author: PARIENTE, J.

text:
    Paul J. BARCO, Petitioner, v. SCHOOL BOARD OF PINELLAS COUNTY, Respondent.
    No. SC07-261.
    Supreme Court of Florida.
    Feb. 7, 2008.

      Samuel R. Mandelbaum of Mandelbaum, Fitzsimmons, Hewitt, and Metzger, P.A., Tampa, FL, for Petitioner.
    Matthew C. Lucas and Brian A. Bolves of Bricklemyer, Smolker, and Bolves, P.A., Tampa, FL, for Respondent.
   PARIENTE, J.

Paul Barco seeks review of the decision of the Second District Court of Appeal in Barco v. School Board of Pinellas County, 946 So.2d 1244 (Fla. 2d DCA 2007), in which the court certified conflict with the decisions of the other district courts of appeal in Martin Daytona Corp. v. Strickland Construction Services, 941 So.2d 1220 (Fla. 5th DCA 2006), Byrne-Henry v. Hertz Corp., 927 So.2d 66 (Fla. 3d DCA), review dismissed, 945 So.2d 1289 (Fla.2006), Swift v. Wilcox, 924 So.2d 885 (Fla. 4th DCA 2006), review denied, 949 So.2d 199 (Fla.2007), and Norris v. Treadwell, 907 So.2d 1217 (Fla. 1st DCA 2005), review dismissed, 934 So.2d 1207 (Fla.2006). The conflict issue involves the proper interpretation of the time deadlines governing the service of motions for costs and attorneys’ fees pursuant to Florida Rule of Civil Procedure 1.525 as it existed in 2004. All of the district courts of appeal, except the Second District, have construed the rule as setting an outside deadline in which the motion for costs or fees is untimely only if served more than thirty days after the filing of the judgment. The Second District, however, has held that the rule creates a narrow window for serving the motion that begins only after the filing of the judgment and closes thirty days later. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons discussed, we conclude that the rule sets only an outside deadline and accordingly quash the decision of the Second District.

BACKGROUND

Barco owned real property that was the subject of an eminent domain proceeding instituted by the School Board of Pinellas County (“School Board”) pursuant to chapters 73 and 74, Florida Statutes. The property was needed for expansion of an elementary school. The issue of compensation for the property taken was resolved through mediation, with the agreement that the court would retain jurisdiction to resolve attorneys’ fees and costs, although no final judgment was entered at that time. Disputes arose between the parties that resulted in Barco serving a “Motion to Enforce Settlement, with Request for Interest, Attorneys Fees & Costs.” As its name indicates, in addition to seeking an order enforcing the settlement, the motion also set forth the attorney’s fees and costs to which Barco asserted he was entitled.

At the hearing on Barco’s motion to enforce settlement, the trial court ruled that the School Board should pay the agreed sums, including statutory attorneys’ fees, and that the court would reserve jurisdiction on any contested costs and on the question of interest, which the School Board also contested. The trial court then entered a final judgment which required the School Board to pay both the compensation that had been agreed to in the Mediated Settlement Agreement and statutory attorneys’ fees. The judgment reserved jurisdiction to determine any and all issues regarding reasonable costs, interest and any additional attorneys’ fees.

More than three months after the filing of the judgment, Barco filed and served a Motion to Tax Costs in the amount of $12,411.21 relating to costs of real estate appraisers, court reporters, plats, maps, express delivery, and document services. These were the same costs sought in the earlier motion, with the addition of a court reporting bill related to the motion to enforce the mediated settlement agreement. A hearing was held on the Motion to Tax Costs at which the School Board objected to the award of any costs on the ground that the motion to tax costs was served more than thirty days after the judgment. Barco countered with the explanation that his first motion for costs had been included in the Motion to Enforce Settlement, which was served November 9, 2004— twenty-three days prior to entry of the final judgment on December 2, 2004. The School Board then contended that the early motion was not timely under Florida Rule of Civil Procedure 1.525. The trial court agreed with the School Board and followed Second District precedent holding that rule 1.525 creates a bright-line requirement that, to be timely, the motion for fees and costs must be served within the thirty-day window after a judgment, not preceding it. Barco appealed to the Second District, resulting in the decision now before the Court, in which the district court adhered to its precedent in Swann v. Dinan, 884 So.2d 398 (Fla. 2d DCA 2004), and certified conflict with the four other district courts in Martin Daytona, Byrne-Henry, Swift, and Norris.

We first discuss the impetus for the adoption of the rule at issue setting a time requirement for service of motions for attorneys’ fees or costs. We then discuss how the conflict cases have interpreted and applied the rule at issue. Finally, we analyze the language and intent of the rule, applying it to the instant case and concluding that the rule does not create a limited thirty-day window following the judgment in which the motion for attorneys’ fees or costs must be served in order to be timely.

ANALYSIS

The version of rule 1.525 at issue in this case states:

Rule 1.525. Motions for Costs and Attorneys’ fees
Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

The 2004 version of the rule is identical in its text to the 2001 rule. Prior to the adoption of rule 1.525 in 2001, “Florida case law permitted motions for attorney’s fees to be filed within a reasonable time of the plaintiffs abandonment of the claim or within a reasonable time after final judgment is entered.” E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449, 451 (Fla. 3d DCA 2003) (citing Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991)). We are unable to locate any case that has held under the law in effect before the 2001 rule that a motion filed before judgment would be untimely or unreasonable. Furthermore, under Stockman, a unanimous Court held that, despite the requirement that motions for attorneys’ fees be filed within a reasonable time after the entry of judgment, a party seeking attorneys’ fees also had to plead entitlement to fees in the complaint or answer. Id. at 838. As this indicates, the overriding intent of the filing and pleading requirements appeared to be provision of timely, adequate notice to the opposing party. It was for this same reason that the “reasonable time” standard came under criticism — because in some cases it did not provide prompt enough notification of the specifics of the claim for fees. In adopting rule 1.525, this Court did not overrule Stockman’s pleading requirement or the underlying objective of early, detailed notification of claims for fees and costs.

Rule 1.525 was adopted to establish an explicit time requirement for service of fee and cost motions in order to resolve the uncertainties caused by the “reasonable time” standard. See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 600 (Fla.2006). The Court is now asked to decide whether the time requirement of rule 1.525 established only a narrow window of thirty days following the judgment in which to serve the motion for fees and costs or whether, instead, it prescribed only the latest point at which the motion may be served.

THE CONFLICT CASES

The Second District held in Barco that a motion served before entry of the judgment was not timely under rule 1.525, based on the premise that the rule sets forth only a thirty-day window following the judgment in which the motion may be served. In so doing, the Second District certified conflict with decisions of the First District in Norris, the Fourth District in Swift, the Third District in Byrne-Henry, and the Fifth District in Martin Daytona. Each of these decisions involves the service of a motion for fees and costs before the filing of the judgment in the case. Importantly, each court found the early motion to be timely according to its interpretation of the intent of the rule.

In Norris, the First District held that a motion for fees and costs served after the jury verdict but before the personal injury judgment was timely under the 2004 version of rule 1.525, reasoning:

In our view, the primary evil to be addressed by the supreme court’s adoption of Rule 1.525 was the uncertainty created by excessive tardiness in the filing of motions for fees and costs [under the pre-2001 “reasonable time” requirement]. Decisions in which the courts found a motion untimely under the “reasonable time” standard generally note prejudice or unfair surprise.
In contrast, we have found no cases where an appellate court applied the “reasonable time” standard to a motion served before entry of judgment, and found prejudice or unfair surprise to a party, so as to conclude the motion was untimely. In fact, it is hard to imagine a situation where a motion for fees and costs, filed after an adverse jury verdict, but before filing the judgment, could ever be prejudicial or cause unfair surprise to the losing party.
We conclude the purpose of Rule 1.525 is fully accomplished by an interpretation that establishes the latest point at which a prevailing party may serve a motion for fees and costs. The party seeking fees may serve a motion as soon as entitlement is established. The motion, however, must be served no later than 30 days after filing of the judgment.

Norris, 907 So.2d at 1218-19 (citations omitted). The First District went on to certify conflict with the Second District’s decision in Swann and this Court initially accepted review. Norris v. Treadwell, 919 So.2d 435 (Fla.2006). However, the Court ultimately discharged jurisdiction and dismissed review, noting that the rule had been amended in 2006 to provide that the motion must be served “no later than” thirty days after the judgment. See Norris v. Treadwell, 934 So.2d 1207, 1207 (Fla.2006).

In the year following the First District’s decision in Norris, the Fourth District in Swift, a breach of contract action, held that a motion for fees and costs served before judgment was timely under rule 1.525. The Swift court cited Norris and reasoned that the rule does not specify the earliest time when a motion for costs and fees may be served but instead “establishes the latest point at which a prevailing party may serve a motion for fees and costs.” 924 So.2d at 887 (quoting Norris, 907 So.2d at 1218). The court in Swift explained:

This interpretation is consistent with the language of the rule, which provides that the motion must be served “within 30 days after filing of the judgment.” Fla. R. Civ. P. 1.525 ([Emphasis] supplied). “When used relative to time,” the preposition “within” has been defined as meaning “any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than.”

924 So.2d at 887 (citing Black’s Law Dictionary 1487 (5th ed.1979)). The Fourth District also certified conflict with Swann but this Court denied review. See Swift v. Wilcox, 949 So.2d 199 (Fla.2007).

