author: WARNER, J.

text:
    Vinton Alrick GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4893.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his convictions for burglary, grand theft, and resisting an officer without violence, claiming that the trial court erred in denying his motion to suppress. The trial court found that the officer had reasonable suspicion to stop appellant on suspicion of trespass. We agree and affirm.

Claridges Condominium is a private condominium complex. Residents can gain access to Claridges by using a security key. To get into Claridges as a visitor, one has to be “buzzed in” by the security person at the front door and then check in with security.

One evening, a resident saw a strange black male in the hallway of the sixth floor of the condominium complex. The man ran when seen by the resident. The resident immediately called to report the incident to the security person at the front door.

As it happened, two Palm Beach policemen in plain clothes were on the premises. The security person asked if they had been on the sixth floor, but they had not. The security person relayed the information from the resident about the man on the sixth floor. The security officer had not seen this other man enter the premises. One of the police officers, Officer Lee, went back to his vehicle to grab a set of handcuffs. Approximately two minutes later, another resident ran up to the officers and pointed out a black man walking away from a fire escape stairwell of the condominium. Lee did not see the black man emerge from the condominium. He only observed him walking away.

The officers approached the man, who was appellant Graham. Lee asked to speak with Graham, and Graham asked what this was all about. The officers explained to him that they received a complaint from the security woman that there was a suspicious black male on the sixth floor. Graham responded, “I was up on the sixth floor.” The officers asked Graham his reason for being on the sixth floor, and Graham explained that he had come to visit a friend named Stanley. When the officers asked Graham what unit number Stanley lived in and what was Stanley’s last name, Graham responded that he did not know.

The officers then asked Graham for his identification. Graham reached into his pockets, removed a wallet, and started fumbling through it, but then closed it and put it back into his pocket without producing any identification. Graham was nervous and his hands were shaking. Lee then asked Graham how he gained entry into the building. Graham stated that he walked in through the front doors, went to the elevator, and went up to the sixth floor. The officers asked Graham if he checked in with the doorperson, and Graham replied that he did not. Lee did not believe that Graham would have been able to enter the complex through the front doors without checking in, because within the same time frame he and Officer Krauel had been required to check in. Additionally, when Lee had entered the building in the past, there was always someone sitting at the entrance with whom he had to check in.

The officers explained to Graham that his story did not seem as if it was truthful. Lee again asked Graham to produce his identification so they could clarify his reason for being there and so that they could verify whether someone named Stanley lived on the sixth floor. At this point, Graham started getting agitated and he wanted to know why he was being harassed. Graham then started to walk away, but Krauel grabbed Graham by the arm and told him he was not free to go until they clarified what was going on. Graham snatched his arm away and started to run. The officers apprehended him, handcuffed him, and told him he was under arrest. When Graham was patted down, the officers discovered personal property belonging to a resident of the complex.

The officers stated that they arrested Graham for resisting without violence because he fled without giving proper identification. When the trial court denied the motion to suppress, it found that the officers had reasonable suspicion that Graham had trespassed in the condominium. On appeal, Graham contends that the trial court erred in denying his motion to suppress.

While Graham argues that he was illegally stopped, the state contends that the officers engaged in a consensual encounter during which they developed reasonable suspicion of criminal activity, namely trespass. Thus, their continued detention and subsequent search of Graham was lawful. We conclude that the initial encounter was consensual and that through that encounter, coupled with the other information the officers received, they developed reasonable suspicion of criminal activity sufficient to support the detention of Graham.

“A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, so long as those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by a de novo standard of review.” Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001). “Whether a particular set of facts can justify a finding that a police officer had a reasonable suspicion to conduct an investigative detention is a question of law.” Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004). The standard to apply to an officer’s actions in making a stop is whether the officers had a minimal objective basis of suspecting legal wrongdoing. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

A consensual encounter is one that involves minimal police contact. Popple v. State, 626 So.2d 185, 186 (Fla.1993). A consensual encounter does not involve constitutional safeguards because the citizen is free to leave. State v. Robinson, 740 So.2d 9, 12 (Fla. 1st DCA 1999). “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.” Popple, 626 So.2d at 186. The mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment detention. State v. Barnett, 572 So.2d 1033, 1034 (Fla. 2d DCA 1991). “An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop.” State v. Mitchell, 638 So.2d 1015, 1016 (Fla. 2d DCA 1994).

We agree with the state that the officer’s initial approach to Graham constituted a consensual encounter. The officers requested that Graham answer a few questions, which he did. When Graham refused to provide his identification and walked away, the officers prevented him from doing so. At that point the encounter elevated to a stop. The issue presented is whether the officers had reasonable suspicion to support the stop.

The trial court justified the stop by concluding that the officers reasonably suspected Graham to have committed a trespass. The crime of trespass of a structure is defined in section 810.08 as follows:

(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

The officers knew that Graham had been inside the condominium, and they reasonably believed that he lied about going in the front door and by the security person, as they themselves had to be admitted into the condominium by the security person. The security person had not authorized his entry into the building. Therefore, the officers could reasonably suspect that Graham had entered in some unauthorized and surreptitious way. Cf § 810.07(1), Fla. Stat. (in trial for burglary stealthy and unauthorized entry creates presumption of an intent to commit an offense therein). In addition, the fact that Graham did not appear to have a connection with this elderly community of residents, Graham’s lies about his method of entry, his fleeing from a resident 'who saw him on the sixth floor, his nervousness, and his subsequent attempt to flee from the officers all support the conclusion that Graham’s presence in the condominium was unauthorized. Because the officers reasonably-suspected Graham was criminally trespassing, they had grounds to insist on his identification to further their investigation and to apply for an arrest warrant. As such, the officers had a reasonable suspicion to support a stop of Graham. We thus affirm the trial court’s denial of the motion to suppress.

