author: PADOVANO, J.

text:
    K.E., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D07-2915.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2007.

      Nancy A. Daniels, Public Defender, John W. Hedrick, Assistant Public Defender, and Spencer Bishins, Certified Legal Intern, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, and Heather F. Ross, Assistant Attorney General, Office of the Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Juvenile Justice, Tallahassee, for Respondent.
   PADOVANO, J.

K.E., a child, petitioned this court for a writ of habeas corpus to challenge the validity of her detention, pending the outcome of a juvenile delinquency proceeding. The court granted the petition and issued an order directing the Department of Juvenile Justice to release the child. By this opinion, we now state the reasons for granting relief.

The child was accused of committing a battery on her mother and resisting a police officer without violence. Both offenses are misdemeanors. Following a domestic argument in which the child was reported to have been throwing things around the house, the mother called the police. An officer arrived at the home, and the child allegedly pushed his arm away as he was attempting to handcuff her.

A detention hearing was held the next day before Judge Richard Hood, a senior judge covering the juvenile delinquency docket. The child had a total score of two points on the Risk Assessment Instrument and therefore did not meet the general criteria for detention under section 985.245, Florida Statutes (2007). However, a specific provision in section 985.255(2) authorizes the court to place a child charged with an offense of domestic violence in secure detention if an alternative placement, referred to in the statute as “respite care,” does not exist. Based on this statute, Judge Hood ordered that the child be placed in secure detention.

A space became available at the Capital City Youth Services facility, and the child then moved for release from the custody of the Department of Juvenile Justice. This motion was called up for a hearing on June 6, 2007, before Judge Angela Dempsey. The child’s mother objected to the proposed placement and expressed her fear that the child might run away. At the conclusion of the hearing, Judge Dempsey denied the motion and ordered that the child remain in secure detention. The detention order stated as reasons for continuing to hold the child in secure detention that the mother feared the child would run away from the facility, that she would take drugs, that she would exchange sex for drugs, and that she might commit a battery on her again.

The child petitioned this court for a writ of habeas corpus to challenge this order, but her detention status changed before the court could consider the case. While the petition was pending, the child entered a plea of nolo contendere to the two misdemeanor charges. Judge Hood accepted the plea and placed her on home detention, pending the disposition hearing.

In light of this development, the state contended that the petition for writ of habeas corpus had become moot. The child replied that the controversy continued to exist, because her new detention order, although less restrictive, was still unlawful. Specifically, she argued that the second order was defective because it failed to explain the reasons for placing her in home detention. In response to this argument, the state took the position that the child should have been required to file a new petition for writ of habeas corpus directed to the home detention order.

We decline to dismiss the petition in this ease on the ground that it is moot. It is true, as the state argues, that the petition for writ of habeas corpus was directed to the order entered by Judge Dempsey and that the child was no longer being detained under that order. However, Florida courts have frequently addressed juvenile detention issues after the expiration of the order at issue because they are “capable of repetition yet evading review.” See K.P. v. State, 952 So.2d 1229 (Fla. 5th DCA 2007); T.T. v. Esteves, 828 So.2d 449 (Fla. 4th DCA 2002); W.B.T. v. Esteves, 825 So.2d 1055 (Fla. 4th DCA 2002); T.C. v. Layne, 725 So.2d 1278 (Fla. 4th DCA 1999). Juvenile detention is a remedy that is used only for a brief period of time.

Furthermore, the subsequent home detention order merely changed the form of the restraint. It did not remove the need to determine whether the child was being detained illegally. Judge Hood placed the child on home detention when she entered her plea, but the child did not have a high enough score to justify any restraint, and Judge Hood’s order, like Judge Dempsey’s order before it, failed to state a valid reason for the detention. In these circumstances, we can see no reason why the child should have been required to file a new habeas corpus petition challenging the most recent order.

An order detaining a child in the custody of the state pending a juvenile delinquency hearing must comply with the statutes authorizing juvenile detention. See R.W. v. Soud, 639 So.2d 25 (Fla.1994); S.W. v. Woolsey, 673 So.2d 152 (Fla. 1st DCA 1996). Section 985.24 provides that a child may be detained only for the specific reasons given in the statute. Additionally, section 985.245 states that, in the absence of a specific statutory exception, an order placing a child in detention “shall be based on a risk assessment of the child.”

The risk assessment is done uniformly throughout the state on a standardized document known as a Risk Assessment Instrument. According to the criteria set by this instrument, a child who has a score of twelve or more points qualifies for secure detention, a child who has a score of seven to eleven points qualifies for home detention, and a child who scores below seven points does not qualify for any form of detention.

A trial judge may deviate from the level of restrictiveness required by the scoring, but in that event, the judge must explain why the deviation is necessary. Section 985.255(3)(b) directs that “[i]f the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state in writing, clear and convincing reasons for such placement.” (emphasis added) The written statement of the clear and convincing reasons for deviating from the level of restrictiveness indicated by the standardized scoring is not optional; it is required in order to make a more restrictive placement lawful. See D.B. v. State, 848 So.2d 1219 (Fla. 3d DCA 2003).

The procedure for justifying a deviation promotes a broader legislative policy of controlling the use of detention. This policy is expressed in section 985.02(4), in the following terms: “The Legislature finds that detention should be used only when less restrictive interim placement alternatives prior to the adjudication and disposition are not appropriate.” Other parts of Chapter 985 also reveal a legislative intent to minimize the use of detention. For example, section 985.115(1) states, “A child taken into custody shall be released from custody as soon as reasonably possible.” Section 985.24(2) prohibits the use of detention to allow a parent to avoid responsibility, to facilitate the interrogation of a child, to permit more convenient access to a child, or because an appropriate housing facility is not available. And section 985.24(4) directs that the Department of Juvenile Justice shall “continue to identify alternatives to secure detention.”

If a trial judge were to treat the power to detain a child as a purely discretionary power, the purpose of the detention statute would be subverted. The Legislature has granted judges authority to exercise discretion in those exceptional cases that should not be governed entirely by the standardized scoring, but that discretion must be exercised according to the statutory procedures. Detention is not a remedy to be used indiscriminately.

The child in this case had a total score of two points, which is not enough to justify any form of detention without a written statement of clear and convincing reasons. She would have been eligible for detention based on the charge of domestic violence, but only if there had been a finding that secure detention was necessary to protect the victim. Neither order contained a finding that is sufficient to justify detention.

Judge Dempsey denied the child’s motion for release from secure detention and ordered her continued secure detention in part because the child’s mother feared that she posed an ongoing threat of domestic violence. However, this ceased to be a valid reason for secure detention once the child’s lawyer located an approved alternative placement. Whatever risk may have existed would have been mitigated by the fact that the child would not be living with her mother.

Section 985.255(2) provides for the detention of a child charged with domestic violence only for a limited time and only when the evidence shows that it is necessary. The statute provides in material part:

(2) A child who is charged with committing an offense of domestic violence as defined in s. 741.28 and who does not meet detention criteria may be held in secure detention if the court makes specific written findings that:
(a) Respite care for the child is not available.
(b) It is necessary to place the child in secure detention in order to protect the victim from injury.

§ 985.255(2), Fla. Stat. (2007) (emphasis added).

Judge Dempsey did not make either of the findings that would be required to continue the child’s secure detention under section 985.255(2). Instead, it appears that she attempted to justify a continued detention by stating reasons for departing from the risk assessment instrument. That was not the issue at the hearing on the child’s motion to be released to an alternative living facility. Moreover, the reasons given for the departure (that the mother feared that the child would run away and then perhaps take drugs or engage in sexual activity) are not sufficient to justify an order holding a child with two misdemeanor offenses and a score of only two points in a secure detention facility.

Although the nature of the detention changed, the error was compounded in the subsequent detention order entered by Judge Hood. This order does not explain why any form of detention is necessary. It has a blank space for stating the reasons for imposing a placement more restrictive than that indicated by the Risk Assessment Instrument. It appears that the words, “child is care” were written in the blank but then crossed out. Nothing further is written in the blank space.

These errors lead us to conclude that our main point bears repeating. Juvenile detention is a matter that is controlled by legislation. It is not for us, as judges, to question the wisdom of the legislation. Rather, our task is simply to carry it out. Section 985.255 establishes the criteria for detaining a child, pending the outcome of a juvenile delinquency case. A decision to detain a child must be made according to the statutory criteria.

Petition granted.

ALLEN and BENTON, JJ., Concur.

