced the officer, and then turned away from the officer “like he was going to leave, run the scene or drop the cocaine.” The officer also testified that it “appeared” to him that Jones was about to run or drop the cocaine. However, the officer’s testimony that Jones “turned away” from him is vague at best. This description provides us with no clear picture as to what Jones’s exact movements were, i.e., whether Jones turned his head or whether he turned his whole body and back to the officer. Thus, we are left to speculate about the manner in which Jones “turned away” from the officer and the exact movements he made. Although the officer did perform a demonstration in court, the record is silent as to what the officer actually demonstrated to the jury. We cannot rely on what may have been demonstrated by the officer that could have supported the trial court’s ruling that the State presented competent substantial evidence sufficient to submit the issue to the jury.

Furthermore, although the officer testified that it “appeared” to him that Jones was about to take off running or drop or throw the cocaine, the officer admitted that Jones never actually went anywhere. For example, on direct examination, he was asked “did he ever take off?” and the officer responded “he didn’t get a chance.” Although the officer testified that Jones “attempted” to run, “went to exit,” and “went to leave,” when asked on cross-examination if Jones got anywhere, the officer testified that Jones “didn’t have time to” and that the officer “got to that point before he (Jones) made that other step.” Thus, there was evidence that Jones did not take a single step away from the officer.

The cases cited by the State are also distinguishable and do not provide any support for the State’s argument that a defendant who turns away from a police officer and only appears to be about to run obstructs or resists a police officer. For example, the State relies on Perry v. State, 593 So.2d 1165 (Fla. 1st DCA 1992), in which the defendant, who was caught in a drug exchange, looked directly at the officer who yelled “Police!” and in response, ran, jumped over a fence, and was arrested several minutes later. The court held that “flight, coupled with the apparent knowledge of the defendant that he was the target of the lawful arrest by the police, constituted an obstruction of the officer’s execution of a legal duty.” Id. at 1167. Here, the State presented evidence that Jones “attempted” to run but “didn’t get a chance.” The State, however, presented no evidence that Jones took a single step much less ran from the officer.

Furthermore, regarding the officer’s testimony that Jones turned away to conceal the cocaine and “appeared” like he was going to drop or throw the cocaine, we conclude that this testimony is also not competent substantial evidence that Jones resisted or obstructed the officer. There was no evidence of what physical moves Jones made to support the officer’s conclusion that Jones “appeared” like he was going to drop or throw the cocaine. Moreover, this testimony merely shows that Jones “appeared” like he was about to drop or throw the cocaine, but it does not show that Jones attempted to conceal the cocaine or took any action to resist or obstruct the officer.

Because the State failed to show that Jones made any affirmative actions that constituted “obstruction or resistance” of a lawful duty, Mosley v. State, 739 So.2d at 675, the State failed to present a prima facie case that Jones committed the crime of resisting an officer without violence. Consequently, we conclude that the trial court erred in denying the defense’s motion for judgment of acquittal. Thus, Jones’s conviction and sentence for resisting an officer without violence are reversed.

Reversed and Remanded.

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Pierre GEDEON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3242.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

SHAHOOD, GROSS and MAY, JJ., concur.