Graham also challenges his prison re-leasee reoffender sentence, because the state relied on an affidavit of his prison record and releases, which he claims is hearsay. We have already addressed such affidavits in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc), rev. granted, 956 So.2d 458 (Fla.2007), and we have concluded that these affidavits do not constitute inadmissible hearsay. We decline to revisit it here. This issue is presently under consideration by our supreme court on conflict jurisdiction.

Affirmed.

KLEIN and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roosevelt HOLMES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-38.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing Denied Sept. 28, 2007.
    Roosevelt Holmes, Jr., in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. Dobson v. State, 860 So.2d 1075 (Fla. 3d DCA 2003); Aguilar v. State, 807 So.2d 804 (Fla. 3d DCA 2002).


text:
    Azari GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1698.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing Denied Oct. 3, 2007.
    Azari Gonzalez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Morgan v. State, 911 So.2d 162 (Fla. 3d DCA2005).


author: SHAHOOD, C.J.

text:
    PROSPER DIAGNOSTIC CENTERS, INC., as Assignee of Giovan Mayonshi, Petitioner, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. 4D07-12.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.
    Richard B. Rosenthal of Law Offices of Richard B. Rosenthal, Miami, and Robert E. O’Connell of Robert E. O’Connell, P.A., Boca Raton, for petitioner.
    Jacqueline G. Emanuel of Riley, Knoerr & Emanuel, Fort Lauderdale, for respondent. . ,
   SHAHOOD, C.J.

Prosper Diagnostic Centers, Inc. (“Prosper”) petitions this court for a writ of certiorari to quash an order of the Seventeenth Judicial Circuit Court affirming, in its appellate capacity, the county court’s grant of final summary judgment in favor of Allstate Insurance Co. (“Allstate”). We hold that the circuit court applied the correct law to the case. We therefore deny the petition.

Allstate’s insured was referred to Prosper for an MRI following an automobile accident. Prosper had a “lease agreement” with a separate facility called the MRI Scan Center. Under the agreement, Prosper paid a monthly fee to the MRI Scan Center for twenty hours of use of the MRI equipment. Prosper paid the fee whether it actually used the full twenty hours in a month or not. The MRI Scan Center administered the technical component of the insured’s MRI, and Dr. Robert L. Kagan, M.D., P.A., provided the professional (interpretive) component.

Prosper sought compensation for the MRI from Allstate. Allstate denied payment on the grounds that the amount Prosper sought for the insured’s MRI was not compensable. Prosper brought suit seeking payment pursuant to an assignment of benefits executed in its favor by the insured. The county court granted final summary judgment in favor of Allstate on the basis that the undisputed facts showed Prosper rendered no professional or technical services at all pertaining to the MRI. The county court found that the “lease agreement” violated the prohibition against fee splitting and patient brokering of section 817.505(l)(b), Florida Statutes (2002).

Prosper appealed to the circuit court, adding a challenge to the constitutionality of section 817.505(l)(b) on grounds of vagueness and overbreadth. The circuit court affirmed. The circuit court also rejected Prosper⅛ constitutional challenge, citing State v. Rubio, 917 So.2d 383 (Fla. 5th DCA 2005). This certiorari proceeding followed.

“Certiorari is not a vehicle to allow a second appeal.” Dep’t of Hwy. Safety & Motor Vehicles v. Pitts, 815 So.2d 738, 742 (Fla. 1st DCA 2002). When a circuit court is acting in its appellate capacity, a district court reviews orders of that court to determine whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). The Florida Supreme Court has stated that a district court “should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (emphasis in original).

Prosper contends that section 817.505, Florida Statutes (2002), was held unconstitutional by the Florida Supreme Court in State v. Harden, 938 So.2d 480 (Fla.2006). In Harden, the supreme court held that Florida’s Medicaid anti-kickback statute, section 409.920(2)(e), Florida Statutes (2000), was preempted by the federal anti-kickback statute. 938 So.2d at 493. Prosper asserts that Harden held section 817.505(l)(b) unconstitutional by implication. In Rubio, the Fifth District contrasted section 817.505 from section 409.920 on the grounds that section 817.505 contained a “safe harbor” provision that provided it did not apply to payment practices not prohibited by federal law. See § 817.505(3)(a), Fla. Stat. (2002). Our supreme court recently adopted the Fifth District’s reasoning and upheld the constitutionality of the statute. State v. Rubio, No. SC06-157, — So.2d-, 2007 WL 2002586 (Fla. July 12, 2007). The prohibitions against fee splitting and patient brokering of section 817.505(l)(b) were correctly applied to the present case.