      . Within the last eighteen months this court has issued writs of habeas corpus directed to Judge Dempsey in fourteen juvenile delinquency cases, including this one. In ten of the previous cases, the writs were issued because the judge either failed to give adequate reasons for departing from the risk assessment instrument or failed to give any reason at all. These include T.A. v. Department of Juvenile Justice, 1D05-5807 (Kahn, Webster and Polston) (the court granted habeas corpus directing the release of a child in part because Judge Dempsey did not prepare a written order explaining the reasons for deviating from the risk assessment); Y.S. v. Department of Juvenile Justice, 1D05-6148 (Davis, Barfield and Hawkes) (the court granted habeas corpus and directed the immediate release of a child who had been held in secure detention, despite the fact that the child scored only one point on the risk assessment); K.C. v. Department of Juvenile Justice, 1D06-1392 (Kahn and Benton, Wolf dissenting) (the court granted habeas corpus and ordered the release of a child on the grounds that Judge Dempsey failed to comply with the requirements of the detention statute and that the child scored only one point on the risk assessment and did not otherwise qualify for secure detention); Z.B. v. Department of Juvenile Justice, 938 So.2d 584 (Fla. 1st DCA 2006) (Wolf, Van Nortwick and Browning) (the court granted habeas corpus, concluding that a curfew violation does not qualify as "absconding” and that Judge Dempsey therefore erred in adding ten points for absconding to the child’s original score of two points); G.T. v. Department of Juvenile Justice, 1D06-3989 (Wolf, Van Nortwick and Browning) (the court granted habeas corpus and ordered the release of a child on the ground that Judge Dempsey erred by adding ten points to the child’s score of three points after expressing her view that it was "ridiculous” that the child’s failure to complete the requirements of his probation did not amount to a new law violation); C.T. v. Department of Juvenile Justice, 1D06-5807 (Ervin, Browning and Allen) (the court granted habeas corpus and directed the immediate release of a child, because Judge Dempsey had erred by adding ten points for absconding, based on a curfew violation, contrary to the court's earlier opinion in Z.B., which involved a writ of habeas corpus directed to Judge Dempsey on the same point of law); D.P. v. Department of Juvenile Justice, 1D06-4032 (Browning, Wolf and Van Nortwick) (the court granted habeas corpus, concluding that Judge Dempsey had erred by adding one point to the score, thus making the child eligible for secure detention); K.C. v. Department of Juvenile Justice, 1D06-6050 (Browning, Davis and Lewis) (the court granted habeas corpus and released a child from secure detention on the ground that Judge Dempsey had failed to state clear and convincing reasons for deviating from the risk assessment instrument); H.D. v. Department of Juvenile Justice, 1D06-6580 (Davis, Wolf and Allen) (the court granted habeas corpus and directed the release of a child on the ground that he had not been charged with a crime of violence [possession of a pocket knife], as Judge Dempsey had concluded); T.D. v. Department of Juvenile Justice, 1D07-1377 (Kahn, Polston and Thomas) (the court granted habeas corpus and directed the immediate release of a child, concluding that the child did not meet the statutory criteria for detention and that Judge Dempsey had therefore erred by ordering him to be held in secure detention).


source: Caselaw Access Project

author: GERSTEN, C.J.

license: Public Domain

text:
    Roberto A. GOMES, Appellant, v. BOATARAMA, INC., a Florida corporation, et al., Appellees.
    No. 3D06-2045.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Adorno & Yoss, LLP, and Jack R. Reiter, and Robert B. Macaulay, Miami, for appellant.
    Robert C. Maland, Miami, for appellees.
    Before GERSTEN, C.J., and FLETCHER, and SUAREZ, JJ.
   GERSTEN, C.J.

Roberto Gomes (“Gomes”) appeals the trial court’s adverse judgment concerning a settlement agreement. Because the trial court deviated from the terms of the settlement agreement, we reverse.

In this settlement agreement, Boatara-ma, Inc. (“Boatarama”) agreed to sell Gomes a boat with a “Bluebook” value of $400,000 to $800,000. The Bluebook is the boating industry’s standard valuation guide. Boatarama further agreed to discount the Bluebook’s listed price by $250,000. Gomes would then pay Boatara-ma the difference.

Boatarama located a boat, a 2002 Sear-ay, which met the parameters of the settlement agreement. Boatarama contacted Gomes, and then it bought the boat. Although Gomes approved of the boat, the parties did not yet agree on the boat’s exact value.

The settlement agreement further provided that if the parties disputed the boat’s value, each could contact an appraiser. The appraisers would determine the boat’s condition, and designate whether the boat should be valued by the Bluebook’s low, medium, or high category. Ultimately, the parties each contacted separate appraisers.

Although the appraisers agreed that the boat was in excellent condition, they could not agree on which of the Bluebook’s three different valuation categories to use. The Bluebook’s three valuation categories varied somewhat from the valuation categories in the settlement agreement.

The Bluebook labels its three valuation categories as low, high and code. The settlement agreement, however, lists the categories as low, medium, and high. Therefore, the only real issue for the trial court to resolve was the dispute over whether to use the Bluebook’s “high” or “code” category to determine the boat’s value.

After hearing from both parties’ appraisers regarding the terminology ambiguity, the trial court determined the boat’s value was $641,720. Then, the trial court used the 2006 Bluebook’s “code” value, added a 10% condition adjustment and added transportation and storage costs. We conclude the trial court deviated from the terms of the settlement agreement.

Because the settlement agreement did not include the term “code” but does include a “high” category, and because the settlement agreement did not include an option to add any adjustments or additional costs, we reverse. We therefore reverse and remand with instructions that the trial court enter a final judgment that reflects the 2006 Bluebook’s “high” value of a 2002 Searay, with no adjustments.

Reversed and remanded with instructions.


author: PER CURIAM.

text:
    Sergio Vazde LOMAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1669.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Sergio Vazde Lomar, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

We dismiss this appeal, as orders denying motions to mitigate brought pursuant to Florida Rule of Criminal Procedure 3.800(c) are not appealable. See Jackson v. State, 936 So.2d 775 (Fla. 5th DCA 2006).

Dismissed.


author: ROTHENBERG, Judge.

text:
    Catalino MELENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1734.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Joseph G. Tesmond, Miami, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

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

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

Reversed and remanded for further proceedings.


text:
    L.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-233.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Marc A. Douthit, Miami, and Jason Joseph, for appellant.
    Hillary S. Kambour; Bernadette Noe, for appellee.
    Before GERSTEN, C.J., and COPE and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

L.M., the mother of a minor child, L.G., appeals a final judgment adjudicating L.G. dependent. As we find that the trial court applied the correct law and there is competent substantial evidence to support its ruling, we affirm. See R.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000); D.R. v. Dep’t of Children & Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005).

Affirmed.


text:
    Sedrick JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 07-1655.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Sedrick Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Garnicki v. State, 951 So.2d 30 (Fla. 3d DCA 2007)(certifying conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005)), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005); Nino v. State, 937 So.2d 756 (Fla. 3d DCA 2006).


text:
    Eddie Louis WILLIAMS, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D06-2630.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Eddie Louis Williams, pro se, Appellant.
    Kim M. Fluharty, General Counsel, and Anthony Andrews, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s argument that the circuit court erred in dismissing his extraordinary writ petition for failure to exhaust administrative remedies is without merit and is rejected. But because the underlying action constituted a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2006), the circuit court improperly imposed a lien upon appellant’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). Appellant preserved this issue by filing in the circuit court a motion to vacate the lien. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007) (stating that when a lien is erroneously placed on a prison trust account, a motion requesting relief from the lower tribunal must be made in order to preserve the issue for appellate review). We accordingly quash that portion of the circuit court’s April 13, 2006, order imposing a lien as the result of appellant filing his petition. The circuit court should direct the reimbursement of any funds that have been withdrawn from appellant’s inmate account to satisfy the improper lien order.

The appeal is AFFIRMED as to the order by which the circuit court dismissed the petition, but is REVERSED as to the challenge to that portion of the indigency order which imposed a lien.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Clyde COY, Appellant, v. MANGO BAY PROPERTY AND INVESTMENTS, INC., Union Title Corporation, American Pioneer Title Company, and Marie Coy, Appellees.
    No. 4D06-3523.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Rehearing Denied Oct. 5, 2007.

      Mary M. Cantwell of Markeity, Roth-man & Cantwell, P.A., Plantation, for appellant.
    Michael L. Grant and Michael A. Weeks of Ward, Damon & Posner, P.A., West Palm Beach, for appellee Mango Bay Property and Investments, Inc.
    Kenneth S. Pollock and Gary R. Shen-dell of Shendell & Pollock, P.L., Boca Ra-ton, for appellee Union Title Corporation.
   PER CURIAM.

Appellant, Clyde Coy, intervenor, appeals the denial of his Motion to Prohibit Sale/Motion to Freeze Proceeds from Sale in a mortgage foreclosure action, arguing that the subject property is his homestead. We agree that the trial court in the foreclosure action erred in denying Appellant’s motion without first determining whether Appellant had a protected homestead right in the subject property. Accordingly, we reverse the order denying his motion and remand for an evidentiary hearing to determine whether the property is Appellant’s homestead.

Appellant and his wife, Marie Coy, were married on June 15, 1955. In 1979, the Coys purchased a home in Hollywood, Florida, where they lived for the next twenty-four years and raised five (5) children. It is undisputed that record title to the home was held in Marie Coy’s name only. Title was held in Marie Coy’s name without complication until October 2001, when, without the knowledge or consent of Appellant and without his joinder on the mortgage agreement, Marie Coy offered the home as security for a mortgage loan with appellee, Mango Bay Property and Investments Inc. (Mango Bay). In February 2002, Marie Coy executed a second mortgage on the home without the knowledge or consent of Appellant and without his joinder on the mortgage agreement.

The Coys separated in 2003, and Marie Coy filed for divorce and for a restraining order. The trial court in the dissolution proceeding (family court) entered an injunction awarding Marie Coy temporary exclusive use and possession of the marital home. The order also prohibited the parties from selling any of the marital property without court order: “Parties shall not sell, destroy, or give away any marital property.”