Shortly after the Fourth District’s decision in Swift, the Third District decided Byrne-Henry, which also held that a motion served before the filing of a notice of voluntary dismissal was timely under the 2004 version of rule 1.525. Byrne-Henry, 927 So.2d at 67. The Third District agreed with the First District’s decision in Norris, which it described as holding that, although the rule does create a bright-fine test, it is only to establish the latest date a motion may be served. Id. at 68.

In Martin Daytona, the issues were whether rule 1.525 applies to motions filed in the circuit court based on awards emanating from arbitration and, if so, whether a motion served before entry of the judgment is timely under the rule. 941 So.2d at 1221-22. The Fifth District resolved the issues by finding that the rule applies under those circumstances and that the motion was timely, explaining that rule 1.525 establishes a deadline “to eliminate the reasonable time rule and establish a time requirement to serve motions for costs and attorney’s fees.” Id. at 1225 (quoting Carter v. Lake County, 840 So.2d 1153, 1156 (Fla. 5th DCA 2008)). Aligning itself with the First, Third and Fourth Districts, the Fifth District opined that the “reasonable time” standard was vague and that the original enactment of the rule in 2001, requiring service of the motion within thirty days after the fifing of the judgment, was intended to and did establish an outside deadline of thirty days after the judgment, beyond which a motion will be untimely. Id. Noting that the rule had been amended effective 2006 to clearly state that the deadline for service of the motion is thirty days after the fifing of the judgment, thereby eliminating all doubt, the Fifth District held that this clear statement was also the intended meaning of the earlier version of rule 1.525. Id. at 1226.

The conflict cases all generally hold that the 2001 enactment of rule 1.525 (which contains the same language as the 2004 version) was intended only to create a final deadline for service of the motion, in order to avoid the tardiness that occurred in fifing a motion under the preexisting “reasonable time” fifing requirement. The conflict courts generally agree that the “reasonable time” requirement created the potential for prejudice to the opposing party, which is not present under the rule because it eliminates tardy motions. Several of the conflict courts also opine that the intent of the 2006 amendment in removing the word “within” from the rule was to effect the original intent of the 2001 amendment — that being elimination of tardy motions. None of the conflict decisions identify any possible prejudice in an early prejudgment fifing, as opposed to a late postjudgment fifing.

INTERPRETATION OF THE RULE

As this Court explained in Saia, appellate courts apply a de novo standard of review when the construction of a procedural rule, such as rule 1.525, is at issue. 930 So.2d at 599. Further, “[i]t is well settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction.” Id. “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)); accord Forsythe v. Longboat Key Beach Erosion Control District, 604 So.2d 452, 454 (Fla.1992). If, however, the language of the rule is ambiguous and capable of different meanings, this Court will apply established principles of statutory construction to resolve the ambiguity. See, e.g., Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006).

The word “within” as used in rule 1.525 appears to be the critical term in interpreting the time deadline in the rule. It is appropriate to refer to dictionary definitions when construing statutes or rules. See Reform Party of Fla. v. Black, 885 So.2d 303, 312 (Fla.2004) (citing Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 204-05 (Fla.2003)). Indeed, this is what the Fourth District did in Swift, when it construed the word “within” to mean “not later than.” The court explained: “ ‘When used relative to time,’ the preposition ‘within’ has been defined as meaning ‘any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than.’ ” Swift, 924 So.2d at 887 (quoting Black’s Law Dictionary 1437 (5th ed.1979)). Merriam-Webster’s Collegiate Dictionary 1359 (10th ed.1999) defines the word “within” as including both “before the end of’ and “being inside.” Accordingly, the definition of the word “within” has not been restricted to only one meaning.

The word “within” has also been variously defined by different courts. See, e.g., Taxpayers Against Congestion v. Regional Transp. Dist., 140 P.3d 343, 347 (Colo.Ct.App.2006) (stating that “ ‘within’ means, in the context of a temporal restriction, ‘not longer in time than ... before the end or since the beginning of ” based on Webster’s Third New International Dictionary 2627 (1986), and concluding that an act to be done “within ten days after” certification of election results must be done during the ten days following the certification of the election); Brown v. Kindred, 259 Neb. 95, 608 N.W.2d 577, 579 (2000) (reaffirming holding that “within” means “inside of’); Glaze v. Grooms, 324 S.C. 249, 478 S.E.2d 841, 844 (1996) (“If an action is required by statute within a certain time ‘after’ an event, the general rule is that the action may be taken before the event, since the statute will be considered as fixing the latest, but not the earliest, time for taking the action.”) (citing 86 C.J.S. Time § 8).

The Supreme Court of Iowa summarized the differing meanings of the word “within” when it explained:

In fixing time, this word is fairly susceptible of different meanings.... It may be taken to fix both the beginning and end of the period of time in which a specified act must be done. In this sense “within” means “during.”
However, “within” frequently means “not beyond, not later than, any time before, before the expiration of.” In this sense “within” fixes the end but not the beginning of the period of time.

Iowa State Dept. of Health v. Hertko, 282 N.W.2d 744, 751 (Iowa 1979) (quoting Jensen v. Nelson, 236 Iowa 569, 19 N.W.2d 596, 598 (1945)).

This Court has also had occasion to construe the word “within,” albeit in a statutory context, stating:

“Within” means “during the time of.” Black’s Law Dictionary 1602 (6th ed.1991). In common usage, “within” simply is not synonymous with “no later than.” The term “within” implies a measurement fixed both at its beginning and its end, whereas “no later than” implies only a fixed end.

Jeffries v. State, 610 So.2d 440, 441 (Fla.1992). However, the Court had earlier construed the word “within” in Chatlos v. Overstreet, 124 So.2d 1 (Fla.1960), differently. There, in construing a statute, the Court said that the word “within” was susceptible of differing meanings — including “not longer in time than” and “not later than” — and concluded that the word “does not fix the first point of time, but the limit beyond which action may not be taken.” Id. at 3. Interestingly, in 1963, the Second District cited Chatlos for this very principle in construing a rule of procedure that authorized the filing of a petition for rehearing “within 10 days after the recording of the decree.” Bradford Builders, Inc. v. Phillips Petroleum Co., 154 So.2d 189, 190 (Fla. 2d DCA 1963). There, the Second District found that the word “within” means “not later than” and that a petition was timely even though filed before the decree was final. Id.

Because the word “within” is clearly susceptible of several different and somewhat contrary meanings, we look to the purpose of the rules of civil procedure as well as the purpose behind the enactment of rule 1.525. See Fla. Birth-Related Neurological Injury Compensation Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997) (“[C]onsideration must be accorded not only to the literal and usual meaning of the words, but also to then-meaning and effect on the objectives and purposes of the statute’s enactment.”). The general guide to construction of the procedural rules is set forth in Florida Rule of Civil Procedure 1.010, which states that the rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.” See also Singletary v. State, 322 So.2d 551, 555 (Fla.1975) (“Procedural rules should be given a construction calculated to further justice, not to frustrate it.”).

Further, regarding the purpose, rule 1.525 was created to replace the “reasonable time” requirement established by prior case law with a “within 30 days after” requirement primarily to accomplish two goals: first, to cure the “evil” of uncertainty created by tardy motions for fees and costs, see Norris, 907 So.2d at 1218; and second, to eliminate the prejudice that tardy motions cause to both the opposing party and the trial court. There is no indication that the purpose behind the rule was to create a narrow window to begin only after the filing of the judgment.

In fact, as the Court explained in Stock-man, “[t]he existence or nonexistence of a motion for attorney’s fees may play an important role in decisions affecting a case. For example, the potential that one may be required to pay an opposing party’s attorney’s fees may often be determinative in a decision on whether to pursue a claim, dismiss it, or settle.” 573 So.2d at 837. This principle is equally applicable to our determination that rule 1.525 should be construed in a manner that does not prevent the service of an early motion for such fees or costs.

Because the word “within” in the 2004 version of the rule is ambiguous and because procedural rules are to be construed to effect a speedy and just determination of the cause on the merits, we construe the word “within” in accord with those courts that have found it to mean “not later than” thirty days after the filing of the judgment, as the current rule now provides. The 2006 amendment to the rule clarifies that the intent of the rule is to establish only an outside deadline for service of the motion, by substituting the words “no later than” for the more ambiguous word “within.” The rule, effective January 1, 2006, now reads: “Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after the filing of the judgment....” See In re Amendments to the Fla. Rules of Civil Pro. (Two Year Cycle), 917 So.2d 176, 177, 186 (Fla.2005).

Therefore, we conclude that the prior version of rule 1.525 in effect in 2004 was not intended to create a limited thirty-day window for service of a motion for attorneys’ fees or costs or both. The rule in effect in 2004, just like the rule amended effective 2006, requires only that the motion be served no later than thirty days following the filing of the judgment.

CONCLUSION

For all the reasons stated, we agree with the conclusions reached by the First, Third, Fourth and Fifth Districts, which hold that rule 1.525 does not mandate service of a motion for attorneys’ fees or costs only within a thirty-day window following the filing of the judgment. We also conclude that the timely service requirement of rule 1.525 in effect in 2004, which established only an outside deadline for service of Barco’s motion for attorneys’ fees and costs, was met when Barco served his first motion for attorney’s fees and costs prior to the filing of the judgment. Accordingly, we quash the decision of the Second District in Barco, disapprove the decision in Swann, and approve the decisions in Norris, Byrne-Henry, Swift, and Martin Day-tona. We remand for proceedings consistent with this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

      . Rule 1.525 has been amended, effective January 1, 2006, to make clear that the motion must now be served no later than thirty days after judgment. Thus, effective 2006, the question of whether a motion for attorneys’ fees or costs served prior to judgment is untimely has been eliminated by the 2006 amendment clarifying that the rule dictates only the latest date for service of the motion and did not intend for there to be only a narrow window of thirty days following the judgment.

