author: ROTHENBERG, Judge.

text:
    Ralph Alonza EVERETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1666.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Ralph Alonza Everett, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before COPE, C.J., and CORTINAS and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Ralph Alonza Everett appeals the denial of a petition for writ of habeas corpus which is premised upon the claim that the trial court erred in accepting his plea without establishing a factual basis to support his conviction for robbery. We conclude that since the defendant’s claim involves a challenge to his plea, the proper vehicle is a motion for postconviction relief, not habeas corpus. We, therefore, treat the instant petition as a timely-filed motion for postconviction relief, and affirm on the basis that the ground raised is proeedurally barred and without merit.

On November 19, 2002, the defendant entered a plea of guilty to strong-arm robbery in exchange for a sentence of fifteen years incarceration as a prison releasee reoffender, which the trial court agreed to run concurrent with any sentence imposed by the department of corrections for a violation of his parole in case number 89-8980(A).

On December 12, 2002, the defendant filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(1), which was denied by the trial court following an evidentiary hearing. The defendant filed a direct appeal and on December 8, 2004, we affirmed the trial court’s denial of the defendant’s motion to withdraw his plea. Everett v. State, 888 So.2d 167 (Fla. 3d DCA 2004).

On March 14, 2005, the defendant filed a petition for writ of habeas corpus with the Florida Supreme Court, claiming that the trial court and this court erred in denying his motion to withdraw his plea. The Florida Supreme Court dismissed the defendant’s petition for lack of jurisdiction on March 22, 2005.

On May 19, 2005, the defendant filed the instant petition for writ of habeas corpus in the trial court, which the trial court denied on June 2, 2005, to which the defendant now appeals.

The only ground raised in the defendant’s brief in the instant appeal is that the trial court erred in accepting his plea without establishing that there was a factual basis to support it. As previously noted, the defendant filed a motion to withdraw his plea, which was denied by the trial court and affirmed by this court on direct appeal. A defendant seeking postconviction relief is proeedurally barred from raising claims that he could have raised and should have raised on direct appeal. MacArthur v. Moore, 756 So.2d 232 (Fla. 3d DCA 2000); see also Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995)(postconviction proceedings are not to be used as a second appeal). As the defendant could have raised the grounds now raised when he filed, litigated, and appealed his motion to withdraw his plea in 2002, we conclude that the issue is procedurally barred.

We also deny the motion on the merits. A review of the plea colloquy by the trial court reflects that the defendant’s claim that the trial court erred by failing to establish that there existed a factual basis for the defendant’s plea, is without merit. The transcript reflects that prior to accepting the defendant’s guilty plea, the defendant was provided with a Written Plea and Rights Waiver Form, which he acknowledged under oath that he had read and signed voluntarily and that he understood and agreed with all of the terms and conditions. After again explaining the charges and plea to the defendant, the trial court specifically asked the defendant if he was entering his plea of guilty freely and voluntarily and because he was guilty of the charges, and the defendant answered “Yes.” Before accepting the plea, the trial court asked for and received a recitation of the facts by the State, which was, that had the State proceeded to trial, it would have proven that

the defendant unlawfully, willfully, with force, violence or fear, took property from ... [the victim] who worked at the food spot located at 10801 Northeast 13th Avenue, which is in Miami Dade County. The defendant having the intention to deprive the person of his property.

Additionally, the defendant’s trial attorney stipulated that there was a factual basis for the plea, and the trial court specifically found that there was a factual basis to support the plea.

As the defendant’s motion is both procedurally barred and without merit, we affirm the trial court’s denial of his motion.

Affirmed.

      . The trial court specifically noted that it had reviewed the court file and depositions of the lead officer and the victim, and the plea transcript additionally reflects that the trial court heard a motion to suppress on that very morning, at which the defendant testified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Miguel E. RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-549.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Miguel E. Rivera, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Rodriguez v. State, 766 So.2d 1147, 1148 (Fla. 3d DCA 2000).


author: SHAHOOD, J.

text:
    A.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3110.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

A.W., a child, appeals the Disposition Order finding him guilty of resisting an officer without violence and withholding adjudication of dependency. Appellant urges that the trial court erred in not granting his motion for dismissal because the arresting officer was not in the execution of a legal duty to warrant a charge of resisting without violence. We agree and reverse and remand with directions to the trial court to grant appellant’s motion for dismissal based on the following.

A.W. and a friend were found by a school resource officer in a car in the high school parking lot, skipping school. They exited the car at the officer’s request; the officer searched the car and the boys and found no contraband. He then asked A.W. to hand over the keys to the car, but A.W. refused. When the officer attempted to get the keys from A.W.’s pocket, A.W. pulled away, reached into his pocket, retrieved the keys, and threw them on the ground. At that point, the officer arrested him for resisting an officer without violence.

At the hearing, the arresting officer explained that he is a deputy sheriff with the Martin County Sheriffs Department, who is assigned to South Fork High School as a school resource officer. He had the authority to search the car and the boys because they were “out of bounds” and had been previously directed not to be where they were. He admitted that the boys were not under arrest for anything at the point that he asked A.W. to hand over the keys. The officer asked for the keys only because he knew that the car did not belong to A.W. and he planned to find the owner and ask whether A.W. had permission to be in the car. He admitted that what A.W. was resisting was not arrest, but a “lawful order.”

The officer testified that, in approaching the boys and getting them out of the car, he was enforcing school rules. He asked for the keys only because he knew the car did not belong to A.W., but had no knowledge whether A.W. had permission from the owner to be in the car. Taking the keys was not done in furtherance of his duty to enforce the school rules.

As a preliminary matter, A.W. asks this court to consider his motion for judgment of acquittal to be a motion for dismissal, which is provided for by Florida Rule of Juvenile Procedure 8.110. See generally R.M. v. State, 763 So.2d 1060 (Fla. 4th DCA 1999) (holding that a dismissal pursuant to rule 8.110 is equivalent to a motion for judgment of acquittal and may be made at the close of the state’s case); see also J.J.W. v. State, 892 So.2d 1189 (Fla. 5th DCA 2005).

A.W. concedes that the officer needed only a reasonable suspicion to search the boys and the vehicle, see R.C. v. State, 852 So.2d 311 (Fla. 4th DCA), rev. denied, 861 So.2d 430 (Fla.2003), and that the initial search of the boys was reasonable. He argues, however, that the officer’s attempt to seize the car keys was not reasonably related to the scope of the search or the officer’s duty to enforce school rules and bring A.W. in from “out of bounds.”

In New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the United States Supreme Court held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to searches conducted by public school officials. The child’s right to privacy at school must be balanced with the interests of teachers and administrators in maintaining discipline and order in the classroom and on school property. Id. at 339, 105 S.Ct. 733. Because the warrant requirement can be burdensome and thwart the school’s objective, the supreme court held that warrants are not required to search a student under the school’s authority. Id. at 340, 105 S.Ct. 733. Likewise, the court held that, in striking the delicate balance, the level of suspicion required for a warrantless search must be relaxed. Id. at 325, 105 S.Ct. 733. The purpose of the reasonableness standard is to “ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.” Id. at 343, 105 S.Ct. 733.

Following the rationale in T.L.O., but distinguishing that case from the instant case, leads to the conclusion that the search or demand by the officer that A.W. turn over the keys was unreasonable.

In this case the officer approached A.W. and his friend because they were violating a school rule by being somewhere they were not supposed to be. Although a search of the boys and the car where they were hiding was reasonable because there might be a suspicion of finding cigarettes or other contraband, the command to turn over the keys to the car was unreasonable and not related to the original infraction. The officer testified that he demanded the keys only because he knew the car did not belong to A.W. He had no independent verification that A.W. did not have permission to be in the car or have the keys. Defense counsel was correct that the demand was not related to the infraction, i.e., being out of bounds, and infringed on A.W.’s privacy rights. As counsel argued to the trial court, because the keys were unrelated to the initial stop and were not contraband, the officer might just as well have been asking for the shirt off of A.W.’s back.

In order to convict a person for resisting an officer without violence, it must first be shown that “the officer was engaged in the lawful execution of a legal duty; and the action by the defendant constituted obstruction or resistance of the lawful duty.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). As discussed above, the officer in this case had no legal authority to demand that A.W. hand over the car keys; he was not engaged in the lawful execution of a legal duty. Thus, A.W. was not required to comply with the demand and his conviction for resisting an officer without violence must be reversed and appellant’s motion for dismissal be granted.

Reversed and Remanded with Directions.