Meanwhile, while the divorce proceedings were pending, Mango Bay filed a foreclosure action against Marie Coy. The complaint alleged that Marie Coy defaulted on the payment of the mortgage loan executed on February 20, 2002. In August 2008, Appellant filed a motion to intervene in the foreclosure proceeding on the grounds that at the time that Marie Coy executed the mortgage in February 2002, Marie and Appellant were living in the subject property together as husband and wife and that the property is his homestead property. Appellant also filed a complaint for declaratory relief against Mango Bay and Marie Coy seeking a declaration of his rights under the mortgage deed, objecting to the burden on his homestead property represented by the mortgage, and asking the court to declare the mortgage to be of no force and effect. The foreclosure court granted Appellant’s motion to intervene and also entered a Final Judgment By Consent against Marie Coy and in favor of Mango Bay, declaring any rights that Marie Coy had in the property to be subordinate to Mango Bay’s mortgage and finding that Marie Coy agreed to the foreclosure sale of the property to satisfy the amount owed pursuant to the mortgage.

In January 2006, the family court entered a final judgment dissolving the parties’ marriage and awarding alimony. Due to a pending bankruptcy case involving Marie Coy, the trial court in the divorce proceeding bifurcated the equitable distribution issues that “pertain to the former marital home which is currently in foreclosure” and ordered “an automatic stay relative to the distribution of any marital assets or liabilities,” and the family court advised that those issues would be addressed at a later date.

Meanwhile, in the foreclosure action, Appellant amended his complaint for declaratory relief, again objecting to the burden on his homestead represented by the mortgage and asking the court to declare the mortgage to be of no force or effect, and seeking damages. In June 2006, Mango Bay moved to schedule a foreclosure sale, alleging that Appellant was not the titled owner of the subject real property and did not reside in the subject property because of the restraining order, and that the proceeds from the sale of the home be used to pay Mango Bay the amount due under the note and mortgage, which was $114,876 plus interest. The next month, Marie Coy executed a Warranty Deed in which she sold the subject property to a third-party purchaser for $260,000.

Following the execution of the Warranty Deed, Appellant responded by filing a Motion to Prohibit Sale/Motion to Freeze Proceeds From Sale in the foreclosure action, arguing that he had an ownership interest in the home and requesting that the court enter an order prohibiting the sale and freezing the proceeds from the sale until resolution of the declaratory action. The foreclosure court denied Appellant’s motion and ordered that the sale should not be set aside, that Mango Bay was entitled to the funds paying off the mortgage, that Mango Bay should file a satisfaction of mortgage and judgment and dismiss its case, and that the attorney for Marie Coy should hold the net sale proceeds until further order of the family court. In response to Appellant’s objection that the sale violated his homestead rights, the foreclosure court ruled that it was leaving the homestead issue to the family court that would equitably distribute the proceeds of the sale and make findings with respect to homestead or ownership. Following this order, Mango Bay filed a Notice of Voluntary Dismissal with Prejudice in the foreclosure action. Appellant then filed the instant appeal.

After the appeal was filed, the family court found Marie Coy to be in civil contempt for sale of the marital home and awarded attorney’s fees to Appellant. The family court also entered a Final Judgment in November 2006, reaffirming the terms of the January 2006 final judgment. The court found Marie Coy’s sale of the marital home was “wrong, contemptuous, inappropriate and inexcusable.” The court ordered certain disbursements be paid out of the $86,700 in trust for Marie Coy from the sale of the marital home, with the remainder to be divided equally between Marie Coy and Appellant. The court did not make any finding "with respect to homestead.

Appellant argues on appeal that the foreclosure court’s order denying his motion to prohibit sale of the home without first determining whether the subject property was his homestead violates his constitutionally protected homestead right against forced sale. Furthermore, Appellant argues that the court’s failure to hold an evidentiary hearing on the issue violates his due process rights. We agree with Appellant that the foreclosure court erred in permitting the sale of the marital home without first determining whether the property was Appellant’s homestead.

“Homestead” is broadly defined by the Florida Constitution as:

Property owned by a natural person ... to the extent of one hundred sixty acres of contiguous land and improvements thereon ...; of if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family.

S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 569-70 (Fla. 5th DCA 2002)(citing Art. X, § 4(a)(1), Fla. Const.); see also Gold v. Schwartz, 774 So.2d 879, 880 (Fla. 4th DCA 2001).

Article X section 4 of the Florida Constitution provides:

(a)There shall be exempt from forced sale under process of any court, and no judgment, decree, or execution shall be a lien thereon, except, for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or the repair thereof, or obligations contracted for house, field, or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon ...; or if located within- a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale, or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse ...

Art. X, § 4, Fla. Const. (1968 as amended)(emphasis added).

Florida courts have consistently emphasized that the homestead exemption is to be liberally construed in the interest of protecting the family home against the claims of creditors. See Engelke v. Estate of Engelke, 921 So.2d 693, 695 (Fla. 4th DCA 2006). In Snyder v. Davis, 699 So.2d 999, 1001 (Fla.1997), our supreme court explained:

The purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have been given credit under such law.

The court further explained that the Florida Constitution protects homesteads in three distinct ways. Id. at 1001. First, the constitution protects homesteads with an exemption from taxes. Id. Second, the constitution protects the homestead from forced sale by creditors. Id. Third, the homestead provision sets forth the restrictions a homestead owner faces when attempting to alienate or devise the homestead property. Id. at 1001-02.

Furthermore, “a one-half interest, the right of possession, or any beneficial interest in land” gives the claimant a right to exempt it as his homestead. Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832, 833 (1946). It is not essential that the claimant hold the legal title to the land. Id. It is only necessary that the homestead status attaches prior to the attachment of the creditors’ lien. Id. In Gamble, the husband purchased approximately six acres of land and had the deed executed in favor of his wife. Id. at 832. The husband subsequently constructed a home on the property and made other expenditures in the way of upkeep, insurance, and taxes. Id. A creditor filed a bill of complaint alleging that said property be levied upon and sold to pay a certain judgment secured by it against the husband. Id. Gamble and his wife filed separate answers, in which the wife claimed the property as her separate property, while the husband claimed the home as his homestead, entitled to exemption from plaintiffs judgment under the Constitution. Id. The supreme court affirmed the trial court’s holding that the husband’s contributions to his wife’s separate property created an interest in which he was entitled to claim a homestead exemption. Id. at 833. The court reasoned, “There is no question that Gamble was the head of a family and that his contributions to his wife’s separate property gave him an equitable interest on the basis of which he could claim his homestead exemption.” The court further explained, “If the homestead status attached prior to proceedings to subject the property to creditors’ lien, regardless of where the title is lodged, it is exempt.” Id.

Similarly, in Heiman v. Capital Bank, 438 So.2d 932, 933 (Fla. 3d DCA 1983), the court held that “record title is not a prerequisite to a finding that property is homestead. Homestead status may be derived from the husband’s beneficial interest as head of the family in a marital home titled in his wife’s name.” The court concluded that the surviving spouse, who sought to have her condominium declared exempt from forced sale under the homestead provisions of the Florida Constitution, was entitled to demonstrate that her husband retained a beneficial interest in the condominium sufficient to have the property designated homestead even though her name appeared on the deed. Id; see also S. Walls, 810 So.2d at 569-70 (The constitution “does not designate how title to the property is to be held and it does not limit the estate that must be owned, i.e., fee simple, life estate, or some lesser interest ... The individual claiming the homestead exemption need not hold fee simple title to the property.”); Callava v. Feinberg, 864 So.2d 429, 431 (Fla. 3d DCA 2003)(eoncluding that wife was entitled to claim a homestead exemption to the forced sale of the property and the trial court erred in foreclosing her interest in the property, even though wife owned only a beneficial interest in the property and legal title to the home was not in wife’s name.); Engelke, 921 So.2d at 696 (concluding that constitutional homestead protection applied even though decedent had only a one-half interest in the residence and revocable trust held title to the property).

Furthermore, an award of possession of the marital residence to a wife does not extinguish the husband’s homestead. See Cain v. Cain, 549 So.2d 1161, 1163 (Fla. 4th DCA 1989). Once homestead status is acquired, it continues until the homestead is abandoned or alienated in the manner provided by law. Id. To show abandonment, both the owner and his family must have abandoned the property. Id.

It is undisputed that Marie Coy held title to the property which Appellant is claiming to be his homestead. However, according to the cases discussed above, this would not defeat Appellant’s homestead interest. It is also undisputed that the home was purchased during the parties’ marriage in 1979 and remained the marital home until they separated in 2003. Although Appellant left the home in 2003 pursuant to an injunction that awarded Marie Coy temporary exclusive use and possession of the marital home, an award of possession of the marital residence to a wife does not extinguish the husband’s homestead. See Cain, 549 So.2d at 1163. Furthermore, there is no evidence that Appellant “abandoned” the homestead. Based on these facts, we agree that Appellant was entitled to a full evidentiary hearing and determination as to whether he had a constitutionally protected homestead right in the marital home before the trial court could proceed with foreclosure. However, the foreclosure court refused to make that determination, left the homestead issue for the family comet, and ordered disbursement of the sale proceeds to Mango Bay to pay off the mortgage. When the family court issued its final judgment after the foreclosure proceedings had terminated, the family court also failed to make a finding with respect to the homestead issue.