The county and circuit courts found this case factually indistinguishable from Medical Management Group of Orlando, Inc. v. Stale Farm Mutual Auto. Insurance Co., 811 So.2d 705 (Fla. 5th DCA 2002). That decision affirmed a trial court’s denial of compensation to Medical Management Group where it performed neither the professional nor the technical component of the MRI itself and contracted the MRI services out to another entity-pursuant to a “lease” arrangement. Med. Mgmt. Group, 811 So.2d at 706. The circuit court in this case noted that the Fifth District reached the opposite conclusion in Regional MRI of Orlando, Inc. v. Nationwide Mutual Fire Insurance Co., 884 So.2d 1102 (Fla. 5th DCA 2004). In that case, Regional MRI performed the technical component of the MRI scan itself and only sent the scan out to a radiologist for professional interpretation. Reg’l MRI, 884 So.2d at 1108.

The undisputed facts of the present case are squarely in line with Medical Management Group. We conclude that the circuit court applied the correct law to this case.

Denied.

WARNER and STEVENSON, JJ., concur.


text:
    CITY OF KISSIMMEE and Preferred Governmental Claim Solutions, Appellants, v. Gary SIMPSON, Appellee.
    No. 1D06-4296.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Rehearing Denied Sept. 27, 2007.
    Barbara A. Eagan and Michael Brous-sard, of Broussard, Cullen, Degailler & Eagan, P. A., Orlando, for Appellants. •
    Todd J. Sanders and Paul A. Kelley, of Bichler & Kelley, P. A., Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See City of Mary Esther v. McArtor, 902 So.2d 942, 944 (Fla. 1st DCA 2005) (where the claimant, a firefighter, suffered coronary artery disease and was actually incapacitated from performing his regular duties, the court reversed the JCC’s finding that the claimant was not entitled to benefits, holding that “the city’s continued payment of the claimant’s salary during his incapacity did not preclude a finding that the claimant was disabled”).

DAVIS and POLSTON, JJ., and LAWRENCE, JR., L. ARTHUR, Senior Judge, concur.


author: STRINGER, Judge.

text:
    Steven WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-387.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.
   STRINGER, Judge.

Steven Williams appeals the summary-denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and his motion for rehearing. We affirm the postcon-viction court’s summary denial as it relates to the review of Williams’ originally stated claim.

In his rule 3.800(a) motion, Williams claims that his concurrent thirty-year sentences for two second-degree felony convictions of aggravated battery exceed the statutory maximum. In denying the claim, the postconviction court stated that Williams was sentenced as a habitual violent felony offender (HVFO) pursuant to section 775.084(4)(b), Florida Statutes (1997). The postconviction court attached to its order a copy of the judgment and sentence which reflects that Williams was sentenced as an HVFO on both counts of aggravated battery pursuant to section 775.084(4)(b).

Subsequently, Williams filed a motion for rehearing. While addressing the denial of the claim presented in his rule 3.800(a) motion, Williams also appeared to raise a new claim that the trial court did not orally pronounce the imposition of an HVFO sentence. The postconviction court denied the motion without specifically addressing this new claim. Consequently, we affirm the postconviction court’s orders without prejudice to any right Williams may have to refile a facially sufficient rule 3.800(a) motion raising a claim that the trial court did not orally pronounce the imposition of an HVFO sentence. Such motion will not be considered successive.

Affirmed.

DAVIS and WALLACE, JJ., concur.


author: FULMER, Judge.

text:
    Billy Dee LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3188.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Lewis.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Billy Dee Lewis challenges the revocation of his drug offender probation, raising three issues. Although we agree with his argument challenging the sufficiency of the evidence for the new law violation, we affirm because the revocation was supported by the evidence that Lewis moved from his approved address without permission.

Lewis first argues that the trial court departed from its role as a neutral magistrate when it questioned the State’s witnesses at the hearing. We reject this argument because the transcript shows that the trial court asked some clarifying questions of witnesses, but the court did not take over the prosecution’s role or otherwise abandon its role as a neutral magistrate through its questioning.

Lewis next asserts that the evidence was insufficient to support a violation based on Condition 3, requiring him to obtain permission before moving from his approved address, because the evidence was solely hearsay. We reject this argument because the evidence was not solely hearsay and it clearly showed that Lewis absconded from the PAR program in violation of his probation. The director of the program, who testified, had personal knowledge that Lewis was not at the program after a certain date.

Lewis finally asserts that the evidence was insufficient to support a violation based on Condition 5 by committing the new offense of burglary. We agree that the evidence was insufficient to show that Lewis committed a burglary. At most, the evidence showed that Lewis ran from the police and hid in a house that belonged to someone else. The occupants of the house (the owner’s children) would not give police permission to enter. The owner later gave the police permission to enter. There was no evidence that Lewis had entered the house surreptitiously or unlawfully or that he intended to commit any offense therein.

Although the evidence does not support the Condition 5 violation, we nonetheless affirm because the Condition 3 violation was substantial, and the record indicates that the trial court would have revoked the probation based on the Condition 3 violation alone. See Pollard v. State, 930 So.2d 854 (Fla. 2d DCA 2006). We remand for the trial court to strike the finding concerning the violation of Condition 5 and enter a corrected revocation order.

Affirmed and remanded with instructions.