KLEIN and TAYLOR, JJ., concur.


author: MAY, J.

text:
    Thomas A. CLARE, Petitioner, v. COLEMAN (PARENT) HOLDINGS, INC., and Morgan Stanley & Company, Inc., Respondents.
    No. 4D05-1575.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Marie A. Borland and Benjamin H. Hill, III, of Hill, Ward & Henderson, P.A., Tampa, and John A. DeVault, III, of Be-dell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville, for petitioner.
    Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Jerold S. Solovy, Ronald L. Marmer, Paul M. Smith and Jeffrey T. Shaw of Jenner & Block, LLP, Chicago, IL, for respondent Coleman (Parent) Holdings, Inc.
   MAY, J.

An out-of-state attorney filed a petition for writ of certiorari asking this court to review an order revoking his pro hac vice admission status. He argues the trial court departed from the essential requirements of the law in revoking his status without notice and an opportunity to be heard. He argues he has suffered irreparable injury and has no adequate remedy at law. We agree and grant the petition.

The petitioner is a partner in the law firm of Kirkland & Ellis, LLP, and is admitted to practice in other jurisdictions, but is not a member of the Florida Bar. The trial court admitted him to appear pro hac vice on behalf of Morgan Stanley & Company in a suit brought by Coleman Holdings, Inc. In that capacity, the petitioner served as the primary intermediary between Morgan Stanley and Coleman on discovery matters.

During the litigation, a discovery dispute arose from Coleman’s request for production of all documents, including electronic items, connected with Morgan Stanley’s work for Sunbeam Corporation, which served as the basis for the underlying lawsuit. After Coleman had filed a second motion to compel, but before the hearing on the motion, Morgan Stanley and Coleman reached an agreement that was reduced to an agreed order. The agreed order required Morgan Stanley to conduct electronic searches of back-up tapes for employees who had worked on the Sunbeam transaction, to produce all non-privileged e-mails by a certain date, to provide a privilege log for those redacted documents not produced, and to provide a certificate of compliance with the agreed order by a certain date. Morgan Stanley provided approximately 1300 pages of emails and a certificate of compliance.

Nearly five months later, the petitioner advised Coleman of additional back-up tapes that had been located. He represented that the tapes had not been properly stored, were not clearly labeled, were differing in format, and that additional time was needed to fully comply with the agreed order. Coleman then filed motions seeking an adverse inference instruction due to the destruction of e-mails and noncompliance with the agreed order. These motions did not claim misconduct on the part of the petitioner or his law firm and did not seek revocation of petitioner’s pro hac vice status.

The trial court conducted an evidentiary hearing on the motions. The petitioner testified that he first became aware of the additional tapes just prior to his notification to Coleman of their existence. The petitioner denied knowledge of the falsity of the certificate of compliance when it was filed despite vigorous cross-examination on that issue. At the end of the hearing, counsel for Coleman suggested the court consider the sanction of revoking the pro hac vice status of Morgan Stanley’s out-of-state lawyers. When the court entered an Amended Order on Coleman’s motion for an adverse inference instruction, it noted Morgan Stanley and its counsel’s failure to give Coleman and the court any indication that the certificate of compliance had been false. However, the order did not indicate the court’s inclination to revoke the pro hac vice status of the out-of-state lawyers.

Coleman then filed a motion for entry of default judgment based upon a “pattern of abusive conduct aimed at obstructing justice.” In the motion, Coleman accused Morgan Stanley of attempting to cover up an SEC investigation into e-mail policy violations, refusing to comply with the court order to produce documents, and other intentional misconduct. The motion mentioned the petitioner only as one of several persons heavily involved in the email production. At the hearing on the motion, the court requested a “list of all the pro hoc [sic] vice admission on behalf of Morgan Stanley.” The petitioner was not present at this hearing.

The court then issued an order granting the entry of default judgment against Morgan Stanley. In a one line paragraph of an eighteen-page order, the court revoked the petitioner’s pro hac vice admission without further explanation. On the same day the court entered the order, the court also heard Kirkland and Ellis’s motion to withdraw. During that hearing, the court commented that there was “nothing in this record that indicates that any misconduct on the part of Kirkland and Ellis was anything other than as a consequence of their serving as messengers.... ”

The petitioner argues his due process rights were violated when the trial court revoked his pro hac vice status without notice and an opportunity to be heard. He also suggests that remand for proper notice and a hearing is unnecessary because a final judgment in the amount of $1.45 billion has since been entered against Morgan Stanley and his law firm has withdrawn as counsel of record. He seeks merely to remove any stigma associated with the revocation of his pro hac vice status.

Certiorari is the proper remedy for reviewing orders revoking an attorney’s pro hac vice status. See Ford Motor Co. v. Smith, 821 So.2d 1084 (Fla. 3d DCA 2000). For the writ to issue, the petitioner must demonstrate that the trial court departed “from the essential requirements of law causing material harm for which there is no adequate remedy on final appeal.” Katz v. N.M.E. Hosps., Inc., 842 So.2d 853, 854 (Fla. 4th DCA 2002).

Taking the prerequisites for the issuance of the writ in reverse order, the petitioner clearly satisfies the inadequate remedy at law. Neither he nor his law firm is currently involved in the litigation and he is not otherwise a party. This leaves him with no remedy on the final appeal of the underlying litigation. The more difficult issue is whether the trial court deviated from the essential requirements of the law in revoking the petitioner’s pro hac vice status.

Florida law allows for the revocation of an attorney’s pro hac vice status when the misconduct “adversely impacts the administration of justice.” State Indus., Inc. v. Jernigan, 751 So.2d 680, 682 (Fla. 5th DCA 2000). But, an attorney cannot be disqualified without notice and an opportunity to be heard. Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1211 (11th Cir.1985). Florida has consistently required notice and an opportunity to be heard before sanctions are imposed upon counsel. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002).

Here, Coleman did not allege misconduct on the part of the petitioner and did not seek revocation of his status in the motion seeking a default against the petitioner’s client Morgan Stanley. The idea first arose in a verbal request by Coleman’s counsel at the end of the hearing on the motion for an adverse inference. The order resulting from that hearing did not revoke the petitioner’s pro hac vice status.

The petitioner did not have notice and was not given an opportunity to be heard concerning the revocation of his pro hac vice status. While the record is replete with allegations of misconduct on behalf of his client, no such allegations were directed toward him. In fact, the trial court repeatedly indicated that counsel was simply the messenger. There was no suggestion, let alone any finding, of misconduct on the part of counsel. Indeed, the order revoking the petitioner’s status fails to contain any finding of misconduct on the part of the petitioner giving rise to the sanction. We therefore find the trial court’s order deviated from the essential requirements of the law.

The petitioner next argues that the revocation of his pro hac vice status has caused him irreparable harm by damaging his professional reputation and his ability to practice law in Florida and other jurisdictions. See Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367 (11th Cir.1989). We agree.

Florida’s rule on pro ha£ vice admissions provides that “[n]on-Florida lawyers who have been disciplined or held in contempt by reason of misconduct committed while engaged in representation that is permitted by this rule shall thereafter be denied admission under this rule and the applicable provisions of the Florida Rules of Judicial Administration.” R. Regulating Fla. Bar 1-3.10(a)(3). See also Fla. R. Jud. Admin. 2.061. As the petitioner litigates throughout the United States, the revocation of his pro hac vice status will have an adverse impact on his ability to seek that status in this and other jurisdictions. The petitioner has sustained the requisite injury to warrant the granting of a petition for writ of certiorari.

The last question to be answered is whether the remedy requires further evi-dentiary hearing in the trial court. We can see no value in remanding this case to the trial court. The petitioner is no longer counsel of record, the underlying litigation is currently pending appeal in this court, and Coleman neither requested the sanction in writing nor introduced evidence of misconduct on the part of the petitioner at the evidentiary hearing. We therefore grant the petition, issue the writ, and direct the trial court to strike the revocation of the petitioner’s pro hac vice status from its order of March 23, 2005.

Petition Granted.

KLEIN and TAYLOR, JJ., concur.


author: WELLS, Judge.

text:
    EPICOR SOFTWARE CORPORATION, Appellant, v. COOPERS & CLARKE, INC., Appellee.
    No. 3D05-2378.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Jacobson, Sobo & Moselle, Plantation, and Mark W. Rickard, Fort Lauderdale, for appellant.
    Franklin Antonio Jara, Miami, for appel-lee.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   WELLS, Judge.

Epicor Software Corporation appeals from an order granting a Rule 1.540(b)(3) motion to set aside a final judgment. We reverse.

On March 3, 2003, Epicor filed a three count complaint against Coopers & Clarke, Inc. claiming damages for an open account, for an account stated and for goods sold and delivered. Coopers filed no answer but sent a facsimile to Epicor claiming no obligation to Epicor and advising Epicor’s attorneys to “contact your client and try to resolve the matter as this lawsuit should not have been filed.” Epicor moved for and was granted a default.