      . These fees are not at issue here. Under section 73.091(1), Florida Statutes (2004), the condemning authority was required to pay attorneys’ fees and reasonable costs incurred in the circuit court eminent domain proceedings. Section 73.092(1), Florida Statutes (2004), provides for calculation of statutory attorneys’ fees on the basis of the benefits achieved for the client, except under certain circumstances set forth in the chapter that are not pertinent here.

      . Similar to the change in rule 1.525, the current rule 1.530 providing for motions for new trial, rehearing and amendment of judgments now requires those motions to be served “not later than 10 days” after the verdict or the filing of the judgment in a non-jury action.

      . This decision does not alter the pleading requirements for claims for attorneys’ fees that have been established by prior case law. See Stockman, 573 So.2d at 837. However, it is not sufficient for a party to plead entitlement to fees or costs only in their pretrial pleadings, such as in a complaint or an answer. A timely motion is also required. Further, a court's reservation of jurisdiction to determine fees and costs does not extend the time for service of a motion under rule 1.525. See Saia, 930 So.2d at 600.


source: Caselaw Access Project

author:
PER CURIAM. PARIENTE, J.,
      CANTERO, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Edgar Sylvester WHITBY, Respondent.
    No. SC06-420.
    Supreme Court of Florida.
    Feb. 7, 2008.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Valentina M. Tejera, Assistant Attorneys General, Miami, FL, for Petitioner.
    Bennett H. Brummer, Public Defender, and Shannon Patricia McKenna, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent.
    Rodolfo Sorondo, Jr. of Holland and Knight, LLP, Miami, FL, and Arthur I. Jacobs, Fernandina Beach, FL, on behalf of the Florida Prosecuting Attorneys Association; and Benjamin S. Waxman of Robbins, Tunkey, Ross, et al., Miami, FL, Elliot H. Scherker of Greenberg Traurig, P.A., Miami, FL, Karen M. Gottlieb, Coconut Grove, FL, and Roy D. Wasson of Wasson and Associates, Miami, FL, on behalf of Florida Justice Association, American Civil Liberties Union of Florida, Caribbean Bar Association, Asian Pacific American Bar Association of South Florida, Cuban American Bar Association, Florida Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, Miami Chapter, Florida Association of Women Lawyers, Miami-Dade Chapter, Gwen Cherry/Black Women Lawyers Association, Haitian Lawyers Association, National Association for the Advancement of Colored People, and Wilkie D. Ferguson, Jr., Bar Association, As Amici Curiae.
   PER CURIAM.

We initially accepted review of this case, Whitby v. State, 938 So.2d 557 (Fla. 3d DCA 2006), on the basis of the district court’s certification of a question of great public importance. Art. V, § 3(b)(4), Fla. Const. However, upon reflection and further consideration we have determined to deny review and discharge jurisdiction.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

CANTERO, J., dissents with an opinion, in which WELLS and BELL, JJ., concur.

PARIENTE, J.,

concurring.

I concur in the discharge because the majority of this Court has determined that there is no reason to recede from our precedent of Melbourne v. State, 679 So.2d 759 (Fla.1996). In light of Justice Cantero’s dissent as well as the certified question presented by the Third District opinion in Whitby v. State, 933 So.2d 557, 564 (Fla. 3d DCA 2006), I write to explain why our continued adherence to Melbourne is sound.

Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices. State v. Slappy, 522 So.2d 18, 20-21 (Fla.1988). Indeed, the United States Supreme Court has repeatedly emphasized that it is for the states to formulate appropriate procedures for implementing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. See Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 631, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 99, 106 S.Ct. 1712.

In fact, before the United States Supreme Court’s decision in Batson, this Court in State v. Neil, 457 So.2d 481, 486-87 (Fla.1984), addressed the issue of racial bias in the use of peremptory challenges. We subsequently sought to refine the Neil test in Slappy, ever mindful “that the spirit and intent of Neil was not to obscure the issue in procedural rules governing the shifting burdens of proof, but to provide broad leeway in allowing parties to make a prima facie showing that a ‘likelihood’ of discrimination exists.” Slappy, 522 So.2d at 21-22.

In State v. Johans, 613 So.2d 1319 (Fla.1993), this Court again modified the Neil test due to the difficulty trial courts were having in applying the procedure that case established. In Johans, the Court prospectively held that the only requirement to trigger a mandatory Neil inquiry is a timely objection and statement that the peremptory challenge is being used in a discriminatory manner. Id. at 1322. Johans basically receded from step one as prescribed in Neil, removing the requirement that the objecting party show that there was a strong likelihood the challenge was based on the juror’s race. Id. This Court also held in Johans that “the proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial.” Id.

In Melbourne, the Court noted that the decision in Johans was intended to clarify the procedure to be followed in dealing with peremptory challenges. 679 So.2d at 763. The Court explained that the Johans rule — that a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner — was a “refinement” of the process intended to guide trial courts. Id. at 763 (citing Johans, 613 So.2d at 1321). Recognizing that Florida courts continued to have difficulty in applying Neil, especially after Johans, the Court in Melbourne again clarified and further simplified the process to be followed, focusing on step one:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3).

679 So.2d at 764 (footnotes omitted).

Since Melbourne, we have repeatedly reaffirmed the viability and value of the simplified procedure set forth in that decision. Moreover, in Dorsey v. State, 868 So.2d 1192 (Fla.2003), despite disagreement over steps two and three, the Court expressed no disagreement with the simplified first step. Id. at 1199-1201, 1203-05. As Justice Bell so eloquently stated in arguing that Dorsey departed from Melbourne:

In Melbourne v. State, 679 So.2d 759 (Fla.1996), a unanimous opinion authored by Justice Leander Shaw, a judicious balance was finally reached in the effort to eliminate racial discrimination, yet maintain the full and free use of peremptory challenges. The procedural steps and principles outlined in Melbourne have worked remarkably well.

Id. at 1203 (Bell, J., dissenting) (footnote omitted).

Recently, in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), the United States Supreme Court confronted the issue of peremptory challenges yet again. The Court addressed “whether Batson permits California to require at step one that ‘the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.’ ” Id. at 168, 125 S.Ct. 2410 (quoting People v. Johnson, 30 Cal.4th 1302, 1 Cal.Rptr.3d 1, 71 P.3d 270, 280 (2003)). The Court in Johnson stated:

We did not intend the first step to be so onerous that a defendant would have to persuade the judge — on the basis of all the facts, some of which are impossible for the defendant to know with certainty — that the challenge was more likely than not the product of purposeful discrimination. Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.

545 U.S. at 170, 125 S.Ct. 2410. Additionally, the Court noted that the Batson inquiry was designed to produce actual answers to suspicions that peremptory challenges are racially motivated, stating that “[t]he inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” Id. at 172, 125 S.Ct. 2410. Although Johnson is not directly applicable to Florida law because Florida law requires much less of the objecting party to mandate a Neil inquiry, it demonstrates the confusion that Florida law avoids by requiring race-neutral explanations more often than federal law.

Judge Rothenberg, writing for the majority in Whitby v. State, 933 So.2d 557 (Fla. 3d DCA 2006), posits at least two reasons for modifying Melbourne: (1) concerns about gamesmanship that could occur in objecting to peremptory challenges, and (2) needless reversals that occur for technical reasons.

As to the Third District’s first reason for receding from Melbourne, a concern about “gamesmanship,” I am uncertain that requiring more to be said in the first step will eliminate the perceived potential for abuse. Of course, it would be a definite concern if parties objected to each juror that the other side seeks to strike peremptorily but the remedy is not to recede from Melbourne. We must rely on attorneys’ good faith obligations as officers of the court to refrain from making frivolous, dilatory objections. Moreover, since the second step of Melbourne requires only a race-neutral reason, the inquiry returns in the third phase to the proponent of the strike to prove a discriminatory purpose. It is the third step that is the critical one. And the thrust of our case law is to encourage an inquiry whenever a suspect peremptory challenge is called to a trial court’s attention because the overarching value is to eliminate invidious discrimination in jury selection.

As to the second reason offered by the Third District, that of an alleged increase in unnecessary reversals because of Melbourne, the Public Defender for the Eleventh Circuit, on behalf of Whitby, makes a compelling presentation in the appendix to its brief showing that the number of cases that were reversed based on challenges to peremptory strikes has decreased significantly since Melbourne. Importantly, the Public Defender points out that most of the cases cited by the Third District in its footnote occurred because of errors in the second and third steps. An independent review of the thirty-seven decisions cited in the Whitby footnote, 933 So.2d at 564 n. 1, discloses that the vast majority of these cases (twenty-nine) required reversal due to errors in steps two and three, such as that a race-neutral reason for the strike could not be articulated or that the trial court either did not undertake a genuineness analysis or erred in its finding of genuineness. However, only eight of the cases were reversed for step one errors, making it unlikely that Florida’s adherence to Melbourne’s simplified step one refinement is precipitating many unnecessary reversals. .1 would further note that in Pickett v. State, 922 So.2d 987 (Fla. 3d DCA 2005), another case certified to this Court by the Third District, it would appear that the trial court was simply unaware that a pattern of discrimination was not a “condition precedent” to the trial court requiring the striking party to give a race-neutral explanation. Id. at 993. That principle has been enshrined in Florida law since at least 1988 in Slappy, and reiterated over the years. Moreover, the reversals for errors in steps two and three indicate that adherence to the core requirements of Melbourne continues to be important.