We conclude that the foreclosure court’s refusal to decide the homestead issue is reversible error and therefore reverse the order denying Appellant’s motion to prohibit sale/motion to freeze proceeds from sale, and remand the case to the foreclosure court to determine whether the Appellant has a protected homestead interest in the property.

Reversed and Remanded.

GUNTHER, FARMER and MAY, JJ„ concur.

      . Until 1985, the homestead exemption was limited to individuals who qualified as "head of family." See Art. X, § 4, Fla. Const. (1983). However, in 1984, an amendment to this section of the constitution was approved which changed the term "head of family” to “a natural person,” thereby expanding the class of persons who can take advantage of the homestead provision and its protections. See Pub. Health Trust of Dade County v. Lopez, 531 So.2d 946 (Fla.1988).


author: TAYLOR, J.

text:
    Percy A. TERCERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1139.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.

      Charles Wender, Boca Raton, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

This appeal arises from the trial court’s denial of appellant’s motion to suppress contraband discovered in appellant’s car during a search incident to his arrest on an outstanding warrant. We affirm.

On or about February 9, 2005, appellant was stopped and arrested on an arrest warrant for charges of possession and sale of marijuana, which stemmed from his sale of marijuana to an undercover police detective on October 27, 2004 (Case No. 05-130-CF). Incident to the arrest on the warrant, the police searched appellant’s vehicle and found drugs and drug paraphernalia. This discovery led to additional charges against appellant for possession of hydrocodone, possession of twenty grams or less of cannabis, and use or possession of drug paraphernalia (Case No. 05-230-CF).

Appellant moved to dismiss the undercover drug sale charges filed in Case No. 05-130, asserting objective entrapment. He alleged that the confidential informant (Cl), to whom he sold the marijuana, was his supervisor at work, and that the Cl pressured him and threatened to fire him if he did not sell him marijuana. He further alleged that the Cl was unsupervised and made all the arrangements for the drug transaction. The trial court granted the motion to dismiss, finding that the police conduct in the undercover investigation was “outrageous” and a violation of appellant’s due process rights.

In Case No. 05-0230, appellant filed a motion to suppress the evidence seized from his automobile on February 9, 2005. He argued that the evidence should be suppressed under the “fruit of the poisonous tree” doctrine because it was seized incident to his arrest on a warrant that was tainted by police misconduct. The trial court denied the motion to suppress. The court ruled that the evidence in that case was seized during execution of a valid arrest warrant, fully supported by probable cause, and that any search incident to that arrest was likewise valid. Appellant entered a no contest plea to the charges in Case No. 05-230 and reserved the right to appeal the denial of his motion to suppress.

Although we review the trial court’s factual findings in a ruling on a motion to suppress for competent substantial evidence, we review its legal conclusions de novo. See Martin v. State, 921 So.2d 697, 698 (Fla. 4th DCA), review denied, 935 So.2d 2 (Fla.2006); Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001). Appellant does not dispute the facts leading to discovery of the contraband in this case. Rather, he argues that, as a matter of law, the drugs seized from him during execution of an arrest warrant secured by misconduct (objective entrapment) should be suppressed under the “fruit of the poisonous tree” doctrine. Our review in this case is thus de novo.

This case raises the question whether the “fruit of the poisonous tree” doctrine requires suppression of evidence found in a search incident to an arrest, where the arrest arose from a prior violation of the defendant’s constitutional due process rights. More specifically, we examine the significance of a trial court’s finding of prior police misconduct (objective entrapment) as it bears upon the question of whether an arrest warrant secured by that misconduct may serve as a lawful basis for a search incident to an arrest on that warrant.

After an evidentiary hearing on appellant’s motion to dismiss charges arising from appellant’s sale of marijuana to an undercover detective, the trial judge found that the manner in which the police conducted the operation was “outrageous.” The court dismissed the charges, concluding that the police conduct constituted objective entrapment and a violation of appellant’s due process rights. Appellant argues that the subsequent arrest warrant, and any search incident to an arrest on the warrant, was tainted as the “fruit” of the entrapment.

The “fruit of the poisonous tree” doctrine is a judicially developed “ ‘exclusionary rule,’ which forbids the use of evidence in court if it is the product or fruit of a search or seizure or interrogation carried out in violation of constitutional rights.” Craig v. State, 510 So.2d 857, 862 (Fla.1987) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and United States v. Cruz, 581 F.2d 535 (5th Cir.1978)). However, not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407. Rather, the issue to be decided is “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. at 488, 83 S.Ct. 407 (quoting Maguire, Evidence of Guilt, 221 (1959)). In deciding this issue, courts must consider three factors: “ ‘(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.’ ” State v. Frierson, 926 So.2d 1139, 1143 (Fla.) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.1997)) (relying on the factors explicitly set forth in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)), cert. denied, - U.S. -, 127 S.Ct. 734, 166 L.Ed.2d 570 (2006).

In Frierson, a police officer made an invalid traffic stop of the defendant. During the officer’s identification check, he discovered that there was an outstanding warrant for the defendant. The officer arrested the defendant on the warrant. A search incident to the arrest revealed a firearm, and the defendant was charged with being a convicted felon in possession of a firearm. Applying the factors set forth in Green, the Frierson court held that even though the initial stop of the defendant was invalid, the firearm did not have to be suppressed. See 926 So.2d at 1144. The court concluded that the officer’s discovery of the outstanding warrant was an intervening circumstance which dissipated the taint of the illegal traffic stop and that the search was incident to the outstanding warrant and not incident to the illegal stop. The court emphasized that the outstanding arrest warrant was a judicial order directing the arrest of the defendant whenever he was located. Id.

More recently, the supreme court applied the three-part test in Golphin v. State, 945 So.2d 1174 (Fla.2006), petition for cert. filed, No. 06-1251, 75 USLW 3512 (Mar. 9, 2007). There, the court determined that drug evidence discovered during the search of the defendant incident to an arrest on an outstanding warrant did not have to be suppressed, regardless of whether the defendant’s encounter with police during the traffic stop constituted an unlawful seizure. Noting that the officer had an indisputable obligation to enforce the arrest warrant, the court determined that “the search was incident to the arrest, not to the preceding encounter between Golphin and [the officer].” Id. at 1192. The court stated:

We further note that the United States Supreme Court has held that searches incident to a lawful arrest are constitutionally permissible and reasonable under the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”).

Id.

As in Frierson and Golphin, the evidence in this case was seized during a search incident to appellant’s arrest on an outstanding warrant. Notably, no illegal stop or detention of appellant preceded his arrest on the warrant. The encounter began with the police performing their “indisputable obligation” to arrest appellant on the warrant. Golphin, 945 So.2d at 1192. Thus, the search was incident to the arrest, not to any preceding encounters between appellant and the police.

Appellant argues, however, that the initial police misconduct, i.e. the entrapment activity during the undercover drug sale, rendered the arrest warrant invalid. He urges us to apply the three-pronged Brown v. Illinois analysis to these cireum-stances and find that the search incident to the outstanding “entrapment warrant” was not sufficiently attenuated from the initial police misconduct so as to dissipate the taint. Appellant argues that the drug evidence should be suppressed because there was no break in the causal connection between the unlawful police activity and the search incident to arrest. To illustrate this, he diagrammed the sequence of events, as follows:

Undercover sale = arrest warrant = execution of arrest warrant = search incident to execution of warrant = discovery of new drugs.

The three-part analysis that Frierson requires is done to determine “whether ... evidence obtained after an illegal arrest or search should be excluded” under Wong Sun’s “fruit of the poisonous tree” doctrine. Frierson, 926 So.2d at 1143 (emphasis added). As appellant’s diagram shows, the drug evidence seized from appellant was not obtained after an illegal arrest or search. It was seized during a search incident to appellant’s arrest on an outstanding warrant. The arrest warrant was supported by probable cause and was not invalidated by the trial court’s subsequent finding of entrapment. This finding did not affect the validity of the arrest warrant that led to discovery of the drugs. Appellant’s entrapment defense, though successful, did not strip the initial arrest of probable cause. A claim of entrapment is an affirmative defense, which does not negate the commission of the crime charged or the existence of any element thereof, but seeks an avoidance of the charges. Herrera v. State, 594 So.2d 275, 277 (Fla.1992).

We have been unable to find a case in Florida wherein a defendant attempted to apply the exclusionary rule to evidence that was obtained during a search incident to an arrest on charges that were later dismissed on grounds of entrapment. However, we find the analysis of several other courts on related issues instructive.

In Labensky v. County of Nassau, 6 F.Supp.2d 161 (E.D.N.Y.1998), the plaintiff brought a § 1983 action against the police department, undercover informant, and detectives after his criminal charges were dismissed based on his entrapment defense. The defendant argued that no probable cause existed for his arrest because of the police conduct creating entrapment. The Labensky court disagreed, noting first that entrapment is an affirmative defense. The court further explained:

Thus, the law permits the police to arrest a person who has been induced to commit a crime even if they cannot, at the time of arrest, prove predisposition. Indeed, the police may then conduct further investigation into the defendant’s background — including steps that cannot be taken during the covert phase of investigation — in a search for evidence that might rebut an affirmative defense of entrapment. If a successful entrapment defense strips the initial arrest of probable cause, as Labensky argues, police officers will be deterred from making such arrests and pursuing such investigations. The rule Labensky seeks would, in effect, tell the officers that a defense that might later be raised could retroactively render the arrest itself illegal, subjecting the officer to civil liability.