Epicor thereafter filed, and served on Coopers, a motion for entry of a final judgment and accompanying affidavits of indebtedness and costs. On May 30, 2003, final judgment was entered against Coopers on Epicor’s claims. Over one year later, on August 27, 2004, Coopers filed a verified 1.540(b)(3) motion to set aside that judgment claiming that Epicor had “improperly obtained a judgment by failing to bring to the attention of the Court [Coopers’] March 13, 2003 answer, which was sent via facsimile with facsimile confirmation requested.” The motion was granted, we reverse.

Rule 1.540 expressly provides that a(b)(3) motion to set aside a final judgment for fraud, misrepresentation, or misconduct “shall be filed ... not more than 1 year after the judgment ... was entered or taken.” Failure to raise this ground within that time deprived the court below of jurisdiction to address this claim:

The trial court’s authority to modify, amend, or vacate an order or final judgment after rendition of the final judgment is limited to the time and manner provided by rule or statute. Under the present rules, after the rendition of the final judgment, the trial court retains jurisdiction for the ten-day period during which a motion for rehearing may be filed and, if filed, until disposition of the motion. The trial court thereafter loses jurisdiction except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540.

Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1388-89 (Fla. 3d DCA 1986) (footnotes and citations omitted); Bank One, N.A. v. Batronie, 884 So.2d 346, 348-49 (Fla. 2d DCA 2004) (“After rendition of a final judgment, the trial court loses jurisdiction over the case except to enforce the judgment and except as provided by rule 1.540. “[T]he one exception to the rule of absolute finality is rule 1.540, ‘which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances.’ ” Among those circumstances ... is compliance with the time limit of rule 1.540(b)(3), which, like other jurisdictional time limits such as the time for filing a notice of appeal or a motion for a new trial, may not be extended for any reason.... Once beyond the reach of rule 1.540(b), [a] final judgment ... ‘passe[s] into the unassailable realm of finality.’ ”) (citations omitted).

Accordingly, we reverse the order granting Coopers’ 1.540(b)(3) motion and remand with directions to reinstate the final judgment.


author: CASANUEVA, Judge.

text:
    Edward GOULD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5700.
    District Court of Appeal of Florida, Second District.
    May 24, 2006.
   CASANUEVA, Judge.

Edward Gould appeals an order that dismisses a portion of claim one, denies a portion of claim one, and denies the remainder of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the postconviction court’s partial dismissal of claim one and the denial of claims two and three and reverse the partial denial of claim one.

In claim one of his motion, Gould alleged he entered his no contest plea based upon an improperly calculated scoresheet and, therefore, his plea was involuntary. He further alleged that had he been aware of the miscalculations made on the score-sheet, he would not have pleaded no contest. In denying the claim, the postconviction court concluded the claim was moot because Gould previously filed a rule 3.800(a) motion raising the same score-sheet errors, the errors were corrected, and Gould was resentenced on November 2, 2001.

Upon review of the July 26, 2000, rule 3.800(a) motion attached to the postconviction court’s order, this court finds that the postconviction court properly concluded that Gould raised the same scoresheet errors in his rule 3.800(a) motion. The post-conviction court’s order indicates that Gould was resentenced in response to his rule 3.800(a) motion. However, the record on appeal does not contain the postconviction court’s ruling on the rule 3.800(a) motion or the new scoresheet used at the November 2, 2001, resentencing.

Therefore, the record on appeal does not support the postconviction court’s finding that the scoresheet errors alleged in the rule 3.800(a) motion were corrected or that the November 2, 2001, resentencing resolved the alleged scoresheet errors, thereby making Gould’s involuntary plea claim moot. Accordingly, the attachments to the postconviction court’s order do not support its findings. We therefore reverse and remand for further proceedings. On remand, if the postconviction court again denies the claim, it shall attach those portions of the record that conclusively refute Gould’s claim. See McPherson v. State, 750 So.2d 125 (Fla. 2d DCA 2000).

Affirmed, in part, and reversed, in part, and remanded for further proceedings.

ALTENBERND and WALLACE, JJ., Concur.


text:
    James W. PIERRE, Appellant, v. ESTATE OF Dieudonne PIERRE, Appellee.
    No. 3D05-2580.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Steven K. Schwartz, for appellant.
    Roy S. Elkin; Nancy C. Wear, for ap-pellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

James W. Pierre appeals an “Order Establishing and Probating Lost or Destroyed Will and Appointing Personal Representative.”

Upon the death of Dieudonne Pierre, the deceased’s original will could not be located, however, a copy of the will was found. A petition to establish and probate a lost or destroyed will and to appoint a personal representative was filed in the circuit court. After conducting an evidentiary hearing, the circuit court granted the petition, finding that, while the original will could not be located, thereby creating a presumption that the deceased destroyed the will with the intent to revoke it, the presumption was overcome by the evidence presented at the hearing. As the record contains competent substantial evidence which supports the trial court’s determination that the presumption of revocation was overcome, we affirm.

In the instant case, Sophia Masere, the daughter of Ms. Pierre, the deceased, who had been living with her mother when she died, testified that she had seen the original will a couple of years prior to her mother’s death; that after her mother’s death, her brother, the appellant, came to the house, went to the closet where her mother kept all of her important papers, and took two folders; and that the appellant only returned one of the folders which contained insurance documents. Sharon Brown, the deceased’s attorney and personal friend, testified that she handled the closing on the home where the decedent was living at the time of her death, as well as other legal issues for Ms. Pierre, including the drafting of Ms. Pierre’s will in 1995, as well as the 1998 will, which is the will in question in these proceedings. Ms. Brown stated that, when Ms. Pierre wished to change her will in 1998, she brought the 1995 will with her so that it could be destroyed. Dr. Masere, the deceased’s stepson and personal representative of the deceased’s estate, testified that Ms. Pierre sent him a copy of the 1998 will appointing him as personal representative and that she had never sent him anything indicating that she intended to revoke the 1998 will. The appellant, Mr. Pierre, who “lost contact” with his mother for ten years prior to her death, but was with her for a period of time during her hospitalization just prior to her death, admitted to taking two folders from his mother’s closet after her death, but denied taking her will. It was undisputed that, while his mother was in the hospital, he obtained possession of his mother’s purse, checkbook, and title for her car, and while he drove the car, he failed to make any of the outstanding payments to the lender.

When a person who executes a will dies and the will cannot be located, a rebuttable presumption arises that he or she destroyed the will with an intent to revoke it. See In re Estate of Hatten, 880 So.2d 1271, 1274 (Fla. 3d DCA 2004)(stat-ing that when a decedent who has made a will dies, and the will cannot be found among the decedent’s personal papers or in other logical locations, a rebuttable presumption arises that the decedent herself destroyed the will with the intent to revoke it). The presumption may, however, be rebutted with competent substantial evidence that the interested party had access to the testatrix’s home, an opportunity to destroy the will, and a pecuniary interest in doing so. See Walton v. Estate of Walton, 601 So.2d 1266, 1267 (Fla. 3d DCA 1992)(explaining that the presumption that a decedent destroyed her will with the intention of revoking it may be overcome by competent and substantial evidence, and that “the existence of persons with an adverse interest in destroying a will who have an opportunity to do so, may serve to rebut the presumption that the will has been revoked”).

As we conclude that there is competent substantial record evidence to support the trial court’s finding that the presumption of revocation was overcome, we affirm.

Affirmed.


author: SILBERMAN, Judge.

text:
    Alvin HARGROVE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3625.
    District Court of Appeal of Florida, Second District.
    May 24, 2006.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Alvin Hargrove appeals his convictions and sentences for resisting an officer with violence, battery on a law enforcement officer, possession of cocaine, and possession of drug paraphernalia. Because the State failed to present sufficient evidence to support Hargrove’s convictions for possession of cocaine and possession of drug paraphernalia, we reverse those convictions and the corresponding sentences. Our reversal renders Hargrove’s challenge to the jury instructions on these two offenses moot. We affirm without comment Har-grove’s convictions and sentences for resisting arrest with violence and battery on a law enforcement officer.

On March 23, 2002, a deputy with the Hendry County Sheriffs Office stopped the car that Hargrove was driving. A passenger was in the front seat, and two passengers were in the rear seat. Har-grove exited the car and spoke with the deputy while the passengers remained in the car. Two other deputies arrived, and one began checking on the passengers and looking into the car. This deputy saw a “smoking crack pipe” on the front floorboard on the driver’s side of the car. None of the deputies saw Hargrove in possession of the pipe, and they did not see whether the passengers made any hand movements prior to the discovery of the pipe. The pipe contained residue that tested positive for cocaine.