SALCINES, J., and GALLEN, THOMAS M., Associate Seniqr Judge, concur.


text:
    Franky ST. JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1187.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.
    Franky St. Joseph, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Bates v. State, 887 So.2d 1214 (Fla.2004).


text:
    Corey WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1256.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.
    Corey Williams, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

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

On November 12, 1999, appellant pled guilty to violation of probation and was sentenced to nine and one-half years in state prison with credit for time served from his arrest for violation of probation until appellant’s plea. Appellant filed this Rule 3.800(a) motion, alleging entitlement to credit for three years he originally served prior to being placed on probation. The trial court denied relief without attaching records which would conclusively show that defendant waived entitlement to this time. We therefore must reverse and remand for attachment of records conclusively showing that the appellant is not entitled to any relief or an evidentiary hearing. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007).

Reversed and remanded for further proceedings.


text:
    Quanell HOLTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1390.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.
    Quanell Holton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, 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 shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (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 relief.

Reversed and remanded for further proceedings.


author: KLEIN, J.

text:
    PURITAN BUDGET PLAN, INC., Gibraltar Budget Plan, Inc., Freedom Premium Finance Corporation, Perry & Co., MHD Premium Finance Company, First Grampian Finance Corporation, Delta Premium Finance Company, Inc., and United Premium Budget Plan, Inc., Appellants, v. AMSTAR INSURANCE COMPANY, Appellee.
    No. 4D06-3170.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.

      Daniel Martinez of Lidsky, Vaccaro & Montes, Attorneys at Law, P.A., Hialeah, for appellants.
    Carlos D. Cabrera and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   KLEIN, J.

This is an appeal from an order dismissing a class action complaint for failure to state a cause of action. The plaintiffs are premium finance companies for private passenger automobile insurance policies issued by the defendant insurer. When these policies are cancelled, the insurer is required by statute to refund unearned premiums within thirty days. The issue is whether the insurer is liable for interest where the premiums are not refunded in thirty days. We hold that interest is recoverable and reverse.

The trial court rested its decision on the difference between the statute involving refunds of unearned premiums to insureds where there is no premium financing, and a different statute pertaining to refunds where there is premium financing. Where there is no financing, the applicable statute is section 627.7283, Florida Statutes, which provides in subsections (1) and (3):

(1) If the insured cancels a policy of motor vehicle insurance, the insurer must mail the unearned portion of any premium paid within 30 days after the effective date of the policy cancellation or receipt of notice or request for cancellation, whichever is later. This requirement applies to a cancellation initiated by an insured for any reason.
(3) If the unearned premium is not mailed within the applicable period, the insurer must pay to the insured 8 percent interest on the amount due. If the unearned premium is not mailed within 45 days after the applicable period, the insured may bring an action against the insurer pursuant to s. 624.155.

The statute addressing cancellation and refunds where premium financing is involved is section 627.848, and it provides in subsection (l)(e):

(e) Whenever a financed insurance contract is canceled, the insurer shall, within 30 days of the cancellation date, return the unpaid balance due under the finance contract, up to the gross amount available upon the cancellation of the policy, to the premium finance company and any remaining unearned premium to the agent or the insured, or both, for the benefit of the insured or insureds. The insurer shall, within 30 days of the cancellation date, notify the insured and the agent of the amount of unearned premium returned to the premium finance company and the amount of unearned commission held by the agent. The premium finance company shall, within 15 days after the account has been overpaid, either refund to the insured for the insured’s benefit any refund due on his or her account or, if the refund is sent or credited to the agent, return or credit to the agent the amount of the overpayment and notify the insured of the refunded amount. Within 15 days of receipt of notification from the premium finance company, the agent shall return such amount including any unearned commission to the insured or with the written approval of the insured apply such amount to the purchase of other insurance products regulated by the office. The commission may adopt rules necessary to implement the provisions of this subsection.

The trial court reasoned that, because section 627.848 does not specifically provide for interest, while section 627.7283 does, the legislature did not intend that interest be due on late refunds to premium financers. We disagree for two reasons. First, plaintiffs have assignments from the insureds of their rights to receive the unearned premiums after policies are can-celled. These assignments give plaintiffs the same rights as the insureds to recover interest under section 627.7283(3).

Second, plaintiffs are entitled to interest under the common law. Defendant insurer has provided us with no reason why, in the absence of an assignment, plaintiffs would not be entitled to recover interest under the common law general principle that a person to whom a debt is owed is entitled to interest at the lawful rate. Chelsea Title & Guar. Co. v. Turner, 389 So.2d 691 (Fla. 4th DCA 1980). In addition, if interest were not due, the thirty day grace period in section 627.848(e) would have no teeth. If the legislature had intended to abrogate the common law right to interest under those circumstances, it could easily have done so.

We accordingly hold that the complaint states a cause of action based on the assignments, which give the premium financ-ers the right to recover interest under section 627.7283, and also based on the common law right to recover interest, where the premium has not been refunded within the statutory grace period.

Reversed.

HAZOURI, J. and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Andrew WINNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1610.
    District Court of Appeal of Florida, Third District.
    Sept. 5, 2007.
    Rehearing Denied Oct. 3, 2007.

      Andrew Winningham, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Wilkinson v. State, 954 So.2d 96 (Fla. 5th DCA 2007).