Further, a review of the out-of-state decisions cited in Justice Cantero’s dissent that have adopted the Batson standard indicates that determining whether a party has satisfied the first step of a prima facie showing of discrimination before requiring the opposing party to provide a race-neutral reason has not proven simple or error free. Beyond the question of the standard of review, some of the decisions conflict in their determination of what will suffice for a prima facie showing. Compare Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383, 412 (stating that mere exclusion of members of a particular race by using peremptory strikes does not establish a prima facie case), cert. denied, — U.S. -, 127 S.Ct. 397, 166 L.Ed.2d 282 (2006), with Highler v. State, 854 N.E.2d 823, 827 (Ind.2006) (stating that removal of the only African-American juror does raise an inference that the strike was racially motivated). Thus, even where the Batson step one prima facie showing requirement is imposed, courts are not always consistent in its application.

The United States Court of Appeals for the Third Circuit, in Holloway v. Horn, 355 F.3d 707 (3d Cir.2004), noted that problems arose because of certain state requirements that the objecting party make a complete record of the asserted grounds, such as statistical evidence, to support a finding of a prima facie showing. Id. at 729. The Third Circuit stated that such a requirement “is at odds with Bat-son’s first step because it places a burden upon the defendant to make a record of largely irrelevant information in order to raise an inference that the prosecutor excluded members of the venire on account of race.” Id. This type of problem discussed in Holloway is avoided in Florida by the application of the requirements set forth in Melbourne.

As the amici in this case state, “Melbourne establishes a simple, precise, and easy-to-administer procedure for challenging a litigant’s suspected use of a peremptory challenge to discriminate based on race or other impermissible factors.... The ‘simplified inquiry’ adopted by this Court recognizes that little is required to request, and evaluate, a neutral explanation, but too much is lost if discrimination is permitted to remain undetected.” Brief of Amici Curiae at 2.

There is no perfect solution to the problem of discrimination in jury selection. The values that this Court has sought to protect since Neil have been not only the rights of the defendants or other litigants but those of the excluded group member, and in the end the promotion of the fair and even-handed administration of justice. For all these reasons, I conclude, as does the majority in this case by discharging jurisdiction, that there is no compelling reason presented to recede from Melbourne.

ANSTEAD and QUINCE, JJ., concur.

CANTERO, J.,

dissenting.

I dissent from discharging jurisdiction because the district court of appeal has certified to us an important question, the parties have briefed the issue, and we have heard argument. I would answer the question.

In Whitby v. State, 933 So.2d 557, 564 (Fla. 3d DCA 2006), the Third District Court of Appeal certified the question whether we should replace our procedure for addressing the discriminatory use of peremptory challenges as outlined in Melbourne v. State, 679 So.2d 759 (Fla.1996), with the process established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Court outlined a three-step procedure. As modified throughout the years, the three steps are: (1) the objecting party must offer facts establishing a prima facie case of purposeful discrimination; (2) if the prima facie burden is met, the proponent of the strike must articulate a neutral explanation for the challenge; and (3) the court must determine whether the opponent of the strike has carried the burden to prove discriminatory purpose. Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).

Our own jurisprudence addressing the problem predates Batson. See State v. Neil, 457 So.2d 481, 483 (Fla.1984). Over the years, we have increasingly brought our own procedure in line with Batson— except as to the first step. See Melbourne, 679 So.2d at 763-64. Over a decade ago, we abandoned the requirement that the objecting party state a prima facie case of discrimination. See Melbourne, 679 So.2d at 764 n. 5 (“[State, v.]Johans [, 613 So.2d 1319, 1322 (Fla.1993)] eliminated the requirement that the opponent of the strike make a prima facie showing of racial discrimination”). Instead, the opponent of the strike must timely object by alleging that the strike was for a discriminatory purpose, “show that the venireperson is a member of á distinct racial group,” and ask the court to. inquire of the strike’s proponent the reason for the challenge. Id. at 764. In all other respects, the procedure is the same.

In Whitby, the Third District expressed concerns about the gamesmanship that sometimes occurs in objecting to peremptory challenges, and about the needless reversals that occur for technical reasons, which the court attributed to the fact that we do not require the opponent of the strike, when objecting to a peremptory strike as discriminatory, to articulate specific facts. Whitby, 933 So.2d at 563. The district court therefore certified the following question, among others, as one of great public importance: Should Florida follow federal constitutional law and the standard employed in federal cases which requires the demonstration of a prima facie case of discrimination? 933 So.2d at 564.

As explained above, the Melbourne test conforms to the federal procedure except as to the first step.. Under federal law, that -step “contemplates something more than simply establishing the minority status of the defendant and the exclusion of a single venire member who happens to be of the sáme race.” United States v. Abdush-Shakur, 465 F.3d 458, 470 (10th Cir. 2006), cert. denied, — U.S. -, 127 S.Ct. 1321, 167 L.Ed.2d 130 (2007). That is, the federal standard requires that the party opposing the peremptory strike must object and “show[ ] that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 94, 106 S.Ct. 1712. In Johnson, the Supreme Court explained that although this requirement is not intended to be wholly persuasive of the issue, the objecting party should produce such evidence as to “permit the trial judge to draw an inference that discrimination has occurred.” Johnson, 545 U.S. at 170, 125 S.Ct. 2410.

Under Melbourne, the objecting party has no such burden. A simple objection with .a reference to Melbourne or Batson is enough. As one district judge has noted, the absence of any initial burden has encouraged overzealous attorneys to use a Melbourne objection not as a means to assure nondiscriminatory jury selection but to needlessly disrupt and prolong that process. See Plaza v. State, 699 So.2d 289, 294 (Fla. 3d DCA 1997) (Sorondo, J., specially concurring) (“The practical use of [the Neil/Melbourne objection], however, is rapidly degenerating into a strategic way for attorneys to pollute the trial record with baseless objections, alleging racial, ethnic and gender discrimination, which are completely' unsubstantiated by the record.”). Preventing bias in jury selection is a constitutional imperative, and the procedure for ferreting out unlawful discrimination should not lend itself to such ready abuse.

Forty-six states now apply Batson, requiring the objecting party to establish a prima facie case of discrimination. See Williford v. Emerton, 935 So.2d 1150, 1156 (Ala.2004); Gottschalk v. State, 36 P.3d 49, 53 (Alaska Ct.App.2001); State v. Roque, 213 Ariz. 193, 141 P.3d 368, 378 (2006); Weston v. State, 366 Ark. 265, 234 S.W.3d 848, 852-53 (2006); People v. Bell, 40 Cal.4th 582, 54 Cal.Rptr.3d 453, 151 P.3d 292, 301-02, cert. denied, — U.S. -, 128 S.Ct. 202, 169 L.Ed.2d 38 (2007); Valdez v. People, 966 P.2d 587, 589-91 (Colo.1998); Jones v. State, 938 A.2d 626, 633-34 (Del.2007); Brown v. State, 278 Ga. 724, 609 S.E.2d 312, 318 (2004); State v. Daniels, 109 Hawai'i 1, 122 P.3d 796, 800 (2005); State v. Araiza, 124 Idaho 82, 856 P.2d 872, 877-78 (1993); People v. Rivera, 221 Ill.2d 481, 304 Ill.Dec. 315, 852 N.E.2d 771, 783-84 (2006); Highler v. State, 854 N.E.2d 823, 826-27 (Ind.2006); State v. Griffin, 564 N.W.2d 370, 375 (Iowa 1997); State v. Pham, 281 Kan. 1227, 136 P.3d 919, 928-29 (2006); Gray v. Commonwealth, 203 S.W.3d 679, 690 (Ky.2006); State v. Snyder, 942 So.2d 484, 487-89 (La.2006), cert. granted, — U.S. -, 127 S.Ct. 3004, 168 L.Ed.2d 726 (2007); Whittlesey v. State, 340 Md. 30, 665 A.2d 223, 231-32 (1995); Smart v. Shakespeare, No. CV-95-39, 1997 Me.Super. LEXIS 148, 5-6 (Me.Super.Ct.1997); Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968, 971-73 (2003); People v. Bell, 473 Mich. 275, 702 N.W.2d 128, 132-33 (2005); State v. Pendleton, 725 N.W.2d 717, 723-24 (Minn.2007); Flowers v. State, 947 So.2d 910 (Miss.2007); State v. Barnaby, 333 Mont. 220, 142 P.3d 809, 820 (2006); State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542, 558-59,, cert. denied, — U.S. -, 128 S.Ct. 186, 169 L.Ed.2d 126 (2007); Ford v. State, 122 Nev. 398, 132 P.3d 574, 577 (2006); State v. Taylor, 142 N.H. 6, 694 A.2d 977, 979-80 (1997); State v. Watkins, 114 N.J. 259, 553 A.2d 1344, 1346-47 (1989); State v. Sandoval, 105 N.M. 696, 736 P.2d 501, 503-04 (Ct.App.1987); People v. Wells, 7 N.Y.3d 51, 817 N.Y.S.2d 590, 850 N.E.2d 637, 642 (2006); State v. Au gustine, 359 N.C. 709, 616 S.E.2d 515, 521-22 (2005), cert. denied, — U.S. -, 126 S.Ct. 2980, 165 L.Ed.2d 988 (2006); City of Mandan v. Fern, 501 N.W.2d 739, 748-49 (N.D.1993); State v. Herring, 94 Ohio St.3d 246, 762 N.E.2d 940, 952-53 (2002); Coddington v. State, 142 P.3d 437, 443 (Okla.Crim.App.2006), cert. denied, — U.S. -, 127 S.Ct. 2032, 167 L.Ed.2d 804 (2007); State v. Longo, 341 Or. 580, 148 P.3d 892, 900-02 (2006); Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 909-10 (2004), cert. denied, 547 U.S. 1041, 126 S.Ct. 1617, 164 L.Ed.2d 336 (2006); State v. Holley, 604 A.2d 772, 777-78 (R.I.1992); State v. Martin, 683 N.W.2d 399, 402 (S.D.2004); Zakour v. UT Med. Group, Inc., 215 S.W.3d 763, 767 (Tenn.2007); Goode v. Shoukfeh, 943 S.W.2d 441, 445-46 (Tex.1997); State v. Colwell, 994 P.2d 177, 181-82 (Utah 2000); State v. Donaghy, 171 Vt. 435, 769 A.2d 10, 14-15 (2000); Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383, 407(Va.), cert. denied, — U.S. -, 127 S.Ct. 397, 166 L.Ed.2d 282 (2006); State v. Vreen, 143 Wash.2d 923, 26 P.3d 236, 237 (2001); State ex. rel Ballard v. Painter, 213 W.Va. 290, 582 S.E.2d 737, 742 (2003); State v. Lamon, 262 Wis.2d 747, 664 N.W.2d 607, 614-17 (2003); Mattern v. State, 151 P.3d 1116, 1123 (Wyo.), cert. denied, — U.S. -, 127 S.Ct. 3021, 168 L.Ed.2d 741 (2007).