At trial, Hargrove’s theory of defense was that he was not in possession of the pipe and that one of the passengers could have placed it on the floorboard after he exited the car. At the close of the State’s case and again after all of the evidence had been presented, Hargrove moved for a judgment of acquittal as to the possession charges. He argued that other than establishing the location of the pipe and the fact that he had been driving the car, the State did not present any evidence connecting him to the pipe and residue or demonstrating his knowledge of their presence or illicit nature.

Because Hargrove was not in actual possession of the pipe, the State had to establish his constructive possession of the pipe and residue. See Downard v. State, 793 So.2d 83, 84 (Fla. 2d DCA 2001); Skelton v. State, 609 So.2d 716, 716-17 (Fla. 2d DCA 1992). In a constructive possession case, it is the State’s burden to “prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was able to exercise dominion and control over them, and knew of their illicit nature.” K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004); see also Downard, 793 So.2d at 84-85. When a vehicle is jointly occupied, a defendant’s “[m]ere proximity to contraband is insufficient to establish constructive possession.” Skelton, 609 So.2d at 717. Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in .a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband. Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999); E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996).

Here, the State’s sole proof of Har-grove’s constructive possession was the pipe’s proximity to the seat that he had been occupying in the car. Even if we accept the State’s view of the evidence and its argument that Hargrove’s knowledge of the contraband should be inferred because the pipe was emanating smoke when the deputy found it, there was no evidence that Hargrove was able to exercise dominion and control over the pipe.

Because the State did not present sufficient evidence to establish Hargrove’s constructive possession of the pipe and residue, the trial court erred by not granting his motion for a judgment of acquittal as to the possession charges. Therefore, we reverse Hargrove’s convictions and sentences for possession of cocaine and possession of drug paraphernalia. We affirm his convictions for resisting an officer with violence and battery on a law enforcement officer.

Affirmed in part and reversed in part.

WHATLEY and LaROSE, JJ., Concur.

      . Hargrove does not challenge the validity of the stop or the discovery of the cocaine and drug paraphernalia.

      . The parties disagree as to whether the descriptive phrase "smoking crack pipe” should be interpreted as meaning that smoke was emanating from the pipe or that the pipe was simply one used for smoking crack cocaine. The testimony at trial provides no additional insight.

      . Since the enactment of section 893.101, Florida Statutes (2002), which became effective May 13, 2002, a defendant’s knowledge of the illicit nature of the contraband is no longer required to establish a defendant's constructive possession of contraband. See ch. 02-258, § 1, at 1848, Laws of Fla. Rather, a defendant may assert his lack of knowledge of the illicit nature of contraband as an affirmative defense. § 893.101(2). Here, the incident occurred prior to the effective date of the statute.


text:
    Jamie Maurice DESIRE a/k/a Jamie Nivol, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2857.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Russell Warren Mace III, Boca Raton, for appellant.
    Charles J. Christ, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Jamie Maurice Desire, a/k/a Jamie Nivol (“Desire”) appeals his convictions for multiple offenses arising out of his participation in an armed carjacking of a UPS truck. The sole claim raised by Desire is a claim of ineffective assistance of trial counsel. We affirm.

The record reflects that, at the time Desire was charged with committing the offenses in this case, he was on probation in two other cases. A probation violation hearing was conducted on September 22, 2003, and a jury trial was commenced nearly one year later on August 30, 2004. Desire claims he was denied a fair trial due to his lawyer’s failure to “prepare” a motion to suppress Desire’s pre-trial statement for the probation violation hearing, and trial counsel’s failure to ensure that he had a “proper” hearing on his motion to suppress prior to trial.

As a general rule, claims of ineffective assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is apparent on the face of the record, which is rarely the case. See Bradberry v. State, 922 So.2d 457, 458 (Fla. 4th DCA 2006); Lambert v. State, 811 So.2d 805, 807 (Fla. 2d DCA 2002); Thompson v. State, 764 So.2d 630, 631 (Fla. 1st DCA 2000).

Based upon the record before us, we see no reason to deviate from that rule. While Desire’s attorney did not file a motion to suppress Desire’s statement for the probation violation hearing, the record reflects that a hearing to suppress his statement was in fact conducted prior to the probation violation hearing, and the trial court specifically concluded that Desire’s statement was freely and voluntarily made and did not violate the protections of the Fourth, Fifth, or Sixth Amendments to the Constitution. Prior to the trial of the substantive charges, the Assistant Public Defender who had been representing Desire, was permitted to withdraw and new counsel was appointed. The transcript which has been made a part of this record, reflects that Desire’s subsequently-appointed counsel read a transcript of the suppression hearing conducted prior to the probation violation hearing, prepared a written motion to suppress which was based upon the same grounds previously litigated, and the trial court again denied the motion. As it is clear a suppression hearing was conducted prior to the probation violation hearing, the trial court made specific findings that the statement was freely and voluntarily made, and Desire’s motion to suppress his statement was reconsidered by the trial court prior to trial, we cannot conclude on the face of the record that either of the attorneys who represented Desire provided ineffective assistance of counsel.

Affirmed.

      . Desire's attorney explained that she had not filed a motion to suppress Desire's statement because Desire claimed that he had not made a statement. After discussions with the trial court, however, a suppression hearing was conducted.


text:
    STATE of Florida, Appellant, v. R.A., a child, Appellee.
    No. 4D05-2797.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Richard L. Rosenbaum of the Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellee.
   PER CURIAM.

The State appeals the trial court’s failure to order the suspension of R.A.’s driver’s license pursuant to section 322.056, Florida Statutes (2005), after the court found R.A. delinquent and placed him on probation. We agree that suspension was mandatory and reverse with directions that R.A.’s driver’s license be suspended in accordance with section 322.056.

A petition charged seventeen-year-old R.A. with possession of cannabis in violation of sections 893.13(6)(b) and 893.03(l)(e). R.A. pled no contest to the charge, and the trial court withheld adjudication, placed R.A. on probation for six months, and ordered him to perform community service. At that time, the State requested that the trial court impose the mandatory driver’s license suspension requirement contained in section 322.056, Florida Statutes, which provides:

Notwithstanding the provisions of section 322.055, if a person under 18 years of age is found guilty of or delinquent for a violation of section 562.11(2), 562.111, or chapter 893, and
(a) The person is eligible by reason of age for a driver’s license or driving privilege, the court shall direct the department to revoke or to withhold issuance of his or her driver’s license or driving privilege for a period of:
1. Not less than 6 months and not more than 1 year for the first violation.
2. Two years, for a subsequent violation.

The State also cited various decisions from the Second and Fifth Districts, including State v. J.V.W., 739 So.2d 173 (Fla. 2d DCA 1999), where the court held that the driver’s license suspension requirement of section 322.056(1) is mandatory, even when a no contest plea has been entered and adjudication has been withheld. Likewise, in State v. R.N., 597 So.2d 862 (Fla. 5th DCA 1992), the court held that section 322.056 does not require adjudication, but requires only a finding of delinquency, and the trial court’s acceptance of a no contest plea constitutes a finding of delinquency, thereby implicating the suspension requirement in section 322.056.

However, finding no decision on point from our court, the trial court concluded that it was not bound by the decisions of the Second and Fifth Districts and opined that a withhold of adjudication of delinquency did not require a mandatory suspension of the minor’s driver’s license for the first violation of Chapter 893.

On appeal, the State argues that the trial court was required to follow precedent from the Fifth and Second Districts on this issue because there is no Fourth District decision on point. We agree. In the absence of interdistrict conflict, district court decisions bind all Florida trial courts. Pardo v. State, 596 So.2d 665, 666 (Fla.1992). Consequently, because there is no Fourth District decision on point, the trial court in this case was required to follow the decisions of the Second and Fifth Districts and enter an order directing the Department of Motor Vehicles to suspend R.A.’s driver’s license.

Furthermore, we agree that section 322.056 mandates revocation of driving privileges for a juvenile who is found delinquent for violating Chapter 893. There is no language in this statute that allows a trial court to use its discretion in applying the penalty. The trial court’s acceptance of R.A.’s no contest plea constituted a finding of delinquency, which is sufficient to implicate the suspension requirements in section 322.056. Therefore, we conclude that the trial court erred when it failed to order the suspension of R.A.’s driver’s license after withholding adjudication.