Id. at 177.

The District Court for the Eastern District of New York made a similar finding in Torres v. Marquardt, No. 93-CV-2993 JG, 1997 WL 1068680 (E.D.N.Y. Apr.3, 1997). There, in addressing the same argument, the court held that the defense of entrapment “does not ‘negate the commission of the crime’ ” or any of its elements. Id. at *4 (quoting People v. Millard, 90 A.D.2d 590, 456 N.Y.S.2d 201, 203 (N.Y.App.Div.1982)). Rather, the defense is a “ ‘confession and avoidance.’ ” Id. (quoting People v. Morris, 68 A.D.2d 893, 413 N.Y.S.2d 757, 758 (N.Y.App.Div.1979)). The court concluded, “[ijndeed, the validity of an arrest does not turn upon the ultimate finding of guilt or innocence, but whether probable cause existed at the time of arrest. Thus, the probable cause arising from Torres’ actions remains unaffected by the subsequent finding of entrapment.” Id. (citation omitted).

Other federal courts have held that “[ejntrapment is not part of our Fourth Amendment probable-cause-to-arrest analysis.” Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir.1998). Whereas a probable cause analysis “requires one to examine the circumstances from the view of an objectively reasonable police officer[,][e]n-trapment ... is an affirmative defense of a criminal defendant to otherwise culpable conduct.” Id. To negate probable cause, “the plaintiff must provide evidence that the officer ‘knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were necessary to the judicial officers’ determinations that probable cause existed for the arrests.’ ” Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 866 (7th Cir.2004) (quoting Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968 (7th Cir.2003)).

Entrapment occurs when “ ‘the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ ” State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). A trial court may properly dismiss criminal charges for such constitutional due process violations. See State v. Williams, 623 So.2d 462, 464 (Fla.1993) (approving reversal of defendant’s conviction for purchasing crack cocaine that was illegally manufactured by law enforcement officials for reverse-sting operations). Indeed, the trial court below dismissed the undercover drug sale charges against appellant as an appropriate remedy after appellant established objective entrapment in that case.

However, the trial court properly declined to exclude the evidence in appellant’s drug possession case. Courts exclude evidence under the “fruit of the poisonous tree doctrine” when they determine that the evidence is the “product or fruit of a search or seizure or interrogation carried out in violation of constitutional rights.” Craig, 610 So.2d at 862. The exclusionary rule serves primarily to redress violations of Fourth Amendment rights. Simply put, we do not believe that the “fruits” doctrine applies to vindicate claims of entrapment.

Even if we were to apply the Brown v. Illinois factors to the factual scenario in this ease, we would nonetheless conclude that the drug evidence did not have to be suppressed as the product or fruit of a search or arrest carried out in violation of constitutional rights. Execution of the arrest warrant was an intervening circumstance that was sufficiently distinguishable from the prior police misconduct so as to dissipate the taint of that “primary illegality.” Furthermore, there was no close temporal proximity between the law enforcement entrapment conduct and the discovery of the drugs during the search incident to the arrest on the warrant.

For the reasons stated above, we affirm the order denying appellant’s motion to suppress.

Affirmed.

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

      . The state did not appeal the order of dismissal.

      . The state argues that because appellant has failed to include a transcript of the hearing on appellant's motion to suppress in the record on appeal, we are precluded from reviewing this issue on appeal. However, we agree with appellant that a transcript is not required for our review because the trial court did not hold an evidentiary hearing on the motion to suppress, but denied it solely on appellant's legal argument that the trial court's finding of objective entrapment precluded admission of the drugs seized during execution of the arrest warrant for the undercover sale.

      . In fact, the supreme court did not find that Golphin was unlawfully seized. It found that, based on the totality of the circumstances, Golphin's encounter with the police was consensual, and that the consensual nature of the encounter did not change into a seizure simply because the police retained Golphin’s identification during a computer check for warrants. See 945 So.2d at 1193.


author: CORTIÑAS, Judge.

text:
    Michael J. BOYD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2174.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.

      Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General and Laura Moszer, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS and LAGOA, JJ.
   CORTIÑAS, Judge.

Michael Boyd (the “defendant”) appeals his conviction for burglary of an occupied dwelling contending that the trial court erred in denying his motion for a mistrial. We affirm.

The defendant was arrested and charged with burglary after he was found by police several blocks from the victim’s home, which had been the subject of a recent burglary. While in custody, the defendant made a taped statement admitting that he entered the victim’s home through an unlocked window because he was homeless and hungry and that, upon realizing that the home was occupied, he immediately left.

At trial, a detective testified that when the victim’s daughter saw the defendant she “simultaneously started crying and said.. ,[’]mommy that’s him.[’]” Defense counsel objected on the basis of hearsay; however, the trial court overruled the objection. During the trial, the victim also testified and identified the defendant in the courtroom as the man who she saw peering through the window near the front door moménts before someone entered through a back window of her home. The defendant did not testify; however, his taped statement was played to the jury.

At the close of the State’s case, defense counsel asked the court to reconsider its ruling that the detective’s identification testimony was admissible since the daughter did not testify and, therefore the statement of identification was inadmissible under section 90.801(2)(c), Florida Statutes (2004). In light of the fact that the daughter did not testify, the trial court granted defense counsel’s request and instructed the jury to disregard the daughter’s out-of-court identification of the defendant.

During the State’s closing argument, the prosecutor made the following comments which the defendant contends merit a new trial:

For the first time in this trial, again, I am confused. If you remember what happened yesterday morning and yesterday afternoon defense counsel ... got up here, stood here and told you that ... he was the one who committed that burglary and that he was just looking for food ... I do not know how [defense counsel] on behalf of defense can get up here with a straight face and tell you the exact opposite at 4:30 today

Defense counsel timely objected to the foregoing comment, but it was overruled.

The prosecutor then continued to make the following statement:

The defendant that day on June 24, 2004, stole something much more valuable than a piece of food and a piece of property. He stole [the victim’s] peace of mind.

Thereafter, defense counsel made another objection and a side bar discussion ensued where defense counsel moved for a mistrial. The trial judge denied defense counsel’s motion for a mistrial stating that, when reviewing the prosecutor’s statement in the totality of the circumstances, the statement referring to the victim’s state of mind was inflammatory, but that any effect would be diminutive. The record reflects that the trial judge’s decision to deny the motion was made after carefully considering the issue of homelessness and the fact that it was a factual element raised by defense counsel throughout the trial, rather than an element of the crime.

Subsequently, the jury found the defendant guilty of burglary of an occupied dwelling. Because the defendant had been convicted and sentenced for three other burglaries, the trial court sentenced the defendant to forty years imprisonment as a violent career criminal. The defendant’s appeal followed.

“A trial court’s ruling on a motion for mistrial is presumed correct and will not be reversed on appeal absent a clear showing of abuse of discretion and that a mistrial was necessary to ensure the defendant a fair trial.” Gonzalez-Valdes v. State, 834 So.2d 933, 936 (Fla. 3d DCA 2003)(citing Hamilton v. State, 703 So.2d 1038 (Fla.1997)). It is well established that the trial court’s power to declare a mistrial and discharge the jury “should be exercised with great care and caution and should be done only in cases of absolute necessity.” Thomas v. State, 748 So.2d 970, 980 (Fla.1999) (citation omitted).

Here, we find no abuse of discretion in the trial court’s denial of the defendant’s motion for a mistrial and conclude that the defendant’s right to a fair trial was not violated. First, the prosecutor’s comment during closing argument regarding defense counsel bears no resemblance to the kinds of statements which Florida courts have found to require a new trial. Cf. Alvarez v. State, 574 So.2d 1119, 1120 (Fla. 3d DCA 1991)(“Don’t let them confuse you, because all you will get from the defense is tearing down. You will not get anything substantive, only inconsistencies ... So, if you are nitpicking and trying to insult somebody’s intelligence, as the defense is really doing today....”); Jackson v. State, 421 So.2d 15, 15 n. 1 (Fla. 3d DCA 1982)(“Would you buy a used car from this guy, ladies and gentlemen of the jury?”); Peterson v. State, 376 So.2d 1230, 1231, 1233 (Fla. 4th DCA 1979)(“a police officer ... had to go down into the dirt, into the slime with the pushers, deal with them at their level and bring the case to court ... Not only do they have to get into these disguises and crawl down there and deal with people like this but they have to deal with people like his lawyer ... ”); De Jesus v. State, 684 So.2d 875, 876 (Fla. 3d DCA 1996)(holding that the prosecutor’s comment during closing argument that “[defense counsel] doesn’t think the evidence is enough. That’s her job. She is defending the defendant” did not mandate reversal); Lewis v. State, 711 So.2d 205, 207 (Fla. 3d DCA 1998)(coneluding that the prosecutor’s statement that defense counsel’s line of questioning was “lame” did not require a new trial). Second, the prosecutor’s statement during closing argument regarding the victim’s state of mind did not materially contribute to the conviction and was not so inflammatory as to have influenced the jury to reach a more severe verdict and, thus, warrant a new trial. See Spencer v. State, 645 So.2d 377, 383 (Fla.1994) (citations omitted)(holding that a prosecutor’s comments during closing argument merit a new trial if the comments “materially contribute to the conviction, [are] .so harmful or fundamentally tainted as to require a new trial, or [are] so inflammatory that they might have influenced the jury to reach a more severe verdict”).