The district court’s certified question presents the opportunity to consider joining the overwhelming majority of states. Doing so might help to curb the abuses that so concerned Judge Sorondo — and presumably other judges as well. As the law stands, under the first step of Melbourne a party objecting to a peremptory challenge need only state, “Objection. Neil. The juror is white.” Melbourne, 679 So.2d at 764 n. 2. Because, as the district court in this case found, Melbourne applies even to white male jurors, and because every individual necessarily belongs to one distinct racial group or another, theoretically an attorney could object to every single peremptory challenge — whether the juror is white or black, male or female— without ever providing a reason for believing the challenge racially motivated. The other side would then have to justify every peremptory challenge, revealing counsel’s voir dire strategy.

Despite the Court’s best efforts and many decisions over the twenty-three years since Neil, we find ourselves far both from the rule’s original purpose — to prevent racial discrimination in jury selection — and from our reassurance in Neil that there remains an “initial presumption ... that peremptories will be exercised in a nondiscriminatory manner.” 457 So.2d at 486. As long as the objecting attorney’s mere statement of a single, obvious fact (“He’s white.”) is sufficient to raise an inference of discrimination requiring the court’s inquiry, the presumption now appears to go the other way.

For these reasons, I believe we should answer the certified question of whether we should conform our law to the federal standard. I respectfully dissent from discharging jurisdiction.

WELLS and BELL, JJ., concur.

      . The Court in Melbourne receded from Sloppy to the extent that it required a "reasonable” rather than a "genuine” race-neutral basis for a peremptory strike, although reasonableness is one factor that may be considered in assessing genuineness. See Melbourne, 679 So.2d at 764 & n. 9.

      . In my years both as a trial attorney and an appellate judge I have not witnessed an explosion of abuses based on Melbourne and I note that the brief of the Florida Prosecuting Attorneys Association does not cite to a single case or authority for the assertion that there has been a "proliferation of totally frivolous Melbourne objections.”

      . I have expressed this concern in the past:
      The fact that a party has challenged a woman or a man, standing alone, should be insufficient to trigger a Neil inquiry without the prosecution or defense objecting with some basis that the peremptory challenge is being used in a discriminatory manner. Otherwise, an opponent of the strike could always object and require the proponent to explain its use of a peremptory challenge because, with the exclusion of race, gender and ethnicity, all identifiable groups of the population are now protected from intentional invidious discrimination.

        Rivera v. State, 670 So.2d 1163, 1166 (Fla. 4th DCA 1996) (footnote omitted). However, that opinion predated Melbourne, and despite the concerns that Justice Cantero now expresses, which are similar to those I had expressed over a decade ago in Rivera, I believe that Melbourne has provided the best solution to this complex problem of attempting to eliminate invidious discrimination in jury selection.

      . Frazier v. State, 899 So.2d 1169, 1175 (Fla. 4th DCA 2005) (reversing trial judge’s ruling that prosecutor's explanation was race/ethnic-neutral); Despio v. State, 895 So.2d 1124, 1126 (Fla. 3d DCA 2005) (same); Wallace v. State, 889 So.2d 928, 930-31 (Fla. 4th DCA 2004) (reversing because prosecutor's "race neutral explanation ... was not a reasonable explanation in light of the facts” and rejecting State’s argument "that prosecutor's use of a peremptory challenge was not pretextual”); Thomas v. State, 885 So.2d 968 (Fla. 4th DCA 2004) (reversing because State’s race-neutral reason was not genuine); Russell v. State, 879 So.2d 1261, 1262 (Fla. 3d DCA 2004) (reversing because the trial court incorrectly rejected the defense's facially-neutral reason and failed to assess the “genuineness of the proffered reason”); Douglas v. State, 841 So.2d 697, 698 (Fla. 3d DCA 2003) (reversing in part because defense’s reasons for the challenge were race-neutral and legitimate); Daniels v. State, 837 So.2d 1008, 1009 (Fla. 3d DCA 2002) (reversing because the trial court erred in finding the defense's reason, namely, the age of the juror, not facially race-neutral); Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002) (reversing because the trial court erred in failing to determine the "genuineness of the challenges”); Shuler v. State, 816 So.2d 257, 259 (Fla. 2d DCA 2002) (reversing because trial court erred "in accepting as genuine the State’s reasons for striking [the juror]”); Rojas v. State, 790 So.2d 1219, 1221 (Fla. 3d DCA 2001) (reversing because defense’s reason for the strike was gender-neutral); Jones v. State, 787 So.2d 154, 157 (Fla. 4th DCA 2001) (reversing because trial court erred in ruling that defense’s reasons for the strike were not facially gender-neutral and failing to engage in genuineness inquiry); Lewis v. State, 778 So.2d 445, 447 (Fla. 3d DCA 2001) (reversing because the defense's reasons for the strike were "a legitimate use of a peremptory challenge”); Allstate Ins. Co. v. Thornton, 781 So.2d 416, 419 (Fla. 4th DCA 2001) (reversing because trial court erred in evaluating the juror's credibility as opposed to the genuineness of the reason for the strike); Baber v. State, 776 So.2d 309, 310 (Fla. 4th DCA 2000) (concluding that appellate counsel rendered ineffective assistance by failing to raise on appeal that the State’s reasons for striking a juror were, at worst — not facially race-neutral, or at best — a total failure to even provide a race-neutral explanation); Hamdeh v. State, 762 So.2d 1030, 1032 (Fla. 3d DCA 2000) (reversing because the trial court erred in finding the reasons for the strike pretextual); White v. State, 754 So.2d 78, 82 (Fla. 3d DCA 2000) (same); Anderson v. State, 750 So.2d 741, 744 (Fla. 3d DCA 2000) (reversing because trial court erred in finding defense’s reason for the strike not facially race or gender-neutral and failing to analyze the genuineness of the reason); English v. State, 740 So.2d 589, 589 (Fla. 3d DCA 1999) (reversing because defense counsel’s reason was race-neutral and not pretextual); Foster v. State, 732 So.2d 22, 23 (Fla. 4th DCA 1999) (reversing because the trial court erred in "finding that the reason for the strike was genuine”);
        Michetin N. Am., Inc. v. Lovett, 731 So.2d 736, 742-43 (Fla. 4th DCA 1999) (reversing because the trial court erred- in finding the reason for the strike pretextual); Henry v. State, 724 So.2d 657, 658 (Fla. 2d DCA 1999) (reversing because the State failed to offer a race-neutral reason and there was no support in the record supporting a race-neutral reason); Georges v. State, 723 So.2d 399, 400 (Fla. 4th DCA 1999) (reversing because "nothing in the record supports the prosecutor’s stated reasons for excusing the juror”); Greene v. State, 718 So.2d 334, 335 (Fla. 3d DCA 1998) (reversing because defense counsel’s reasons for the strike were facially ethnic-neutral and the trial court erred in failing to conduct a genuineness analysis); Randall v. State, 718 So.2d 230, 232-33 (Fla. 3d DCA 1998) (reversing because the trial court "clearly erred in finding that the state’s proffered reason for striking [the] juror ... was genuine or non-pretextual”); Overstreet v. State, 712 So.2d 1174, 1175 (Fla. 3d DCA 1998) (same); Dean v. State, 703 So.2d 1180, 1182 (Fla. 3d DCA 1997) (reversing because the trial court erred in finding that the defense’s reasons for the strike were not ethnic-neutral and failed to conduct a genuineness inquiry); Daniel v. State, 697 So.2d 959, 961 (Fla. 2d DCA 1997) (reversing because the trial court failed to conduct a genuineness inquiry); Hernandez v. State, 686 So.2d 735, 736 (Fla. 2d DCA 1997) (reversing because the trial court erred in failing to find the defense’s reason facially race-neutral and genuine); Morris v. State, 680 So.2d 1096, 1098 (Fla. 3d DCA 1996) (same).