We also find no merit in R.A.’s argument that the trial court lacks jurisdiction to order suspension of his driver’s license at this point because he has already served the full term of his probation. Section 985.201(4)(a), Florida Statutes, allows the trial court to retain jurisdiction, unless relinquished by order, until the minor reaches nineteen years of age: Furthermore, although section 322.056 applies only to a child under eighteen years of age, R.A.’s plea was entered and accepted when he was seventeen years old, and therefore, the trial court was required to order suspension of R.A.’s driving privileges. See State v. M.D., 706 So.2d 41, 42 (Fla. 2d DCA 1998) (finding that because plea was entered and accepted while defendant was seventeen years of age, trial court was required to direct the Department of Highway Safety and Motor Vehicles to suspend defendant’s driving privileges).

Accordingly, we reverse and remand with directions that R.A.’s driver’s license be suspended in accordance with the requirements of section 322.056.

Reversed.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.


text:
    Elizabeth K. WADE, Chairperson, and the individual named members of the City of Riviera Beach Community Redevelopment Agency and the City of Riviera Beach, Appellants, v. Michael D. BROWN, Mayor, City of Riviera Beach, Appellee.
    No. 4D05-3853.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Leonard G. Rubin of Leonard G. Rubin, P.A., West Palm Beach, for appellants.
    Michael D. Brown of Brown & Associates, P.A., Riviera Beach, for appellee.
   PER CURIAM.

In 1992, the City Council for Riviera Beach declared itself a Community Redevelopment Agency (“CRA”) under the Community Redevelopment Act of 1969. When the CRA’s Board informed Michael Brown, the Mayor of Riviera Beach, that he could speak at CRA meetings only from the podium, he sought (1) a declaratory judgment stating that, as a member of Riviera Beach’s governing body, he was entitled to speak from the dais, and (2) a temporary injunction preventing the CRA from prohibiting him from speaking from the dais. Reserving consideration of the merits of the petition for declaratory judgment to a later day, the trial court granted the Mayor’s request for an injunction. We reverse the temporary injunction order because the record fails to demonstrate irreparable harm.

This court has held that “[a] temporary injunction may be granted if the complainant shows ‘(1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.’ ” Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 438 (Fla.4th DCA 2006) (quoting Net First Nat’l Bank v. First Telebanc Corp., 834 So.2d 944, 949 (Fla. 4th DCA 2003)). “ ‘Clear, definite, and unequivocally sufficient factual findings’ must support each of these four criteria before the court may enter the injunction.” Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So.2d 226, 227 (Fla. 4th DCA 2002) (referencing City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 754 (Fla. 1st DCA 1994), approved, 659 So.2d 1046 (Fla.1995)). “ ‘To the extent it rests on purely legal matters, an order imposing an injunction is subject to full, or de novo, review on appeal.’ ” Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002) (quoting Operation Rescue v. Women’s Health Ctr., Inc., 626 So.2d 664, 670 (Fla.1993)).

In granting the temporary injunction, the trial court opined that the Mayor and the citizens would be irreparably harmed if the Mayor could not participate in discussions. There was, however, no evidence to support a finding that the Mayor could not participate in discussions. In fact, the Mayor acknowledged he had the option of participating in discussions, albeit from the podium, and there was no evidence showing that the CRA would in any way restrict the Mayor’s discussions. Rather, the Mayor simply refused to speak from the podium. The trial court’s order not only failed to acknowledge the Mayor’s ability to speak from the podium, but, more importantly, failed to establish how permitting him to speak only from the podium would cause irreparable harm. An injunction prior to final judgment is a drastic and extraordinary remedy; a trial court reversibly errs when an order fails to make specific findings for each of the elements. See Milin v. Nw. Fla. Land, L.C., 870 So.2d 135, 137 (Fla. 1st DCA 2003) (calling an order granting a temporary injunction “defective” when it “failed to set forth any factual findings in support of the four criteria”).

Accordingly, we reverse the order granting the temporary injunction and need not reach the other issues on appeal.

Reversed.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.

      . See § 163.330, Fla. Stal. As an alternative to appointing independent members to make up the CRA, the “governing body” may declare itself to be the CRA. See § 163.357, Fla. Stat.


text:
    Detavioun D. INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3097.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for robbery with a deadly weapon, grand theft, and aggravated assault. He argues that the convictions for robbery and grand theft violate his constitutional right against double jeopardy. The State concedes the issue. We reverse.

The defendant and friends crashed a party. When the party host ordered them out of the house, the defendant pulled a gun. On his way out of the home, one of the intruders took a chain from one of the guests. The defendant again used his gun to prevent the guest from taking any action to regain possession of the chain. The State charged the defendant with robbery with a deadly weapon, grand theft, and aggravated assault. The jury convicted the defendant of all three crimes.

Our federal and state constitutions guarantee protection against double jeopardy. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. Theft is a permissive lesser included offense of robbery with a firearm or deadly weapon. Fla. Std. Jury Instr. (Crim.) 15.1 tbl.; Junior v. State, 763 So.2d 1056 (Fla. 4th DCA 1999). When the property taken is the basis for both the conviction for robbery and grand theft, then the defendant’s double jeopardy rights have been violated. Sirmons v. State, 634 So.2d 153 (Fla.1994); Miller v. State, 867 So.2d 1274 (Fla. 4th DCA 2004). The State agrees.

For this reason, we reverse and remand the case for the trial court to vacate the grand theft conviction and sentence.

Reversed and Remanded.

STEVENSON, C.J., and GUNTHER J., concur.


author: POLEN, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Patricia SHARKEY, Appellee.
    No. 4D05-3046.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellant.
    No appearance for appellee.
   POLEN, J.

Appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals a final order denying its motion for attorney’s fees and costs. This case began with a car accident in which Appel-lee, Patricia Sharkey, was struck from behind. Sharkey sued the owner of the vehicle that had struck her and eventually settled for a sum in excess of $200,000. Alleging that her injuries exceeded this amount, Sharkey sued State Farm to recover under her Uninsured Motorist/Un-derinsured Motorist policy. Based on Sharkey’s prior settlement and its belief that its exposure to liability was minimal, State Farm filed a proposal for a nominal settlement, offering Sharkey $500. Shar-key did not accept this offer. Sharkey’s suit did not result in the recovery of additional damages from State Farm. State Farm filed a motion for entitlement to attorney’s fees and costs, pursuant to section 768.79, Florida Statutes (2005). The trial court denied State Farm’s motion. We find that the trial court abused its discretion in denying State Farm’s motion and reverse.

The trial court found that State Farm’s proposed settlement was nominal, and that it did not have a reasonable basis to file a nominal settlement proposal. Offers are not suspect merely because they are nominal. See Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996). Offers, nominal or otherwise, must bear a reasonable relationship to the amount of damages or a realistic assessment of liability. Id. at 948. “The rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.” Connell v. Floyd, 866 So.2d 90, 94 (Fla. 1st DCA 2004). “The offer need not equate with the total amount of damages that might be at issue.” Gurney v. State Farm Mut. Auto. Ins. Co., 889 So.2d 97, 99 (Fla. 5th DCA 2004). “The trial judge will have to consider all the surrounding circumstances when the offer was made.” Fox v. McCaw Cellular Commc’ns of Fla., 745 So.2d 330 (Fla. 4th DCA 1998).

We find that State Farm had a reasonable basis for making a nominal settlement offer. At the time State Farm made the offer of $500, it was aware of Sharkey’s past medical expenses, but was also aware that Sharkey had received a settlement in excess of $200,000. This information gave State Farm reason to believe its liability for past medical damages was nominal. Further, based on other evidence available to State Farm at the time of the offer, we find that State Farm had a reasonable basis for believing that its exposure to liability for other claimed damages was minimal. Therefore, we find that the trial court abused its discretion in denying State Farm’s motion and reverse.

KLEIN and SHAHOOD, JJ., concur.


text:
    Adrian SANKAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1002.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by Adrian Sankar, appellant, from a conviction and sentence on the charge of aggravated battery. It was alleged that he struck the victim, Carl Toolsie (Toolsie), in the eye with a bottle. We reverse and remand for a new trial based on the following.

On the night of the incident leading to the charges against appellant in this case, Toolsie was sitting at the bar waiting for a friend when appellant approached and pushed him and “said something about ‘getting it on.’ ” Toolsie told appellant to “leave this thing alone” and turned away from him to order a drink. Before Toolsie could order the drink, appellant pushed Toolsie again. Toolsie turned to walk away, but a friend of appellant held him by the elbow while appellant struck him with a bottle, hitting him in the eye. Toolsie did not actually see what hit him but felt that it was a bottle. He sustained severe injuries to his eye.