Moreover, we find no merit in the defendant’s contention that the trial court was required to consider any harm that resulted from the inadmissible identification testimony when it considered defense counsel’s motion for a mistrial during the prosecutor’s closing argument. Because the record clearly shows that defense counsel did not raise this issue for the trial court’s consideration when ruling on the defendant’s motion for a mistrial, it was not properly preserved for appellate review. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)(holding that “[e]xcept in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court”); see also Spann v. State, 857 So.2d 845, 856 (Fla.2003) (citation omitted)(“To be preserved for appeal, ‘the specific ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ ”).

Because we find no abuse of discretion in the trial court’s rulings and that the defendant’s right to a fair trial was not violated, the conviction and sentence under review are affirmed.

Affirmed.


author: COPE, J.

text:
    The BOMBAY COMPANY, INC., Appellant, v. Martin BAKERMAN, Appellee.
    Nos. 3D03-1465, 3D03-1532.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.
    Carlton Fields and Robert E. Biasotti and Annette M. Lang, for appellant.
    Robert N. Pelier and Barbara Green, for appellee.

      R. Scott Newman for intervenor The Insurance Company of the State of Pennsylvania.
    Before GERSTEN, C.J. and COPE, J., and SCHWARTZ, Senior Judge.
   On Remand from the Supreme Court of Florida

COPE, J.

This case is before us on remand from the Supreme Court of Florida in Bakerman v. The Bombay Company, Inc., 961 So.2d 259 (Fla.2007). The case has been remanded for proceedings consistent with that Court’s opinion. The parties disagree on what those proceedings should be.

The question presented by the appeal in this case is whether the evidence is legally sufficient to support the jury verdict. Id. at 261-64. The underlying question is whether the employer, The Bombay Company, engaged in conduct which was substantially certain to result in injury to the employee, Martin Bakerman. Id. The Court disapproved this court’s holding that concealment of the danger was an essential element that must be proven. Id. at 263-64.

In its opinion, the Court ruled that it was a jury question whether the employer had engaged in conduct which was substantially certain to result in injury or death. Id. In footnote 4, the Court listed facts which were presented to the jury that “reflect a substantial certainty of injury-” Id. at 265 n. 4.

In light of the foregoing, the jury verdict in this case must be upheld as being supported by competent substantial evidence. We therefore remand the case to the trial court for reinstatement of the jury verdict in favor of plaintiff Bakerman.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Joseph THERMIDU, Appellee.
    No. 3D06-3209.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.

      Bill McCollum, Attorney General and Laura Moszer, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Maria E. Lauredo, Assistant Public Defender, for appellee.
    Before GREEN, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Upon the Public Defender’s concession of error that the defendant’s habitual felony offender sentence of 180 days in county jail was below the guidelines absent written reasons for departure and that the trial court had no jurisdiction to vacate the defendant’s plea and sentence because the State had already filed a notice of appeal, we reverse.

The defendant was charged with three counts of possession of narcotics. The State filed a notice of intent to seek an enhanced penalty as a habitual felony offender. At the arraignment, on December 21, 2006, the State" offered a bottom-of-the-guidelines plea offer of 18.15 months in state prison as a habitual felony offender. Over the State’s objection, the trial court sentenced the defendant to 180 days in county jail as a habitual felony offender. The State filed a notice of appeal of the downward departure guidelines sentence on December 28, 2006. The following day, the trial court vacated the defendant’s sentence and set the cause for trial.

The defense concedes that the 180-day sentence was error because it was below the guidelines and the trial court failed to provide written departure reasons. Further, the defense concedes that the trial court had no jurisdiction to vacate the plea and sentence because the State had already filed a notice of appeal.

Therefore, the cause is remanded in order to give the defendant an opportunity to withdraw his plea and proceed to trial or be re-sentenced under the guidelines. See State v. Brownell, 922 So.2d 244 (Fla. 3d DCA 2006).

Reversed and remanded.


text:
    Frankie Lee JEFFERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1279.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.
    Frankie Lee Jefferson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Mc Bride, 848 So.2d 287, 291 (Fla.2003).


text:
    Craig SEAYS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D06-2785, 4D06-2786.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Rehearing Denied Oct. 5, 2007.
    Michael Minardi of Michael Minardi, P.A., Boynton Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Seays appeals the trial court’s order of a violation of probation, arguing the State failed to meet its burden of proof in presenting mere hearsay evidence. We disagree and affirm.

While Seays was serving a probationary period he was arrested for domestic battery. He pleaded no contest and adjudication was withheld. Based on that arrest, the State filed an affidavit of violation of probation against Seays.

At the VOP hearing, the State presented testimony of the officer who arrived on the scene. The officer testified that upon his arrival, he witnessed the distressed victim together with Seays in a closed bedroom. He also introduced the victim’s hearsay statement that Seays kicked and slapped her as well as photographs depicting the victims appearance at the scene where he observed “redness and swelling” on the left side of her face. The trial court found that Seays committed the alleged violation, thereupon revoking his probation and sentencing him to five years in jail.

In Shepard v. State, 939 So.2d 311 (Fla. 4th DCA 2006), this Court recognized: “To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Id. at 313 (citing Blackshear v. State, 771 So.2d 1199, 1200 (Fla. 4th DCA 2000)).

We find, therefore, in light of the officer’s non-hearsay testimony, the victim’s hearsay statement, as well as Seays’s no contest plea that there was substantial competent evidence to support Seays’s violation of probation. See Thomas v. State, 711 So.2d 96 (Fla. 4th DCA 1998) (holding that in support of a revocation of probation, state may rely on a mix of inadmissible hearsay evidence together with evidence which is admissible at a criminal trial).

Affirmed.

GUNTHER, FARMER and MAY, JJ., concur.


text:
    Huxley PETIGNY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2706.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Attorney General, Miami, for appellant.
    Bill McCollum, Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before GREEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

The appellant appeals his conviction and sentences for organized fraud, grand theft, forgery, uttering a forged instrument and simulating a legal process.

In the record before us, we cannot find the trial court’s denial of his motion for a continuance of the trial to be a palpable abuse of discretion. See Randolph v. State, 853 So.2d 1051, 1062 (Fla.2003)(“Granting a continuance is within the trial court’s discretion, and the court’s ruling on a motion for continuance will be reversed only when an abuse of discretion is shown.” (footnote omitted)); Geralds v. State, 674 So.2d 96, 99 (Fla.1996)(“The denial of a motion for continuance should not be reversed unless there has been a palpable abuse of discretion; this abuse must clearly and affirmatively appear in the record.”); Gorby v. State, 630 So.2d 544, 546 (Fla.1993)(same).

We do however conclude, as properly conceded by the State, that the convictions for organized fraud and grand theft are violative of double jeopardy because they were based on the same facts. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006)(“It is undisputed that double jeopardy principles preclude convictions for both grand theft and organized fraud based on the same conduct.”). We therefore reverse and vacate the organized fraud conviction and remand this cause to the trial court to correct the final judgment in accordance with this opinion.

Affirmed in part, reversed and remanded in part with instructions.


text:
    Justin M. BARBER, Appellant, v. Patricia G. PARRISH, Appellee.
    No. 1D06-5968.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2007.
    Robert Stuart Willis of Willis, Ferebee & Hutton, Jacksonville, for Appellant.
    Henry M. Coxe, III, R.H. Farnell, II, and Kevin B. Cook of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, Justin Barber, appeals a final judgment which orders the disbursement of insurance proceeds to Appellee. Because we agree that the trial court’s adjudication of Appellant’s guilt of first-degree murder was final pursuant to section 732.802(5), Florida Statutes (2003), we affirm.

At the time of her death, April Barber had a life insurance policy that named Appellant, her husband, as the primary beneficiary, and her aunt, Appellee, as the contingency beneficiary. Both parties submitted a claim for the insurance proceeds. When he filed his claim, Appellant was under investigation for his wife’s murder. The insurance company filed an in-terpleader complaint against Appellant and Appellee. Pursuant to a court order, the insurance company deposited the proceeds into a bank account pending the court’s determination of whether Appellant should be denied entitlement to the proceeds under section 732.802(3), Florida Statutes (2003). This statute expressly provides:

A named beneficiary of a bond, life insurance policy, or other contractual arrangement who unlawfully and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement; and it becomes payable as though the killer had predeceased the decedent.

§ 732.802(3), Florida Statutes (2003).

Thereafter on September 15, 2006, Appellant was adjudicated guilty of the first-degree murder of his wife and was sentenced to life imprisonment. Appellee moved for summary judgment pursuant to section 732.802(5), Florida Statutes (2003), which states that “[a] final judgment of conviction of murder in any degree is conclusive for the purposes of this section.” The trial court found that Appellant’s conviction was final for the purposes of the statute even though an appeal was pending, granted Appellee’s motion for summary judgment, and entered a final judgment directing the proceeds of the insurance policy to be distributed to Appellee.