      . Pickett v. State, 922 So.2d 987, 992 (Fla. 3d DCA 2005) (reversing because trial court failed to conduct a Neil inquiry and require the striking party to offer a race-neutral reason for the strike); Stephens v. State, 884 So.2d 1071, 1072 (Fla. 5th DCA 2004) (same); Alsopp v. State, 855 So.2d 695, 698 (Fla. 3d DCA 2003) (same); Murray v. Haley, 833 So.2d 877, 880 (Fla. 1st DCA 2003) (reversing because trial court failed to conduct a Neil inquiry and require the striking party to offer a gender-neutral reason for the strike); Kiwanis Club of Little Havana, Inc. v. de Kalafe, 723 So.2d 838, 841-42 (Fla. 3d DCA 1998) (finding that trial court failed to conduct a Neil inquiry and require that the striking party offer a race-neutral reason for the strike); Vasquez v. State, 711 So.2d 1305, 1306 (Fla. 2d DCA 1998) (same); Archie v. State, 710 So.2d 234, 234 (Fla. 3d DCA 1998) (finding that the State, as party opposing strike, failed to show challenged person is member of a distinct racial group); Murphy v. State, 708 So.2d 612, 614 (Fla. 1st DCA 1998) (trial court erred in failing to perform Neil inquiry).

      . The Court in Abshire v. State, 642 So.2d 542, 544-45 (Fla. 1994), reiterated that:
      The fact that several women were seated as jurors is of no moment, for as we have previously said "number alone is not dis-positive, nor even the fact that a member of the minority in question has been seated as a juror or alternate.” State v. Slappy, 522 So.2d 18, 21 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); see also Johans, 613 So.2d at 1321 ("A [gender-neutral] justification for a peremptory challenge cannot be inferred merely from circumstances such as the composition of the venire or the jurors ultimately seated.”).

        See also Bowden v. State, 588 So.2d 225, 228 (Fla.1991) (“It is clear that a pattern of striking black venire members need not be demonstrated before a trial court’s duty to conduct an inquiry into the State’s reasons for the excusal of a minority member is triggered.”).

      . There is not agreement among the cited cases as to the standard of review to be applied to a trial court's determination of whether a prima facie showing has been made. Most of the decisions that discuss a standard of review apply a de novo standard. Several of the decisions utilize an abuse of discretion standard, and at least five decisions apply a clear error or clearly erroneous standard of review. At least one of the decisions, People v. Rivera, 221 Ill.2d 481, 304 Ill.Dec. 315, 852 N.E.2d 771, 784 (2006), applies an "against the manifest weight of the evidence” standard to determining if a prima facie showing has been made.

      . The amici include such organizations as the Florida Association for Women Lawyers, the Cuban American Bar Association, the National Association for the Advancement of Colored People (NAACP), the American Civil Liberties Union (ACLU), and the Florida Association of Criminal Defense Lawyers (FACDL).

      . The district court certified other questions that I see no need to address. However, I would point out that the first question— whether in objecting to the strike a party must allege the existence of a discriminatory purpose — is answered "yes” by the plain language of Melbourne. We stated there that a “party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis.” Melbourne, 679 So.2d at 764 (emphasis added). We also provided an example allegation in a footnote: "A simple objection and allegation of racial discrimination is sufficient, e.g., T object. The strike is racially motivated.’ ” Id. at 764 n. 2.

      . Only three states — Connecticut, Missouri, and South Carolina — like Florida, follow Bat-son only with respect to steps two and three. See State v. Rigual, 256 Conn. 1, 771 A.2d 939, 944 & n. 9 (2001); State v. Taylor, 18 S.W.3d 366, 370 (Mo.2000); State v. Adams, 322 S.C. 114, 470 S.E.2d 366, 372 (1996).


author: WELLS, Judge.

text:
    Martha VALDEZ, et al., Appellants, v. HOMEOWNERS ASSISTANCE GROUP, INC., Appellee.
    No. 3D07-818.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Martha Valdez, in proper person.
    Carrillo & Carrillo; Arnaldo Velez, Coral Gables, for appellee.
    Before COPE, GREEN, and WELLS, JJ.
   WELLS, Judge.

Affirmed. See Jones v. Flowers, 547 U.S. 220, 235, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (noting that due process may be met if notice of a tax deed certificate is posted on the front door upon receipt of a certified letter marked as undeliverable); Cusack v. Homeowners Assistance Group, LLC, 961 So.2d 999 (Fla. 3d DCA 2007).


author: PER CURIAM.

text:
    Fred E. GLICKMAN, et al., Appellants, v. Frank BRAGANO, et al., Appellees.
    No. 3D06-3197.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Fred E. Glickman, for appellants.
    R. Patrick Mirk, Tampa, for appellees.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Fred E. Glickman, Fred E. Glickman, P.A., and Marc Treco (“appellants”) appeal an order denying their motion for attorney’s fees and costs. We reverse and remand for further consideration.

Frank Bragano and Andrew Lynch (“ap-pellees”) filed a two-count- complaint against appellants. Count I alleged a claim for civil theft and count II for fraudulent transfer.

On appellants’ motion, the trial court dismissed the civil theft claim with prejudice, and retained jurisdiction to consider attorney’s fees and costs. The trial court dismissed count II without prejudice, allowing appellees to amend the complaint. Ultimately, the trial court dismissed count II with prejudice for lack of prosecution. Thereafter, the trial court denied appellants’ motion for attorney’s fees and costs reasoning that the dismissal for lack of prosecution did not establish appellants’ status as prevailing party.

However, the trial court did not dismiss count I, the civil theft claim, for lack of prosecution. Instead, the court was dismissed this claim with prejudice on appellants’ motion, and the trial court specifically retained jurisdiction to later address the issue of attorney’s fees and costs.

Therefore, because the trial court has not yet determined whether attorney’s fees and costs are appropriate on count I, we reverse and remand for the trial court to consider appellants’ entitlement to attorney’s fees and costs on the civil theft claim.

Reversed and remanded.


text:
    Alfred HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3145.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See In re Amendments to the Fla. Rules of Crim. Pro.—Final Arguments, 957 So.2d 1164 (Fla.2007).


text:
    AGENCY FOR PERSONS WITH DISABILITIES, etc., Appellant, v. James Edward PATTILLO, Appellee.
    No. 3D07-1711.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Bill McCollum, Attorney General, and Scott D. Makar, Craig D. Feiser, and John D.C. Newton, II, Assistants Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Hadi v. Cordero, 955 So.2d 17 (Fla. 3d DCA 2006).


text:
    Donniel SILVERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-68.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Donniel Silvers, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

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

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

Reversed and remanded for further proceedings.


text:
    Terrance Lamont GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-139.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Terrance Lamont Green, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS and SALTER, JJ.
   PER CURIAM.

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

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

Reversed and remanded for further proceedings.


text:
    Melvin COX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-214.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.

      Melvin Cox, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Major v. State, 814 So.2d 424, 431 (Fla.2002) (finding that “neither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future”).


author: SHAHOOD, C.J.

text:
    Carl SHELL, Appellant, v. Tim SCHWARTZ, City of Hollywood, et al., Appellees.
    No. 4D07-1919.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Rehearing Denied March 28, 2008.
    Carl Shell, Hollywood, pro se.
    Jeffrey L. Hochman and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees.
   SHAHOOD, C.J.

We affirm on the authority of Caswell v. City of Detroit Housing Commission, 418 F.3d 615 (6th Cir.2005).

Affirmed.

POLEN and MAY, JJ., concur.


author: LAWSON, J.

text:
    C.B., Mother of J.B., K.B., C.B., and B.B., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D07-2049.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2008.

      Linda G. Sasser, St. Augustine, for Appellant.
    Annette Pitts of Department of Children and Families, Daytona Beach, for Appel-lee.
   LAWSON, J.

In this expedited and consolidated appeal, the mother of J.B., K.B., C.B. and B.B., appeals four post-disposition dependency orders. She argues that the trial court violated her due process rights by reinstating supervision and removing the children from her custody without proper notice, and without initiating a- new deperl-dency proceeding where the children were never adjudicated dependent and the court had already successfully terminated supervision. Although the orders appealed are neither final orders nor appealable non-final orders, we treat this appeal as a petition for writ of certiorari. Finding that the lower court’s reinstatement of supervision and change of custody was not authorized by statute, we also find that the orders constitute a departure from the essential requirements of law, and grant the writ. Given our resolution of the primary issue on appeal, there is no need to address the mother’s lack of notice argument.

Facts and Proceedings Below

In February 2006, the Department of Children and Families, (“DCF” or “the department”), filed a petition to shelter the mother and father’s four children after the mother and youngest child, B.B., tested positive for opiates at B.B.’s birth. The lower court sheltered the children with the parents under DCF supervision. In April 2006, the mother filed a written consent to dependency which stated that she consented “without admitting the allegations in the Dependency Petition, to the Dependency of my child(ren).” Based on the mother’s consent, the lower court set a disposition hearing, while withholding adjudication of dependency.

In June 2006, the court entered a judicial review order, which continued to withhold adjudication, found that the parents had substantially complied with the case plan, and gave DCF “[discretion to terminate supervision ex parte after August 17, 2006.” In February 2007, the court granted DCF’s motion to successfully terminate supervision of the mother’s custody, although the order terminating supervision also purported to retain jurisdiction.