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. Lydia Pearl MACKEY a/k/a Sabrina Prince, Appellee.
    No. 2D06-3985.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the sentence imposed on Lydia Pearl Mackey after she entered an open plea of guilty to delivery of cocaine within 1000 feet of- a school. Ms. Mackey also pleaded guilty to possession of cocaine and possession of hydrocodone. The trial court sentenced Ms. Mackey to three concurrent terms of three years of probation. On the delivery of cocaine within 1000 feet of a school charge, the State argues that the trial court was required to sentence Ms. Mackey to a mandatory minimum term of at least three years in prison, pursuant to section 893.13(l)(c)(l), Florida Statutes (2004). We agree and therefore reverse that sentence.

Under section 893.13(l)(c)(l), a defendant who commits the offense of delivery of cocaine within 1000 feet of a school “must be sentenced to a minimum term of imprisonment of 3 calendar years.” See State v. Crews, 884 So.2d 1139, 1140 (Fla. 2d DCA 2004) (reversing an eighteen-month prison sentence for delivery of cocaine within 1000 feet of a school because section 893.13(l)(c)(l) requires a minimum term of three years in prison and no applicable statute authorizes the court to suspend or defer that sentence). Therefore, the trial court was required to sentence Ms. Mackey to at least three years in prison on the delivery charge. Ms. Mack-ey commendably concedes the error but requests the opportunity to withdraw her plea before being resentenced.

Accordingly, we reverse Ms. Mackey’s sentence for delivery of cocaine within 1000 feet of a school. On remand, the trial court shall give Ms. Mackey the opportunity to file a motion to withdraw her plea. If she chooses not to file such a motion or if she fails to succeed on such a motion, the trial court shall resentence Ms. Mackey for this offense to a prison term consistent with the mandatory minimum provision of section 893.13(l)(c)(l).

Reversed and remanded.

STRINGER and DAVIS, JJ., Concur.


author: DAVIS, Judge. WALLACE, Judge,

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, v. Normandy PICCOLO, Respondent.
    No. 2D06-4685.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2007.

      Cheryl J. Lister and Paul M. Quin of Saxon, Gilmore, Carraway, Gibbons, Lash & Wilcox, P.A., Tampa, for Petitioner.
    R. Wayne Miller, Temple Terrace, for Respondent.
    Jeffrey R. Fuller of Brasfield, Fuller, Freeman, & O’Hern, St. Petersburg, for Amicus Curiae Group Protecting the Integrity of Psychological Examinations.
   DAVIS, Judge.

The Florida Department of Transportation (DOT), the defendant below, petitions for certiorari review of the trial court’s interlocutory order denying its motion to modify the trial court’s protective order detailing the conditions of a compulsory medical examination (CME) of Normandy Piccolo, the plaintiff below. We deny the petition.

After being involved in an automobile accident, Piccolo filed a negligence action against the other party to the accident and an action for negligent road design against DOT. In her complaint, Piccolo sought damages for mental anguish, bodily injury, loss of capacity for enjoyment of life, and related expenses and losses. DOT filed a request for a neuropsychological examination of Piccolo to determine any psychological and emotional difficulties caused by the accident. Piccolo agreed to the request, and an initial hearing was held to determine the conditions under which the examination would take place. Following that hearing, the trial court granted the request and issued a protective order that specified the terms of the examination. Included in the protective order was the provision that a videotape would be made of the examination and delivered to counsel for Piccolo. The order specifically limited the use of the videotape to the Piccolo case and required that at the close of litigation, including any appeal, any copies filed with the court would be returned to counsel for DOT, who in turn could give the copies to the neuropsychologist who performs the examination. However, the order also provided that Piccolo’s counsel would maintain a copy of the videotape in his files upon the completion of the litigation. It is this provision that DOT sought to modify.

DOT requested that the trial court require Piccolo’s counsel to return to the examiner the videotape or any copy in his possession upon the completion of the litigation. At the hearing on the motion, the neuropsychologist that DOT secured to perform the examination of Piccolo, Dr. Glenn Larrabee, testified that he would not perform the examination unless the court required that the tape and all copies be returned to him at the close of litigation. Dr. Larrabee explained that the nature of a neuropsychological examination is such that it is essential that an examinee not be provided the questions to be asked and the protocol to be followed prior to the examination. He opined that should a copy of an examination remain with an attorney after the completion of litigation, it could be used to prepare other clients to take such examinations, thereby compromising the results of future examinations. According to Dr. Larrabee, because the questions used in a standard neuropsycho-logical examination have required extensive effort to develop, a proprietary interest exists that must be protected. He also referenced the code of ethics adopted by his professional association that indicates that such materials should not be given to those not certified as neuropsychologists and that any such videotapes should be returned to the examiner.

Additionally, DOT presented affidavits that indicated that other neuropsycholo-gists in Central Florida were of the same opinion and would not perform the CME under the conditions of the protective order. Accordingly, DOT argued that denying its motion to modify the protective order was tantamount to denying it the opportunity to defend the case.

The trial court denied the requested modification, finding that the protective order’s confidentiality limitations with respect to the attorney’s use of the videotape during and after litigation were sufficient to meet Dr. Larrabee’s concerns. It is this order denying the requested modification that DOT now challenges.