On appeal, Appellant argues that the trial court erred in granting summary judgment because his conviction cannot be considered final before he has exhausted his appellate rights. This argument has previously been rejected. In Prudential Insurance Company of America, Inc. v. Baitinger, 452 So.2d 140, 141 (Fla. 3d DCA 1984), the insured’s husband, who was the primary beneficiary of a life insurance policy, was found guilty of the insured’s murder. The probate court entered an order directing the insurance company to pay the policy proceeds to the personal representatives of the insured’s estate. Id. The insurance company appealed the order arguing that the husband’s conviction could not be considered final due to a pending appeal. Id. at 142. The Third District Court of Appeal examined the legislative intent behind section 732.802 and determined that amendments to the statute demonstrated the Legislature’s intent to make it more difficult for a killer to receive a financial benefit for his wrongdoing. Id. at 142-43. It concluded that the term “final judgment of conviction” meant an adjudication of guilt by the trial court, and it affirmed the trial court’s order directing the insurance company to pay the proceeds to the personal representatives. Id. at 143. See also Cohen v. Cohen, 567 So.2d 1015, 1016 (Fla. 3d DCA 1990) (holding that irreparable harm would not occur to a primary beneficiary, even if her conviction was reversed on appeal, if the estate was distributed to the remaining beneficiaries because she would be able to seek money damages from those beneficiaries).

We agree with the reasoning of the Third District in its finding that the Legislature intended a trial court’s adjudication of guilt to be final for purposes of section 732.802, even if appellate remedies have not been exhausted. We, therefore, conclude that the trial court properly granted summary judgment in favor of Appellee and accordingly affirm the judgment.

AFFIRMED.

BARFIELD, DAVIS, and LEWIS, JJ., concur.


author: ALLEN, J.

text:
    Vicki LUCAS, Appellant, v. ENGLEWOOD COMMUNITY HOSPITAL and RSKCO, Appellees.
    No. 1D06-5161.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2007.

      Rosemary B. Eure, Sarasota; and Bill McCabe, Longwood, for Appellant.
    Mark D. Tinker and Jack A. Weiss of Fowler White Boggs Banker, P.A., St. Pe-tersburg, for Appellees.
   ALLEN, J.

Section 440.20(7), Florida Statutes, provides that when compensation payable under a workers’ compensation “award” is not paid within seven days after it becomes due, there shall be added to such unpaid compensation an amount equal to twenty percent thereof. When a claimant who is not represented by counsel enters into a washout settlement agreement, the amount payable under the settlement is an award of compensation for which the unrepresented claimant is entitled to the additional twenty percent specified by section 440.20(7) in the event of late payment. But section 440.20(ll)(c), Florida Statutes, provides that the amount payable under a washout settlement entered into by a represented claimant is not an award of compensation. Accordingly, section 440.20(7) does not apply in connection with a washout settlement entered into by a represented claimant. The appellant in this case argues that this disparate treatment between unrepresented and represented claimants violates the equal protection clauses of the state and federal constitutions. We affirm because the appellant has not demonstrated that this statutory distinction lacks a rational relationship to a legitimate state purpose.

Section 440.20(ll)(c) provides, in relevant part,

[W]hen a claimant is represented by counsel, the claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the employer and the carrier from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant. The settlement agreement requires approval by the judge of compensation claims only as to the attorney’s fees paid to the claimant’s attorney by the claimant. ... Any order entered by a judge of compensation claims approving the attorney’s fees as set out in the settlement under this subsection is not considered to be an award and is not subject to modification or review.

Because section 440.20(ll)(c) does not negatively impact a suspect class or result in the deprivation of a fundamental right, the appellant’s challenge is subject to a rational basis review. Under this minimal level of scrutiny, the appellant bears the burden of demonstrating that the statutory distinction at issue in this case has no rational relationship to a legitimate state purpose. See Level 3 Communications, LLC v. Jacobs, 841 So.2d 447 (Fla. 2003); Enterprise Leasing Co. South Central, Inc. v. Hughes, 833 So.2d 832 (Fla. 1st DCA 2002). The appellees have no obligation to prove that the legislature’s assumptions about the benefits of the statutory distinction at issue would be realized, nor does such evidence have to be present in the record for the legislation to survive the challenge. Tiedemann v. Department of Management Services, 862 So.2d 845 (Fla. 4th DCA 2008). Indeed, even if it appears that the legislature has made an improvident, ill-advised, or unnecessary decision, the law must be upheld if there is any state of facts that may reasonably be conceived to justify it. A determination of whether a rational basis exists is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. See Zurla v. City of Daytona Beach, 876 So.2d 34 (Fla. 5th DCA 2004); Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

We note initially that the appellant is complaining of the disparate treatment of represented claimants at a point in post-settlement proceedings when represented claimants have already received different treatment than that extended to unrepresented claimants. Unlike an unrepresented claimant who is subject to considerable oversight by the judge of compensation claims when she negotiates a washout settlement, see section 440.20(ll)(b), Florida Statutes, a represented claimant is free to negotiate her settlement with only minimal oversight by the judge of compensation claims. The appellant does not challenge this initial disparity; indeed, she concedes that there is a rational basis for it, stating that a “represented Claimant has an attorney looking out for his wellbeing, whereas an unrepresented Claimant does not,” and that “one would certainly presume that an attorney representing the Claimant would be looking out for that Claimant’s best interest, and would not agree to settle the workers’ compensation case unless it was in the Claimant’s best interest.”

For the same reason, however, a rational basis exists to support the legislature’s decision to make section 440.20(7) inapplicable when a claimant has entered into a settlement agreement while represented by counsel. A represented claimant is not precluded from negotiating for the payment of settlement proceeds within a particular time period or from negotiating for an increased benefit should the payment be late. The legislature therefore might rationally have assumed that a claimant’s attorney would negotiate for the inclusion of such terms in a settlement agreement when doing so would be in the claimant’s best interests. As the appellant has acknowledged, by limiting the degree to which a judge of compensation claims must supervise a settlement under section 440.20(ll)(c), the legislature has already apparently embraced the presumption that a claimant’s attorney will act in the claimant’s best interests during these negotiations.

AFFIRMED.

BARFIELD and HAWKES, JJ., concur.


author: SAWAYA, J.

text:
    Christine THOMAS, M.D., Appellant, v. OSLER MEDICAL, INC., Appellee.
    No. 5D06-2529.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.

      Craig M. Rappel, of Rappel Health Law Group, P.L., Vero Beach, for Appellant.
    H. Gregory McNeill and Stephanie A. Begy of Lowndes, Drosdick, Doster, Kan-tor & Reed, P.A., Orlando, for Appellee.
   SAWAYA, J.

Christine Thomas appeals the order denying her motion to dissolve a temporary injunction that prohibited her from engaging in the practice of medicine in violation of a covenant not to compete she had entered into with her former employer, Osier Medical, Inc. Because we do not believe that the trial court abused its discretion in denying the motion to dissolve the injunction, we affirm.

The covenant not to compete, which is part of a broader employment contract entered into between Thomas and Osier, provides:

During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, the Physician agrees not to engage in the practice of medicine, or to be a shareholder, partner, employee or agent of any entity in the practice of medicine, within a ten (10) mile radius of Physician’s primary practice location.

The employment agreement also prohibited Thomas from soliciting, directly or indirectly, any of Osier’s patients or employees for a period of two years following termination of the agreement.

After working for Osier for approximately two years, Thomas terminated her employment and, within a span of a few days, she moved out of the third floor office she had occupied while employed by Osier, moved into her new office on the first floor of the same building, began practicing medicine at that location, hired three former Osier employees to work for her, and began providing medical services to patients she had cared for while employed at Osier. The trial court found that within a matter of a few months after Thomas terminated her employment, she had accumulated the files of 617 former Osier patients. Further discussion of the facts is not necessary. Suffice it to say that at the conclusion of a three-day evi-dentiary hearing, the trial court entered a temporary injunction at the behest of Osier prohibiting Thomas from violating the terms of the employment agreement, particularly the terms of the covenant not to compete.

The trial court set bond, Thomas posted the bond, and rather than appeal the order granting the temporary injunction, which she had the right to do, see Fla. R.App. P. 9.130(a)(3)(B), Thomas filed a motion to dissolve the injunction. The trial court entered an order denying that motion, and it is from this order that Thomas appeals. Our standard of review in determining whether a trial court properly refuses to dissolve a temporary injunction is abuse of discretion. Meyers v. Club at Crystal Beach Club, Inc., 826 So.2d 1086, 1089 (Fla. 5th DCA 2002); Knox v. Dist. Sch. Bd. of Brevard, 821 So.2d 311 (Fla. 5th DCA 2002).