Officer Berryman, who responded to the scene within two minutes of receiving the call, found Toolsie with a blood soaked towel on his eye “withering in pain, screaming, ‘my eye, my eye.’ ” When the towel was removed, Officer Berryman saw blood running down Toolsie’s face, his eye swollen, and part of his eyelash and eyelid “hanging way down.” Although there were several witnesses on the scene, they were very uncooperative with the police and did not give any information about the incident. Patrons of the bar, as well the staff at the bar, all said that they did not see anything. Officer Berryman testified, over defense’s hearsay objection, however, that one person came forth and that his story, in the officer’s estimation, was “consistent with what took place.”

Detective Krzepek conducted the followup investigation. He reviewed Officer Berryman’s report and took a taped statement over the telephone from the one witness who was referenced in the report. The prosecutor asked, without objection from the defense, whether the information received from that witness “corroborate[d] what the victim stated happened.” Detective Krzepek said that it did.

On cross-examination, Detective Krze-pek acknowledged that he had never met the other witness and had never even seen his driver’s license or any other type of identification to verify that he even existed.

Appellant testified that he was standing at the bar waiting to pay his bill when Toolsie said, “it’s you,” “what about the money you owe my wife.” Appellant said that he did not know what Toolsie was talking about and tried to ignore him, but Toolsie began calling appellant a thief and shouting that he had robbed Toolsie’s wife. Appellant denied robbing Toolsie’s wife and told Toolsie to stop, but Toolsie took a swing at appellant. As Toolsie was approaching appellant “very aggressively,” appellant “punched him out.” He swung at Toolsie with his right hand, hitting him in the cheek. Toolsie fell backwards on to a table and appellant helped him back up. He then handed Toolsie a napkin for the blood.

Officer Berryman, the original investigating officer at the scene, testified, over defense objection, that one witness’ statement was “consistent with what took place.” Thereafter, the second officer, Detective Krzepek, who followed up on the investigation testified, without objection, that the witness’ statement “corroborated what the victim said happened.” In closing argument, the prosecutor highlighted Officer Berryman’s testimony, as follows: “Officer Berryman also testified he took down a witnesses’ [sic] name, that he took down a witness whose statement as to what happened corroborated and was exactly as to what the victim stated had happened.” The prosecutor further highlighted the non-appearing witness’ statement, as follows: “[T]hat individual stated the same exact thing that he stated to Officer Berryman and that was that Adrian Sankar struck the victim with a bottle.”

In Minnis v. State, 645 So.2d 160 (Fla. 4th DCA 1994), this court reversed the trial court for allowing a police officer to testify over defense objection that he had been told by a witness that she had overheard on the telephone another witness say that appellant might have committed the crime. Such testimony was inadmissible hearsay.

In addition, this court has held that a victim’s statement to a police officer during an interview in the hospital was inadmissible hearsay even though it corroborated the victim’s prior consistent statement. See Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991). The statement may not come in at trial, especially not through the testimony of the police officer, because it tends to bolster the credibility of the witness. Id. at 439; see also Seibert v. State, 923 So.2d 460, 472 (Fla.2006) (quoting Page v. State, 733 So.2d 1079, 1081 (Fla. 4th DCA 1999)) (holding that “[i]t is especially harmful for a police witness to give his opinion of a witnesses’ credibility because of the great weight afforded an officer’s testimony”); Peterson v. State, 874 So.2d 14 (Fla. 4th DCA 2004) (holding that detective’s testimony that the victim identified appellant as the shooter was inadmissible hearsay and particularly prejudicial because it was offered through a police officer).

Based on the foregoing cases, the trial court in this case erred in allowing Officer Berryman to testify that the statement of the only person on the scene to come forward was “consistent with what took place.” Officer Berryman was not present when the incident occurred; therefore, he was not personally familiar with what took place. Presumably, the only information he had at the time of speaking to the anonymous witness was information which had been given to him by the victim because none of the many people who were present would cooperate.

We accordingly reverse and remand for a new trial. Because we are reversing for a new trial, we decline to address all other issues raised by appellant.

Reversed and Remanded for New Trial.

KLEIN and TAYLOR, JJ., concur.


author: BAILEY, JENNIFER D.,

text:
    Ismail Malik SHABAZZ a/k/a Warner McCullough, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1089.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.

      R. Wayne Richter of Perlet & Shiner, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   BAILEY, JENNIFER D.,

Associate Judge.

Ismail Malik Shabazz appeals his conviction for second degree murder.

The facts reveal two widely different stories in the case. The state’s witnesses testified at trial that Shabazz and an accomplice attempted to rob the victim and shot at him, critically injuring him. The state conceded that the victim returned fire. Additional evidence suggested drug sales were involved. Shabazz was identified by a computer book he dropped at the scene. An arrest warrant was issued and he was taken into custody in central Florida.

The victim’s wife originally told investigators that her husband shot first. At trial, she testified that Shabazz shot first.

Shabazz testified as the last witness in the case. In contrast to the state’s evidence, he testified that he went to the victim’s house to buy cocaine. The victim started shooting at him. He shot back in self-defense and fled.

Clearly, the testimony framed classic conflicting versions of events that a jury would have to reconcile. The physical evidence was inconclusive as to who shot first.

During the cross-examination of Shabazz, the prosecutor, in his zeal to imply that Shabazz’s story was recently fabricated, asked: “This is the first time you’ve told your version of the events, right here to this jury, you’ve never told it to anybody else before, have you?” Defense counsel objected and moved for a mistrial based on the prosecutor’s impermissible comment on Shabazz’s right to remain silent. The trial court overruled the objection, denied the mistrial, and cross-examination proceeded. The prosecutor’s question was fairly susceptible of being interpreted by the jury as a comment on Shabazz’s right to remain silent and therefore was improper. See State v. Hoggins, 718 So.2d 761 (Fla.1998); Robbins v. State, 891 So.2d 1102.(Fla. 5th DCA 2004). The evidence against Shabazz was not conclusive. In this close case of conflicting stories where the jury had to decide whom to believe, there is a reasonable possibility that the error affected the verdict.

The state suggests that Shabazz waived the error by rejecting a curative instruction offered by the trial court significantly later in the trial. We find the error was not waived, in that the delay diminished the sufficiency of a curative instruction and at that point would have only highlighted the error. See Taylor v. State, 640 So.2d 1127 (Fla. 1st DCA 1994).

We therefore reverse and remand for a new trial.

Reversed and Remanded For New Trial.

WARNER and KLEIN, JJ., concur.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Oscar Glenn JAMES, Appellee.
    No. 2D05-76.
    District Court of Appeal of Florida, Second District.
    May 26, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   LaROSE, Judge.

The State challenges the trial court’s order granting Oscar Glenn James’s motion to dismiss the charge of habitual driving while license revoked. We reverse.

Mr. James faced a third-degree felony charge in Polk County; records from the Department of Highway Safety and Motor Vehicles (DMV) reflected a habitual traffic offender designation because Mr. James had three prior convictions for driving with his license suspended or revoked. See §§ 822.264(l)(d), .34(5), Fla. Stat. (2003). One of the prior convictions was based on Mr. James’s no contest plea in Hillsbor-ough County to driving with a suspended license. Without that conviction on the DMV records, Mr. James would not have had the habitual traffic offender designation.

In moving to dismiss the new charge in Polk County, Mr. James argued that there was no factual basis for his Hillsborough County plea. He asserted that his license should not have been suspended when law enforcement stopped him in Hillsborough County. In fact, his license was suspended only because the Sarasota County court clerk’s office failed to submit a clearance to the DMV indicating that Mr. James had paid a fine for an open container violation. According to Mr. James, because he thought he had a valid license and should have had a valid license absent the clerical error, there was no basis for the Hillsbor-ough County charge. Nevertheless, Mr. James entered his plea to the Hillsborough County charge.

At the hearing on the motion to dismiss, the State did not object to continuing the Polk County case so that Mr. James could try to set aside the Hillsborough County conviction and correct the DMV records. Over the State’s objection, the trial court granted the motion and dismissed the Polk County charge.

Our review is de novo. See Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003). The State did not file a traverse contesting the facts alleged in Mr. James’s motion. Consequently, the alleged facts are deemed admitted. Fla. R.Crim. P. 3.190(d); Bell, 835 So.2d at 393. However, the trial court still must consider the facts alleged in the motion to determine whether the State has established a prima facie case. State v. Paleveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999). The trial court must resolve all questions and inferences in favor of the State. If the facts alleged in the motion establish a prima facie case, the trial court must deny the motion. Id. Furthermore, the trial court cannot grant a motion to dismiss criminal charges even if it concludes that the case would not survive a motion for judgment of acquittal. Id. (holding that knowledge in possession case is question of fact; element of knowledge not proper consideration on motion to dismiss).