For this court to grant certiorari and quash a trial court’s order, the petitioner must demonstrate that (1) the order departs from the essential requirements of law (2) resulting in a material injury (3) that cannot be remedied on direct appeal. McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923 (Fla. 2d DCA 2004). Additionally, the type of departure that will justify the issuance of a writ of certiorari is more than simple legal error. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (“A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.”). Because we conclude that DOT has failed to establish that the trial court’s order departs from the essential requirements of law resulting in a miscarriage of justice, we deny the petition.

This issue is the latest in a series of issues that has evolved from the forensic use of neuropsychologists. Due to the kinds of concerns expressed by Dr. Larra-bee at the hearing before the trial court, neuropsychologists initially refused to perform such exams if a third party was present or if the exam was videotaped. See Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997); Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4th DCA 1998). As the result of litigation interpreting and applying Florida Rule of Civil Procedure 1.360(a)(3), which gives the trial court the discretion to establish the rules for such examinations, it has become well established in this district that such exams may be videotaped, and that third parties may be present. Broyles, 695 So.2d 832. However, the issue of who may maintain a copy of the videotape after the completion of the litigation has not been, to our knowledge, previously litigated. Thus there is no clearly established law on this matter.

Although we cannot see why it would be essential for Piccolo’s trial counsel to maintain a copy of such a tape in his files until the destruction of the files, we cannot conclude that the trial court departed from an established principle of law by allowing him to do so. Rule 1.360(a)(3) gives the trial court the discretion to determine the conditions of the examination. The trial court considered the professional concerns of DOT’s expert and addressed them by placing specific limits on the use of the tape by counsel. To find that this was a departure from the essential requirements of law would require us to conclude that such limits are ineffective and that trial counsel would improperly use the videotape. We decline the invitation to reach such a conclusion. The trial court’s protective order is a reasonable attempt to address the concerns raised by Dr. Larrabee.

DOT further argues that the trial court’s order is a denial of due process since the record indicates that as a result DOT may not be able to obtain an examination by a neuropsychologist. Although DOT suggested that because Piccolo had available the testimony of a neuropsychol-ogist, it also needed the testimony of a neuropsychologist to respond to Piccolo’s expert, the record shows that such was not the case. The expert that Piccolo'had contacted was a psychiatrist, not a neu-ropsychologist. The record does not disclose that psychiatrists, neurologists, and psychologists share the same types of concerns that Dr. Larrabee testified neu-ropsychologists have with regard to the administration of examinations. Accordingly, DOT is not precluded from seeking the assistance of other qualified experts for the presentation of its case.

Because DOT has 'failed to demonstrate that the trial court’s ordér departs from the essential requirements of law, we deny the petition.

Denied.

WHATLEY, J., Concurs.

WALLACE, J., Concurs specially with opinion.

WALLACE, Judge,

Specially concurring.

In my view, the better course would have been for the trial court to have granted DOT’s request to require Piccolo’s counsel to return the videotape or any copy in his possession to the examining neuropsychologist upon the completion of the litigation. Piccolo’s attorney did not establish that he had a genuine need to retain a copy of the videotape once the case was closed. On the other hand, DOT did show that the neuropsychologist had well-founded reasons for insisting on the return of the videotape after the litigation had been concluded. See generally Paul M. Kaufmann, Protecting the Objectivity, Fairness, and Integrity of Neuropsycho-logical Evaluations in Litigation: A Privilege Second to None?, 26 J. Legal Med. 95 (2005); Ñola Nouryan <& Martha S. Weisel, When Ethics Collide: Psychologists, Attorneys and Disclosure, 36 Cal. W.L.Rev. 125 (1999). It appears from our record that the denial of DOT’s request will make it impossible for the agency to obtain the services of a clinical neuropsychologist to examine Piccolo. I disagree with the majority’s suggestion that this is unimportant because DOT can arrange for Piccolo to be examined by a professional from a different discipline.

Many years ago, the United States Supreme Court recognized the psychological profession’s legitimate interest in preserving the security of test materials. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 313-15, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979). The trial court’s order fails to strike a proper balance between this legitimate interest and Piccolo’s interest in effective legal representation. Nevertheless, as the majority correctly concludes, DOT cannot demonstrate that the trial court’s order departs from the essential requirements of law. For this reason, I concur in the denial of DOT’s petition.


author: SHEPHERD, J.

text:
    Justo Carlos PEREZ, et al., Appellants, v. LA DOVE, INC., Appellee.
    No. 3D05-2597.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Culmo & Culmo and Elisabeth M. Cul-mo; Silva & Silva, for appellants.
    Higer Lichter & Givner and Michael J. Higer, Miami, for appellee.
    Before SHEPHERD, J., and SCHWARTZ and FLETCHER, Senior Judges.
   SHEPHERD, J.

Justo Carlos Perez, his wife, and their two children appeal an order dismissing their complaint for spoliation of evidence filed against Justo’s employer, La Dove, Inc., for La Dove’s failure to preserve a forklift, which traveled off the end of a La Dove loading dock with Justo aboard, crushing and rendering him a paraplegic. Barred from suing La Dove by Florida’s workers’ compensation laws, the Perezes pursued and settled a negligent repair action against R & R Industrial Trucks, Inc., the company responsible for the routine service and maintenance on the forklift. The basis of the complaint against R & R Industrial was that a malfunction in the vehicle’s braking or transmission system caused the accident.