When a motion to dissolve is directed to a temporary injunction entered after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution. Hunter v. Dennies Contracting Co., 693 So.2d 615, 616 (Fla. 2d DCA 1997); McCahill v. Braishfield Assocs., Inc., 661 So.2d 399 (Fla. 5th DCA 1995). If the matters raised in the motion to dissolve either were raised or could have been raised during the contested hearing to determine the initial request for the injunction, a trial court does not abuse its discretion in denying the motion. Pecora v. Pecora, 697 So.2d 1267, 1269 n. 3 (Fla. 5th DCA 1997). Hence, “an injunction with notice should only be dissolved where the facts have changed to the point that equity dictates the injunction is no longer needed.” City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660, 662 (Fla. 5th DCA 2001). Here, the trial judge found that Thomas presented nothing new in her attempt to dissolve the temporary injunction when he declared that “we’re plowing plowed ground.” Accordingly, the motion to dissolve was properly denied.

It is clear from Thomas’s brief that she moved to dissolve the temporary injunction, rather than filing a direct appeal of the injunction, based upon her reliance on the statement in Yardley v. Albu, 826 So.2d 467, 469 (Fla. 5th DCA 2002), that “when the party against whom a preliminary injunction is entered does not file a motion to dissolve the injunction pursuant to rule 1.610(d) prior to the direct appeal, the appellate court may not inquire into the factual matters presented; instead, the court’s inquiry is limited to the legal sufficiency of the trial court’s order, the complaint, and any supporting documents.” She was apparently operating under the belief that if she did not file the motion first, the consequence on appeal would be that this court would not address the factual sufficiency underlying the injunction. Although we certainly understand why the language in Yardley would lead Thomas to reach the conclusion she did, she is wrong, and we recognize that we should clarify when a motion to dissolve should be filed to allow appellate review of the factual underpinnings of a temporary injunction.

Pursuant to rule 1.610, Florida Rules of Civil Procedure, in certain circumstances, a temporary injunction may be granted on an ex parte basis without notice and an evidentiary hearing. See Florida High Sch. Activities Ass’n, Inc. v. Benitez, 748 So.2d 358 (Fla. 5th DCA 1999). In this instance, the trial court decides whether to issue the temporary injunction based on the pleadings and affidavits before it. Conversely, notice followed by an evidentiary hearing may precede the issuance of a temporary injunction, and in such an instance, the trial court relies on the testimony presented along with other appropriate evidence to determine whether to grant or deny the injunction. See Montville v. Mobile Med. Indus., Inc., 855 So.2d 212 (Fla. 4th DCA 2003).

In cases where the enjoined party takes a direct appeal from an ex parte injunction and does not file a motion to dissolve, in which instance there obviously is no factual record to be reviewed on appeal because there has been no evi-dentiary hearing, the appellate court is constrained to review only the legal sufficiency of the order, the complaint, and any supporting documents. Hotel-Motel, Rest. Employees & Bartenders Union, Local 339 v. Black Angus of Lauderhill, Inc., 290 So.2d 479, 482 (Fla.1974) (“[A] defendant may take an interlocutory appeal from an order issuing a temporary injunction without notice and seek review of the legal sufficiency of the complaint and supporting affidavits. The appellate court may not review the factual matters unless a motion to dissolve is filed and a hearing held.”); Lewis v. Sunbelt Rentals, Inc., 949 So.2d 1114, 1115 (Fla. 2d DCA 2007) (citing Fla. High Sch. Activities Ass’n v. Marsonek, 805 So.2d 868, 869 (Fla. 2d DCA 2001)); Kailin Hu v. Haitian Hu, 942 So.2d 992 (Fla. 5th DCA 2006); Orange County v. Webster, 503 So.2d 988 (Fla. 5th DCA 1987). Hence, the appellate court may not address the factual basis for issuance of the injunction. Black Angus; Lewis. In such instances, a motion to dissolve and an evidentiary hearing are necessary to make a factual record that an appellate court can review. Montville. If a motion to dissolve an ex parte temporary injunction is filed and a hearing on the motion is held, “the party who obtained the injunction bears the burden of going forward with evidence to establish a prima facie case to support the injunctive relief,” Hunter, 693 So.2d at 616; see also Shea v. Cent. Diagnostic Servs., Inc., 552 So.2d 344 (Fla. 5th DCA 1989), and the appellate court may review the factual basis for the injunction. Montville.

If the enjoined party takes a direct appeal after notice and a hearing without moving to dissolve, an appellate court may consider the underlying factual matters because there is a record of the evidence and testimony presented upon which the trial court based its decision to grant the temporary injunction. See Montville, 855 So.2d at 216 n. 2 (recognizing that in cases where there has been a full evidentiary hearing prior to issuance of the temporary injunction, the appellate court is not precluded from inquiry into factual matters presented at the evidentia-ry hearing).

To summarize, a motion to dissolve is necessary only where an ex parte temporary injunction was issued. If proper notice was provided and an evidentiary hearing conducted prior to issuance of the temporary injunction, an appeal should be filed to review the propriety of the temporary injunction; in this instance, a motion to dissolve is limited to raising only new matters and a trial court will not abuse its discretion in denying the motion if the enjoined party does not establish that a change in conditions justifies dissolution.

Adverting to the quoted language in Yardley, we believe it is dicta because it was not a necessary ingredient of the ultimate decision reached by this court. We decided Yardley solely on the basis that the order granting the injunction did not set forth sufficient factual findings and because the injunction failed to maintain the status quo. These deficiencies required remand to the trial court to enter an appropriate order and prevented us from getting to the point where we were confronted with the issue of the sufficiency of the factual underpinning of the injunction. Nevertheless, because Yardley involved notice and an evidentiary hearing, we acknowledge that the earlier quoted language from Yardley should not have been included in the opinion. Because we believe that Thomas may have been misled by the dicta in Yardley, we have reviewed the entire record, including all of the evidence and testimony presented at the evi-dentiary hearing held before the temporary injunction was entered, just as we would have done had Thomas taken an appeal rather than proceeding with a motion to dissolve, and we have determined that the trial court properly entered the temporary injunction.

AFFIRMED.

PLEUS and THOMPSON, JJ., concur.

      . Covenants not to compete are governed by section 542.335, Florida Statutes. Section 542.335(1)(j) authorizes a trial court to enter a temporary injunction as a method of enforcing a covenant not to compete. See Walsh v. Paw Trucking, Inc., 942 So.2d 446 (Fla. 2d DCA 2006); Supinski v. Omni Healthcare, P.A., 853 So.2d 526 (Fla. 5th DCA 2003).

      . A trial court may not conduct an evidentiary hearing if the request for temporary injunction is made without notice to the other party. Fla. R. Civ. P. 1.610(a)(2) (stating that where no notice is given, the trial court is limited to considering the affidavit or verified pleading when deciding an injunction motion).

      . As the author of Yardley, I confess the error, which is mine alone. My error, which resulted from not taking the time to more carefully analyze the pertinent case law, is reminiscent of the mistake made by the wayward traveler that caused him to fall off the cliff while trying to make his way to the bottom of the ravine — although he landed on the very spot of his intended destination, he lamented the fact that he did not more closely read the detour sign that would have directed him to safer passage. Because the result and legal analysis in Yardley are correct, it has been suggested that my error is analogous to instances where the tipsy coachman rule is applied. However, I would prefer to avoid any comparison to a buggy that arrived at its intended destination because it was pulled by a horse that had more sense than the drunken coachman. Although some may consider the analogy quite apt, I would prefer the former over the latter for the obvious reasons.


text:
    Lamont BROOKENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1496.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.

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

Lamont Brookens was found guilty by a jury of battery on a law enforcement officer, resisting an officer without violence (a lesser included offense of the crime charged, resisting with violence), tampering with evidence, and possession of drug paraphernalia. Brookens was sentenced to five years’ imprisonment as a prison releasee reoffender for the battery offense; five years’ imprisonment for the tampering offense; one year in the county jail for the resisting offense; and one year in the county jail for the possession offense. All of the sentences were ordered to be served concurrently. In this appeal, Brookens claims: (1) an erroneous jury instruction warrants reversal of his conviction for resisting an officer without violence; (2) the trial court erred in denying his motion for judgment of acquittal as to the battery charge; and (3) the trial court erred in utilizing the battery offense to sentence him as a prison releasee reoffender.

We affirm without further comment as to the first two issues. Regarding the third issue, however, we agree with Broo-kens that the trial court erroneously utilized his conviction for battery on a law enforcement officer as a qualifying offense to sentence him as a prison releasee reof-fender. In State v. Hearns, 961 So.2d 211 (Fla.2007), the Florida Supreme Court observed that section 775.082, Florida Statutes, which authorizes a qualifying individual to be sentenced as a prison releasee reoffender, does not specifically list battery on a law enforcement officer as a qualifying offense. The court also noted that in addition to those offenses specifically listed in the statute, section 775.082(9)(a)l. includes as a qualifying offense “[a]ny felony that involves the use or threat of physical force or violence against an individual-” § 775.082(9)(a)l.o., Fla. Stat. (2005). The court analyzed the elements of the offense of battery on a law enforcement officer to determine whether it qualifies as a felony that involves the use or threat of physical force or violence and concluded that it does not. Because battery on a law enforcement officer is not a qualifying offense under section 775.082, Brookens was improperly sentenced as a prison releasee reoffender.

Accordingly, we reverse the sentence imposed on Brookens as a prison releasee reoffender for battery on a law enforcement officer and remand for resentencing on that count. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PLEUS and THOMPSON, JJ., concur.