Under these principles, the trial court should not have dismissed the charge against Mr. James.

The violation created by section 322.34(5) does not involve — as an element of the crime — a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist’s license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.

Kallelis v. State, 909 So.2d 544, 545 (Fla. 4th DCA 2005) (quoting Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001)).

For a conviction, the statute requires the State to prove that (1) DMV maintains a record on the motorist, (2) DMV’s records show the requisite three separate convictions within a five-year period, and (3) DMV notified the motorist. Id. A certified copy of DMV’s records relating to the defendant may satisfy these requirements and establish the State’s pri-ma facie case. Id. (holding that defendant’s DMV driving record did not show requisite convictions to qualify him as habitual traffic offender; thus State did not prove prima facie case).

Despite his pending challenge to the prior Hillsborough County plea and conviction, Mr. James did not dispute that the DMV records reflected the requisite convictions for the habitual traffic offender designation. His challenge was to one of the underlying convictions that resulted in that designation. Whether or not his challenge to the Hillsborough County conviction has merit, at the time of the Polk County charge, the DMV records accurately reflected the existence of three prior convictions. Even if Mr. James is successful in vacating his Hillsborough County conviction, the DMV records would be affected only from the date that the conviction was set aside. Any collateral challenge to the Hillsborough County conviction, therefore, would not impact the facts as they were when Mr. James was stopped in Polk County. At that time, the DMV records accurately reflected the habitual traffic offender designation; the allegations in Mr. James’s motion to dismiss do not defeat the elements of the charge. On the record before it, the trial court erred in granting Mr. James’s motion to dismiss. See Paleveda, 745 So.2d at 1027; Kallelis, 909 So.2d at 545.

Reversed and remanded.

FULMER, C.J., and CANADY, J., Concur.


text:
    The ESTATE OF Naomi GITHENS, by and through the Personal Representative, Bettye SEAMAN, Appellant, v. BON SECOURS—MARIA MANOR NURSING CARE CENTER, INC., d/b/a Bon Secours—Maria Manor, a Florida corporation, Appellee.
    No. 2D05-2023.
    District Court of Appeal of Florida, Second District.
    May 26, 2006.

      Jay P. Dinan and D. Keith Thomas of Santa Lucia & Thomas, P.A., Clearwater, for Appellant.
    John A. Brekka Jr. and Christy Brig-man of Quintamos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, and Sheila Nicholson of Quintamos, Prieto, Wood & Boyer, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

The Estate of Naomi Githens, by and through the personal representative, Bettye Seaman (the Estate), appeals a final summary judgment entered in favor of Bon Seeours — Maria Manor Nursing Care Center, Inc., d/b/a Bon Seeours — Maria Manor, a Florida Corporation (the Nursing Home). The Estate brought this action pursuant to the nursing home residents’ rights statute, section 400.022, Florida Statutes (2002). The Estate claimed, among other things, that the Nursing Home was negligent with respect to a fractured tibia that Ms. Githens suffered while she was a resident of the Nursing Home and that this negligence caused or significantly contributed to her death. Because the Nursing Home failed to carry its burden in order to obtain a summary judgment, we reverse and remand for further proceedings.

Ms. Githens was admitted to the Nursing Home on November 20, 2000. She was wheelchair bound and suffered from Parkinson’s disease, Alzheimer’s disease, and osteoporosis. On August 23, 2002, Nursing Home staff noticed that Ms. Githens’ right leg was showing signs of abnormality. On August 26, 2002, X-rays revealed that Ms. Githens had suffered “a non-displaced spiral fracture to the distal tibia in her right leg.” She was hospitalized and subsequently died on September 30, 2002. Her death certificate reflects that at the time of her death, Ms. Githens was ninety-two years old. The certificate lists her immediate cause of death as cardio-respiratory arrest, although the record contains expert deposition testimony that the leg fracture contributed significantly to her death.

The Nursing Home sought summary judgment, arguing that the Estate’s claim improperly relied on the stacking of inferences. The Nursing Home contended that “the basic inference in this case, which is that the fracture that Ms. Githens suffered from occurred from the handling of another person can not, nor can it ever be established to the exclusion of any other reasonable theory.” The Nursing Home cited to the deposition of Gloria Cruz, one of Ms. Githens’ caregivers, to support its assertion that Ms. Githens had the ability to move herself while in bed. The Nursing Home also asserted that Ms. Githens had Parkinson’s disease, which results in involuntary movements, and that her bones were weakened due to severe osteoporosis. Thus, the Nursing Home argued that Ms. Githens had limited mobility and could have moved in such a way as to have caused the fracture. The Nursing Home suggested as examples that Ms. Githens could have gotten her foot caught in between the bed and the bedrail or she could have tangled her foot in the sheets, and that either circumstance, considering her severe osteoporosis, could have caused the fracture. It also suggested that perhaps someone other than a person affiliated with the Nursing Home, such as a visiting family member, may have moved Ms. Gith-ens’ leg to the point of causing the fracture.

The Estate responded by pointing to evidence reflecting that Ms. Githens was totally dependent on the Nursing Home staff for ambulating, turning, and repositioning. It argued that there was no evidence supporting the Nursing Home’s theory that perhaps Ms. Githens injured herself or that someone other than a Nursing Home staff member may have caused her injury. The Estate contended that there was no reasonable explanation as to how the injury occurred other than through the negligence of the Nursing Home and that if there were a factual dispute as to whether Ms. Githens could have injured herself, the dispute would be for the jury to resolve. Thus, it appears that the Estate’s basic inference is that the Nursing Home staffs handling of Ms. Githens caused her fracture.

The trial court granted summary judgment, stating that the Estate’s claim relies on several inferences to establish negligence; that there are multiple reasonable theories, not all of which implicate the Nursing Home, to explain how Ms. Githens received the injury; and that the Estate’s case “impermissibly relies on the stacking or pyramiding of inferences.”

Our review of a summary judgment is de novo. Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003). A movant is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). In determining whether a genuine issue of material fact exists, this court must view “every possible inference in favor of the party against whom summary judgment has been entered.” Maynard, 861 So.2d at 1206. It is the movant’s burden to prove the nonexistence of genuine issues of material fact, “and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000) (quoting Holl v. Talcott, 191 So.2d 40, 44 (Fla.1966)). We recognized in Nard that “the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Id. Then, “if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law.” Maynard, 861 So.2d at 1206.

The improper stacking of inferences may be an appropriate basis for the entry of summary judgment. See, e.g., Cohen v. Arvin, 878 So.2d 403 (Fla. 4th DCA 2004). With respect to the stacking of inferences, the Florida Supreme Court in Nielsen v. City of Sarasota, 117 So.2d 731, 733 (Fla.1960), explained that

if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

See also Sch. Bd. of Broward County v. Beharrie, 695 So.2d 437 (Fla. 4th DCA 1997) (recognizing the rule in Nielsen and reversing, based on the improper stacking of inferences, a final judgment after jury trial). In discussing reasonable inferences, the supreme court has stated that “[w]e cannot overemphasize our use of the adjective ‘reasonable’ as modifying the noun ‘inference.’ ” Voelker v. Combined Ins. Co. of Am., 73 So.2d 403, 406 (Fla. 1954). Thus, the issue is whether the Nursing Home, in moving for summary judgment, established that other reasonable inferences existed to compete with the reasonable inference that the Nursing Home staffs handling of Ms. Githens caused her fracture.

The depositions of Ms. Githens’ caregivers at the Nursing Home reflect that none of them admitted to any knowledge of how the fracture had occurred, although the witnesses acknowledged that Ms. Githens was totally or almost totally dependent on staff care for ambulation, turning, and repositioning. An expert physician for the Estate, Dr. Williams, opined that the fracture likely resulted from the inappropriate handling of Ms. Githens by Nursing Home staff. The Nursing Home speculates that perhaps someone other than a staff member moved and injured Ms. Githens, but it points to nothing in the record reflecting that individuals other than staff members moved Ms. Githens in a manner that might have caused the injury. Further, although the Nursing Home suggests that perhaps Ms. Githens moved herself with sufficient force to cause the injury, again nothing in the record establishes that she could have done so.