The gravamen of the Perezes’ complaint in this case is that their recovery against R & R was substantially impaired by La Dove’s failure to preserve the forklift for Perez’s benefit. According to the complaint, La Dove Vice President, Michael Bass, the company representative present the day of the accident, was “[admittedly] aware that a lawsuit could extend from the accident,” yet called R & R to take possession of the forklift for inspection, repair, and refurbishment immediately after police cleared the scene. At no time during the two-week repair period did Perez or any agent ask La Dove to preserve the forklift. Given the severity of the accident, Perez probably had limited ability to make such a request.

In this case we again probe an area of the law we never cease to probe — employer immunity under Florida Workers’ Compensation Law, sections 440.01-50, Florida Statutes (2001). Section 440.11 of the Florida Statutes (2001), entitled “Exclusiveness of liability,” provides general immunity from litigation resulting from- on-the-job injuries for an employer who secures the required compensation for his employees. However, section 440.01 also contains several well understood, express exceptions to employer immunity, including situations where the employer “fails to secure payment as required by this chapter,” § 440.11(l)(a), Fla. Stat. (2001); “[w]hen an employer commits an intentional tort that causes the injury or death of the employee,” § 440.11(l)(b), Fla. Stat. (2001); or where managerial employees commit “violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment ....”§ 440.11(l)(b).

Twelve years ago in General Cinema Beverages of Miami, Inc. v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995), we found for the first time in a different section of the Florida Workers’ Compensation Law, section 440.39(7), Florida Statutes (1989), an additional, implied exception to employer immunity to allow an action by a covered employee against his employer for negligent destruction of evidence where his recovery against a third-party tortfea-sor is alleged to have been substantially impaired by the employer’s failure to preserve necessary evidence for use in that action — “at least where ... there has been a timely request for preservation.” Id. at 279. In General Cinema, the employee alleged that, despite being requested to do so, his employer failed to preserve a new tire that allegedly blew out on a truck operated by the employee, making it impossible for the employee to sue the manufacturer for injuries suffered in the accident.

Four years later, in Builder’s Square v. Shaw, 755 So.2d 721, 724 (Fla. 4th DCA 1999), the Fourth District Court of Appeal extended General Cinema to cases in which a request for preservation has not been made, but “when the circumstances axe such that [the employer] should have known that certain evidence could conceivably be critical to an employee’s claim.” In Builder’s Square, the employee was injured as a result of a fall from a ladder. He did not request the ladder be retained. Builder’s Square then disposed of it, which, according to the employee, forced him to accept an inadequate $250,000 settlement from the ladder manufacturer. Approving a jury verdict for spoliation of evidence against Builder’s Square, the court opined, “Before it proceeded to dispose of any of [the ladders,] the statutory duty of cooperation with its injured employee [under section 440.89(7) of the Florida Statutes] should certainly have suggested that it consult with the employee.” Id. As the Perezes urge in this case, the Fourth District Court of Appeal apparently imputed to the employer a commonly perceived truth of the times that litigation arising out of the accident was “foreseeable,” if not inevitable, and hence the employer had a duty under section 440.39(7).

Although an early leader in formally recognizing and articulating the existence of a cause of action for “negligent destruction” or “spoliation” of evidence, see Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. 3d DCA 1990), we decline the Perezes’ invitation to further extend this implied exception to employer immunity. We reach this conclusion for three reasons.

First, the purpose of a spoliation claim generally is not served by permitting suit where no notice is given. The genesis of the cause of action was the need to deter the recalcitrant defendant who attempts to unfairly deprive a plaintiff and court access to damning evidence. See Humana Worker’s Comp. v. Home Emergency Servs., 842 So.2d 778, 781 (Fla.2003)(“Negligent spoliation of evidence is a tort claim based on a defendant’s breach of a duty to preserve evidence.”); Lincoln Ins. Co. v. Home Emergency Servs., 812 So.2d 433, 434 (Fla. 3d DCA 2001)(recognizing spoliation as an independent cause of action for negligence “where a party is unable to prove [its] case due to the loss or destruction of key evidence”). In fact, barring the rare case where the employer has engaged in intentional conduct, it is neither in the legal nor financial interest of the employer to dispose of evidence to protect a third party such as R & R to the detriment of its employee. To the contrary, section 440.39(7) contemplates the employer and employee cooperating to seek their respective entitlements from third parties. See § 440.39(3), Fla. Stat. (2001)(treating, inter alia, combined subrogation and third-party actions by employees and employers). The deterrence goal that animates a spoliation claim is not present in these cases.

Second, Perez already received full compensation from the employer. According to our Florida Supreme Court, which many times has considered Florida’s Workers’ Compensation Law, including its constitutionality, “Workmen’s compensation abolished the right to sue one’s employer in tort for a job-related injury, but provided adequate, sufficient, and even preferable safeguards for an employee who is injured on the job, thus satisfying one of the exceptions to the rule against abolition of the right to redress for an injury [found in Florida’s right to Access to Courts, Art. I, section 21, Florida Constitution].” Kluger v. White, 281 So.2d 1, 4 (Fla.1973). We are wary of sanctioning or extending implied end runs around the legislatively authorized exceptions to employer immunity found in section 440.11 of the Florida Statutes. The Florida legislature has shown itself fully up to the task of managing the exclusivity provision of this state’s Workers’ Compensation Law.