On May 10, 2007, DCF filed an “Emergency Motion to Reinstate Protective Services Supervision and Temporary Change of Placement,” which alleged that the mother had been arrested and incarcerated for.drug possession and had been evicted from her apartment. Despite repeated objections from the mother’s counsel, the trial court proceeded by reinstating supervision in the old case, without requiring the filing of a new dependency petition, and without following any of the procedural requirements for a new dependency action. Specifically, in an order dated May 10 and amended May 15, the trial court “reinstated” protective supervision, removed the children from the mother’s custody, and ordered that the mother comply with the previous case plan. Subsequently, on June 7, the trial court entered an order denying the mother’s request for an adjudicatory hearing. Finally, the court denied the mother’s motion for rehearing. The mother timely appealed each of these orders.

Jurisdiction and Standard of Review

Although these proceedings were filed as direct appeals pursuant to Florida Rule of Appellate Procedure 9.146, it does not appear that this court has appellate jurisdiction. None of the orders being appealed are final orders nor are they appealable non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3). In D.K.B. v. Department of Children & Family, 890 So.2d 1288 (Fla. 2d DCA 2005), the Second District held that rule 9.146 does not expand the types of non-final orders which may be appealed beyond those listed in rule 9.130. The supreme court expressly approved D.KB.’s holding in In re Amendments to The Florida Rules of Appellate Procedure (Out of Cycle), 941 So.2d 352, 357 (Fla.2006). See also, Dep’t of Health & Rehab. Servs. v. Honeycutt, 609 So.2d 596 (Fla.1992) (holding that review of non-final orders determining child custody in child dependency proceedings is not encompassed by rule 9.130(a)(3)(C)(iii), which permits review of non-final orders determining child custody in domestic relations cases). Accordingly, we treat this appeal as a petition for writ of certiorari pursuant to rule 9.040(c). See A.P. and V.H. v. Dep’t of Children and Families, 957 So.2d 686 (Fla. 5th DCA 2007). This court’s standard of review is whether the trial court’s orders depart from the essential requirements of law. Id. at 688.

Analysis

The mother argues that because the children were never adjudicated dependent, the lower court was not allowed to exercise jurisdiction over her children after termination of supervision without following the statutory requirements governing new dependency actions. We agree.

We start by noting that, section 39.507, Florida Statutes, does not give the court “full authority” over a child that is not adjudicated dependent. See § 39.507(5) & (6), Fla. Stat. (2006). In addition, although section 39.521(b)3 provides that the court’s “termination of supervision may be with or without retaining jurisdiction,” this provision, by the statute’s express terms, only applies to children “adjudicated by a court to be dependent.” See § 39.521(b), Fla. Stat. (2006).

The court’s treatment of children who are not adjudicated dependent is governed by section 39.507(5), Florida Statutes. That statute allows the court to withhold adjudication of dependency, leave the children in their home, and order in-home supervision by the department. This was the action originally taken in this case. However, section 39.507(5) only authorizes an extended exercise of jurisdiction if “the court later finds that the parents of the child have not complied with the conditions of supervision imposed”, in which case the court can then “enter an order of adjudication” and “thereafter have full authority under this chapter to provide for the child as adjudicated.” Id. Clearly, the court cannot proceed further under section 39.507(5) after it enters an order successfully terminating supervision because the section only contemplates further action based upon a violation of “the conditions of supervision.” At the time the trial court took the actions challenged here, the mother was no longer subject to any conditions of supervision, and therefore could not be subjected to further jurisdiction for an alleged failure to comply with conditions of supervision.

Finally, DCF argues that the trial court was authorized to order the children removed from the mother’s custody, without initiating a new dependency action, based upon section 39.522, Florida Statutes, which allows the court to “change the temporary legal custody or the conditions of protective supervision at a post-disposition hearing, without the necessity of another adjudicatory hearing.” Again, the express language of the statute contradicts DCF’s position. This statute only authorizes a change in temporary custody “without the necessity of another adjudicatory hearing.” In this case, the mother was granted permanent custody of her children when DCF’s protective supervision was terminated in February 2007.. For these reasons, we agree with the mother that the trial court violated the essential requirements of the law when it attempted to exercise full jurisdiction without the initiation of a new dependency action. Therefore, we quash the orders on review.

WRIT GRANTED; ■ ORDERS QUASHED.

PALMER, C.J., and PLEUS, J., concur.


text:
    Lachelle PARSONS, Appellant, v. Charles BRAKE and the State of Florida, Department of Revenue, Appellees.
    No. 1D07-2127.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      Lachelle Parsons, pro se, Appellant.
    Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Lachelle Parsons, Appellant, appeals the trial court’s order requiring her to pay $330.00 per month ongoing child support and $17.00 per month toward retroactive support based on an imputed net income of $999.17 per month. She essentially argues that the trial court’s order was not supported by the evidence. We agree, and accordingly, reverse and remand for further proceedings consistent with this opinion.

On January 16, 2006, Florida Department of Revenue and Charles Brake filed a petition to establish child support from Appellant. A final child support hearing was conducted on March 22, 2007. At the hearing, Appellant testified that she is one hundred percent disabled even though her disability application had been denied once. She further testified that she does not work, and she lives with, and is supported by, her mother and father. Appellant testified that she does not have a doctor’s note indicating her present inability to work. She testified that she had worked as a waitress in the past but she currently cannot stand on her feet for long periods of time.

In the child support guidelines worksheet, Brake’s counsel imputed $999.17 monthly net income to Appellant, allegedly based on the minimum wage. The trial court ordered Appellant to pay $333.00 per month in ongoing child support beginning April 22, 2007, and $17.00 per month towards retroactive support of $4,848.00. These figures conformed with Brake’s counsel’s calculations. The trial court did not make any findings regarding Appellant’s ability to work or earning capacity. This appeal followed.

Section 61.30(2)(b), Florida Statutes (2005), provides,

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community. ...

“A court may impute income to a party who has no income ... based upon a showing that the party has the capability to earn more by the use of his best efforts.” Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991). When a trial court imputes income to an individual, it “must be supported by appropriate findings.” Wollschlager v. Veal, 601 So.2d 274, 277 (Fla. 1st DCA 1992) (disapproved of on other grounds). If a trial court fails to make the requisite findings, “the record must reveal competent substantial evidence supporting the trial court’s decision.” Burkley v. Burkley, 911 So.2d 262, 268 (Fla. 5th DCA 2005). In Burkley v. Burkley, the court noted that “mere allegations of employability do not constitute competent substantial evidence for imputing income.” Id. at 269. The Burkley court also held that the former husband’s partial disability should have been taken into account when determining his ability to work when imputing income to him for child support purposes. Id. at 269.

Here, the trial court failed to make sufficient findings to support the imputation of income to Appellant. The trial court merely inquired as to Appellant’s former occupation. The trial court did not address Appellant’s occupational qualifications, the prevailing earnings in the community, or her physical ability to work. Although Appellant has not been awarded disability benefits, there is evidence in the record that she has a serious medical condition and cannot work. Brake presented no evidence of how many hours a week Appellant could work or of the wages she could earn. The record is void of competent substantial evidence supporting the imputation of income to Appellant. Therefore, we REVERSE and REMAND for further proceedings consistent with this opinion.

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

      . Pro se pleadings are liberally construed by courts. Stokes v. Fla. Dep't of Corr., 948 So.2d 75, 77 (Fla. 1st DCA 2007).

      . The record includes a July 26, 2001, letter from Dr. Zawahry, stating that Appellant suffers from Hepatitis C, which causes her progressive weakness and has left her permanently and totally disabled.


author: BROWNING, C.J.

text:
    Christopher Lee COX, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2074.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, C. Bowen Robinson and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Appellee.
   BROWNING, C.J.

Christopher Lee Cox (Appellant) appeals a final order imposing probation after entry of a plea reserving his right to challenge the denial of his dispositive motion to suppress evidence. Because the trial court correctly concluded that the officer had a well-founded suspicion to stop and detain Appellant and his passenger, we affirm.

An amended information charged Appellant with possession of a controlled substance (cocaine), possession of drug paraphernalia, and driving while the license is cancelled, suspended, or revoked. The charged offenses occurred on September 9, 2006. Appellant moved to suppress the evidence obtained as a result of an allegedly illegal traffic stop and detention. At the suppression hearing, defense counsel’s sole argument was that the officer who stopped Appellant lacked a reasonable, articulable suspicion of criminal activity connected to Appellant. To support the motion, counsel cited Zelinski v. State, 695 So.2d 834 (Fla. 2d DCA 1997) (concluding that an investigatory stop was unlawful because the officer who responded to a report of a “suspicious person” who had left a convenience store lacked a well-founded suspicion that defendant or other occupants of the vehicle parked on the back of the property with its lights off were involved in criminal activity). After the motion was denied, Appellant pled no contest to the charges while reserving the right to appeal the denial of his motion to suppress, which was deemed dispositive. He was placed on one year of probation.

Although the trial court’s “determination of historical facts” is presumed correct, we must “independently review mixed questions of law and fact that ultimately determine constitutional issues” arising from the Fourth Amendment. Connor v. State, 808 So.2d 598, 608 (Fla.2001); see Ornelas v. United States, 517 U.S. 690, 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review de novo the legal conclusions drawn from the facts. See Connor, 803 So.2d at 606; Sizemore v. State, 939 So.2d 209, 211 (Fla. 1st DCA 2006). We are constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment, as interpreted by the United States Supreme Court. See Art. I § 12, Fla. Const.; Perez v. State, 620 So.2d 1256, 1258 (Fla.1993). Evaluating the legality of an officer’s actions involves an objective examination of the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Judgments are presumed correct, and Appellant carries the burden to demonstrate that prejudicial error occurred and that the error was preserved in the trial court. See § 924.051(7), Fla. Stat. (2006); Goodwin v. State, 751 So.2d 537, 544 (Fla.1999); Woods v. State, 905 So.2d 246, 247 (Fla. 4th DCA 2005). Our review of the record demonstrates that the trial court’s factual findings are supported by competent substantial evidence and that the law was correctly applied to the facts.