We conclude that the Nursing Home has failed to sustain its heavy burden to prove the nonexistence of any genuine issues of material fact. The Nursing Home has failed to prove that its suggested competing inferences are reasonable inferences. As the law recognizes, “if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, 769 So.2d at 1140. Therefore, we reverse the summary judgment and remand for further proceedings.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.


author: ALTENBERND, Judge.

text:
    In re: COMMITMENT OF William CAMPER. William Camper, Appellant, v. State of Florida, Appellee.
    No. 2D04-5092.
    District Court of Appeal of Florida, Second District.
    May 26, 2006.
    James Marion Moorman, Public Defender, and Jeanine Cohen, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

William Camper, who is the subject of an involuntary civil commitment as a sexually violent predator, appeals an order continuing his involuntary commitment based upon a finding that there is no probable cause to believe that his condition has so changed that it is safe for him to be at large and that he will not engage in acts of sexual violence if discharged. See § 394.918, Fla. Stat. (2004). The finding was made during a limited probable cause hearing that addressed the involuntary commitment of Mr. Camper and four other similarly situated detainees: Timothy Stanley, Allen Riddick, Steven Allen, and Raymond Branch. None of the detainees presented-any evidence.

As we did in Mr. Allen’s case, Allen v. State, 927 So.2d 1070 (Fla. 2d DCA 2006), we affirm the order on appeal. Mr. Camper bore the burden of proof to establish the probable cause necessary to merit a trial regarding his continued commitment. Our affirmance is without prejudice to Mr. Camper’s seeking to present evidence supporting his release in a new limited probable cause hearing during his next annual review or sooner if such evidence is available. Allen, 927 So.2d at 1074 n. 5.

Affirmed.

STRINGER and VILLANTI, JJ„ ' . Concur.

      . See §§ 394.910-.931, Fla. Stat (2004) (commonly referred to as the "Jimmy Ryce Act").

      . At the limited probable cause hearing, counsel for Mr. Camper initially asserted that Mr. Camper has been diagnosed with paranoid schizophrenia, that Mr. Camper was not receiving adequate treatment of this condition, and that therefore he could not receive meaningful treatment as a sexually violent predator to secure his future release. Counsel later withdrew this claim and proceeded solely on the issue of whether or not probable cause was established under section 394.918. In future proceedings, nothing in this opinion should foreclose Mr. Camper from pursuing this issue.


author: VILLANTI, Judge.

text:
    The MEADOWS COMMUNITY ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. Louise Claire RUSSELL-TUTTY, Appellee.
    No. 2D05-416.
    District Court of Appeal of Florida, Second District.
    May 31, 2006.

      Robert L. Moore of Kanetsky, Moore & Deboer, P.A., Venice, for Appellant.

      Jeffrey A. Rapkin, North Port, for Ap-pellee.
   VILLANTI, Judge.

The issues presented by this appeal are whether the amended complaint filed by a homeowners’ association against a unit owner states a cause of action for declaratory and injunctive relief and, therefore, whether the trial court erred in dismissing, with prejudice, the amended complaint for failure to state a cause of action. In reviewing a final order such as this, the appellate court must accept the facts alleged in the complaint as true. See Lutz Lake Fern Road Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000). “Because the question of whether a complaint states a cause of action is one of law, the standard of review is de novo.” Id. The amended complaint stated a cause of action for declaratory and injunctive relief, and therefore we reverse the trial court’s order and remand for further proceedings.

The Meadows Community Association, Inc., a Florida homeowners’ association, filed an action against Louise Claire Russell-Tutty, a unit owner, seeking to clarify its rights under the Association’s documents. The Association sought to compel Ms. Russell-Tutty to require her invitee to comply with the Association’s rules, specifically to control her adult son’s reckless driving on the Association’s private roads. The complaint was later amended to add the son as a party. According to the amended complaint, the son resided with Ms. Russell-Tutty in her condominium, which is governed by the Association’s Declaration of Maintenance Covenants and Restrictions; the son repeatedly violated the speed limits and engaged in unsafe and reckless driving; and the local sheriffs department declined to enforce the alleged traffic violations on the Association’s private roads. The amended complaint sought both declaratory and injunctive relief involving the interpretation and enforcement of the Association’s Declaration. These claims are necessarily interrelated, and each turns on whether Ms. Russell-Tutty can be directed to control her son’s actions while he is her invitee on Association property.

Although the amended complaint consists of only one count, it advances two theories to support the injunctive relief request — violation of certain deed restrictions and abatement of a nuisance. Ms. Russell-Tutty filed an answer and a motion to dismiss for failure to state a cause of action. Ms. Russell-Tutty did not move to dismiss on the ground that the amended complaint could not be understood or that it improperly mixed causes of action in a single count.

[Wjhere a complaint contains sufficient allegations to acquaint the defendant with the plaintiffs charge of wrongdoing so that the defendant can intelligently answer the same, it is error to dismiss the action on the ground that more specific allegations are required.... A motion to dismiss a complaint for failure to state a cause of action does not reach defects of vague and ambiguous pleading.

Fontainebleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla.1971) (citations omitted). Indeed, the basis of the motion to dismiss here was Ms. Russell-Tutty’s defense — that enforcement of traffic laws is within the sole province of law enforcement, that courts cannot enjoin criminal behavior, that the amended complaint fails to allege a factual nexus between Ms. Russell-Tutty and her son, and that Ms. Russell-Tutty cannot be ordered to control the actions of another individual.

Following a hearing, the trial court granted the motion to dismiss with prejudice. In dismissing the amended complaint, the trial court gave no explanation for its ruling. The trial court’s order denying the motion for rehearing also failed to provide any explanation for its ruling.

On appeal, the Association argues that it sufficiently pleaded a cause of action based on Ms. Russell-Tutty’s alleged violations of the restrictive covenants. We agree that the facts alleged in the amended complaint state a cause of action for injunctive and declaratory relief. Although not a model of clarity, the amended complaint essentially alleged that the Association was in doubt as to its rights under the Association documents and sought an injunction requiring Ms. Russell-Tutty to require her son to comply with the Association’s traffic regulations.

It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them.... “The question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.”

Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001) (quoting Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859, 861 (Fla. 5th DCA 1996)).

Declaratory judgment actions are governed by chapter 86, Florida Statutes (2004), which provides that a party claiming to be interested or in doubt as to its rights under certain documents, including those involved in this case, may seek a declaration of its rights in the trial court. The elements of such a proceeding are set forth in May v. Holley, 59 So.2d 636, 639 (Fla.1952):

[I]t should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court ... and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

“The test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all.” “X” Corp. v. “Y” Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993) (citing Platt v. Gen. Dev. Corp., 122 So.2d 48 (Fla. 2d DCA 1960)). In other words, once a cause of action for declaratory relief is sufficiently pleaded, the plaintiff is entitled to a judicial determination of the rights at issue. The prospect that the determination may not lead to the relief sought by the plaintiff will not thwart the action. “[A] motion to dismiss for failure to state a cause of action is not a substitute for a motion for summary judgment, and in ruling on such a motion, the trial court is confined to a consideration of the allegations found within the four corners of the complaint.” Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001).

The flaw in Ms. Russell-Tutty’s argument is apparent from the manner in which her answer brief addresses the issue on appeal; her brief contends that there was no showing that the trial court abused its discretion in denying the request for an injunction. As stated above, the issue before us is whether the amended complaint states a cause of action, not whether the trial court should have issued an injunction. The Association sought a judicial determination of whether certain deed restrictions could be interpreted to require Ms. Russell-Tutty to prevent her adult son from recklessly driving and speeding on the Association’s private roads in alleged contravention of the deed restrictions. The amended complaint sufficiently alleged the Association’s interest and doubt as to its rights under the Declaration. Because the amended complaint’s allegations stated a cause of action for a declaratory judgment, the trial court should not have dismissed it. The trial court went beyond the four corners of the amended complaint — it appears that the trial court was led to believe that Ms. Russell-Tutty’s son was no longer living with her, which might have mooted the amended complaint, or that there was unspecified case law that would not have supported the granting of the relief sought. The availability of a remedy, however, is reached after, not before, the determination of a plaintiffs rights.

At the hearing, the trial court focused on the merits of the Association’s case rather than the sufficiency of its amended complaint. “[A] complaint should not be dismissed for failure to state a cause of action ‘unless the movant can establish beyond any doubt that the claimant could prove no set of facts whatever in support of his claim.’ ” Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30, 35 (Fla. 4th DCA 2004) (quoting Morris v. Fla. Power & Light Co., 753 So.2d 153, 154 (Fla. 4th DCA 2000)). Ms. Russell-Tutty simply did not meet her burden to demonstrate that there was no theory, taking the facts as true in the amended complaint, that would support the Association’s request for relief.

We hold only that the amended complaint is sufficient to withstand an attack by a motion to dismiss for failure to state a cause of action. Because the amended complaint states a cause of action for in-junctive and declaratory relief, it was error to dismiss it. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

WALLACE, J., Concurs.

KELLY, J., Dissents without opinion.

      . This opinion does not address the claims against the son that were not dismissed and are not a subject of this appeal.