First, we address the traffic stop and detention. Section 901.151(2), Florida Statutes (2006), states:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

This is a codification of the principle that all warrantless seizures of a person must be founded on at least a reasonable suspicion that the individual seized is engaged in wrongdoing. See United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (noting that the Fourth Amendment requires all searches and seizures to have “an objective justification”); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Golphin v. State, 945 So.2d 1174, 1180 (Fla.2006). An officer’s stopping a person’s motor vehicle constitutes a seizure and detention under the Fourth Amendment. See McNichols v. State, 899 So.2d 1197, 1199 (Fla. 5th DCA 2005).

At the suppression hearing, patrol officer James Arnette, a 20-year veteran with the Florida Game and Freshwater Fish Commission, testified that he was working alone in a rural, sparsely populated area in Okaloosa County. Officer Ar-nette is a trained, experienced gunman who usually, depending on the distance, can distinguish among the sounds made by a rifle, a shotgun, a pistol, and a vehicle backfiring. Hearing what he thought was the cracking noise of a rifle shot coming from the southeast, probably a mile or 3/4 mile away, the officer drove along a dirt-covered public thoroughfare in the direction toward which he had “coursed” the shot. He was aware of complaints about illegal night hunting for deer in that area. He observed only one set of fresh vehicular tracks on the dew-covered road and knew that the road, about 1-1/4 mile long, led to a dead-end at a large field commonly known as a “raised bird field” populated by a lot of deer.

After driving about 1/4 mile along that road, Officer Arnette encountered only one vehicle, a four-wheel-drive truck proceeding at “a pretty good clip” for dirt-road driving. The officer did not think there was any other entrance to that road. Observing only one vehicle coming from the direction of the rifle shot, Officer Arnette engaged his blue light and moved to stop the truck, which veered to the right on the fairly narrow road as if trying to keep going. Officer Arnette testified that the location of the truck was expected if the shooter had left the suspected shooting area after the shot was fired.

The articulable, reasonable suspicion necessary to justify a lawful investigatory stop or detention is “not readily, or even usefully, reduced to a neat set of legal rules,” and the courts must consider the totality of the circumstances. Gates, 462 U.S. at 232, 103 S.Ct. 2317; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). This “founded suspicion” in the officer’s mind “is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). This is more than a “mere” or “bare” suspicion but need not rise to the level of probable cause. See Hunter v. State, 660 So.2d 244, 249 (Fla.1995); Brandin v. State, 669 So.2d 280, 282 (Fla. 1st DCA 1996).

Among the pertinent factors in determining whether Officer Arnette had a founded suspicion that Appellant and/or his passenger were involved in criminal activity are the time of day, the location, the timing of the events, the route of the flight, and “anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” Stevens, 354 So.2d at 1247; see Hunter, 660 So.2d at 249. Officer Arnette was patrolling late at night in a desolate, rural area when he heard what (from his experience) sounded like rifle shots. Concerned about reports of illegal night hunting in the area, he drove in the direction of the suspected shot, saw fresh tracks on the road, and stopped the only vehicle coming from the direction of the dead-end dirt road. The timing was such that the shooter very likely would have been in that location if he or she had left the site of the shot. Because Officer Arnette had a founded, reasonable suspicion that occupants of the truck were connected to the shot fired, he was justified in stopping the truck. See Johnson v. State, 696 So.2d 1271 (Fla. 5th DCA 1997) (concluding that officer had reasonable suspicion to suspect that pedestrians defendant and his companion, the only persons observed in the area, had been engaged in the illegal activity of firing a shot at an urban intersection at 1:30 a.m., so as to justify stopping them, where the officer responded 3-5 minutes after the call and observed the suspects four blocks from the reported site of the shot, and the suspects denied hearing a shot); State v. Hall, 652 So.2d 484 (Fla. 5th DCA 1995) (holding that the stop was justified and the trial court erred in granting a motion to suppress, where two gunshots were heard in town at 1:00 a.m. on an unusually quiet night and the officer, located no more than one block away from the shots, stopped bicyclists defendant and his companion, the first people the officer had seen on the streets for at least an hour and a half); State v. Brooks, 281 So.2d 55, (Fla. 2d DCA 1973).

Next, we consider Appellant’s challenge to the search of Appellant’s truck and the scope of the search. Generally, a law enforcement officer may validly seek consent to search a vehicle during a legal traffic stop. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The officer need not have an objective justification or reasonable suspicion to ask for consent to search. See Watts v. State, 788 So.2d 1040, 1042-43 (Fla. 2d DCA 2001). To validate a warrantless search, the State must show that the search falls within a constitutional exception, one of which is voluntary consent. See Hicks v. State, 852 So.2d 954, 960 (Fla. 5th DCA 2003). Consent must be given unequivocally and not be mere deference to the apparent authority of the police. See Thompson v. State, 555 So.2d 970, 971 (Fla. 2d DCA 1990). A search conducted pursuant to freely and voluntarily given consent is lawful. See Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998). Whether consent is voluntary is a question of fact to be determined under the totality of the circumstances and established by a preponderance of the evidence. See id.; Oliver v. State, 642 So.2d 840, 841 (Fla. 4th DCA 1994). To conclude that a search is involuntary, the court must find that the defendant’s “will [was] overborne and his capacity for self-determination critically impaired.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041; Wilson v. State, 952 So.2d 564, 569 (Fla. 5th DCA 2007). Among the factors to be considered in determining whether consent to search is voluntary are the time and location of the encounter, the number of officers present, and the officer’s words and actions. See Kutzorik v. State, 891 So.2d 645, 647 (Fla. 2d DCA 2005).

Officer Arnette testified that when he exited his vehicle and approached Appellant’s truck, he was looking for a “long gun” or rifle of the type that would have produced the sound he had heard. As he walked toward the truck, the officer saw the passenger bend over and lower his hands. The passenger had a panicked look on his face. Concerned about the possible presence of a firearm, the officer backed off for safety reasons and yelled for both men to show their hands. Officer Arnette thought that he had drawn his weapon when he saw the passenger furtively placing his hands down by the side of his leg. Officer Arnette had his gun ready as he moved away from Appellant’s truck, but he never pointed it forward. He did not think he ever removed the gun completely from its unsnapped holster. Appellant immediately complied with the officer’s instructions, but the passenger had to be reminded to show his hands. After the two men complied, the officer put away his weapon.

Officer Arnette recognized Appellant and asked whether the men had any weapons on them. They answered “No.” When Appellant was asked what he was doing, Appellant stated they were going to the river. When the officer pointed out that the river is in the opposite direction, Appellant smiled and said “Well, we’re just riding around.” When he was asked again if they had any guns, Appellant replied: “Nope, we don’t have any guns. You’re welcome to look.” Appellant stepped out of the truck. Officer Arnette asked: “Do you mind if I look in your truck for guns?” Appellant answered “Nope, go right ahead. Don’t have any.” Officer Arnette never demanded to search the truck; he wanted Appellant’s permission, and he wanted him to know what the officer was looking for.

He lifted the back of the driver’s seat and saw no firearm or deer, but he observed a small package containing what looked like a “rock” of crack cocaine and a bent beer can of the type used to “do” or smoke crack cocaine. Because he did not yet have a back-up patrol, the officer did not disclose his discovery yet. Instead, he asked the two men to step to the front of the truck to secure them as he called for back-up assistance.

Except in instances of fundamental error, to properly preserve an issue, legal argument, or objection to evidence, the complainant must timely raise the matter and get a ruling by the trial court, assuring that the issue, legal argument, or objection is sufficiently precise to inform the court of the relief sought and the grounds for relief. See § 924.051(1)(b) & (3), Fla. Stat. (2006); Reynolds v. State, 934 So.2d 1128, 1140 (Fla.2006); Harrell v. State, 894 So.2d 935, 939-40 (Fla.2005). In the written motion to suppress and in oral argument at the suppression hearing, defense counsel presented one ground for relief: that the officer’s stopping Appellant’s vehicle and detaining the occupants was illegal because the officer lacked a founded suspicion of criminal activity connected with the occupants.

For the first time on appeal, Appellant argues that even if Officer Arnette had a reasonable suspicion to stop Appellant’s truck and detain the occupants, Appellant’s consent was invalid because he merely acquiesced to the officer’s show of authority, and the search of the interior of the vehicle is illegal because it exceeded the scope of the consent. Assuming arguendo that this specific argument had been raised, ruled on, and thereby preserved in the trial court, the State correctly notes that Officer Arnette’s statements and actions were justified in light of his observations, that Appellant freely and voluntarily consented to a search of the truck, and that the scope of the officer’s search was objectively reasonable: ie., what a reasonable person, under the circumstances (including the purported purpose of the search) would understand was the scope of consent based on the interaction between the officer and the suspect. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); Miami-Dade Police Dep’t v. Martinez, 838 So.2d 672, 675 (Fla. 3d DCA 2003); Oliver, 642 So.2d at 841.

The trial court correctly denied the motion to suppress. The judgment and sentence are AFFIRMED.

BARFIELD and DAVIS, JJ., concur.