Finally, the Perezes point out that limiting spoliation claims to those who have requested the evidence be preserved creates an inequity for plaintiffs — like Justo here — who are hampered in their ability to request preservation. This argument misses the point. The essential reason for a spoliation claim is its deterrent effect on miscreant defendants. This purpose is served only when an actual duty owed by a defendant to a plaintiff has been willfully or recklessly disregarded. See Grand Hall Enter. Co. v. Mackoul, 780 So.2d 275, 276 (Fla. 3d DCA 2001)(finding no basis to award sanctions based on a spoliation allegation where the defendant had not intentionally destroyed the evidence and was not under a court order to preserve the evidence); Pennsylvania Lumberman’s Mut. Ins. Co. v. Fla. Power & Light Co., 724 So.2d 629, 630 (Fla. 3d DCA 1998)(holding that no spoliation claim existed where the defendant “was not under any statutory or contractual duty to maintain or preserve the transformer in question” and no evidence showed the defendant received actual notice before destroying the transformer). That is not the case here. In fact, permitting the pursuit of this action by the Perezes would be little more than authorizing the pursuit of a triple recovery.

Affirmed.

      . Section .440.39(7) states:
      The employee, employer, and carrier have a duty to cooperate with each other in investigating and prosecuting claims and potential claims against third-party tortfeasors by producing nonprivileged documents and allowing inspection of premises, but only to the extent necessary for such purpose. Such documents and the results of such inspections are confidential and exempt from the provisions of s. 119.07(1), and shall not be used or disclosed for any other purpose.
      (Emphasis added.)
      In General Cinema, we rejected the employer’s argument that read textually and in context, the statute did not regulate the relationships between employee and employer, but rather simply required cooperation inter se when jointly pursuing recovery against a third party, and further that it did not proscribe the alleged offending conduct by the employer at issue in the case. General Cinema, 689 So.2d at 279 ("The employer’s reading of the statute, while permissible, is too narrow.”).

      . The concept of spoliation derives from the Latin phrase "contra spolatorem omnia prae-sumuntur,” meaning "all things presumed against the destroyer.” Maria A. Losavio, Synthesis of Louisiana Law on Spoliation of Evidence-Compared to the Rest of the Country, Did We Handle it Correctly?, 58 La. L.Rev. 837, 848 (1998).


author: MAY, J.

text:
    SUNEX INTERNATIONAL INC., Appellant, v. Edward COLSON d/b/a Blue Water Developers a/k/a Blue Water Builders, Appellee.
    No. 4D06-3692.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Rehearing Denied Oct. 17, 2007.

      Howard J. Hochman, Miami, for appellant.
    Jennifer M. Spiegel Colson, Lighthouse Point, for appellee.
   MAY, J.

The difference between a sham and a mistake is at issue in this appeal. The seller of building materials appeals an order striking its amended complaint as a sham pleading. It argues the trial court erred in confusing its accounting mistakes in calculating the amounts owed as a sham. We agree and reverse.

On August 30, 2004, the seller sued the buyer for unpaid invoices, plus service charges in the amount of $21,490.37. It attached copies of nineteen unpaid invoices, and alleged the buyer had not paid for roofing materials it purchased between February and May 2003.

On November 18, 2004, the buyer answered the complaint and asserted eight affirmative defenses. In October 2005, Su-nex filed its second Notice of Trial. In December 2005, the trial court referred the ease to non-binding arbitration.

After the buyer’s deposition, seller’s counsel informed the buyer that after looking over the invoices, the only monies that were outstanding related to invoice # 652 for roofing materials in the amount of $21,874.19. That invoice had not been attached to the original complaint. In his deposition, however, the seller’s president testified that all of the invoices attached to the original complaint had been paid except # 1350 in the amount of $1492.

Arbitration was held in February 2006, and on May 2, 2006, the arbitrator filed the non-binding arbitration award; the buyer moved to compel the award. On May 10th, the seller moved for trial. The seller subsequently amended its complaint. In addition to other exhibits, the seller attached the same statement of account that it had attached to the original complaint. The buyer then filed a Verified Motion to Strike Plaintiffs Amended Complaint as a Sham pursuant to Florida Rule of Civil Procedure 1.150.

The seller’s president filed an affidavit making the following attestations. After his deposition, the seller conducted an audit on the account. While the roofing materials had been paid for, the buyer’s job superintendent had withheld from other purchases an amount equal to that of the roofing material, thereby leaving the other invoices unpaid.

The buyer responded that all the invoices sued on in the amended complaint were the same invoices sued upon in the original complaint and that the seller’s president had previously testified that all but one of those invoices had been paid.

The seller replied that the confusion had arisen from the company’s internal accounting procedures that called for funds received to be first applied to outstanding invoices. Because the outstanding amount owed was similar to the roofing materials invoice, the seller believed that it was the roofing materials invoice that had not been paid.

The trial court questioned why the original or amended complaints should not be considered sham pleadings as they failed to accurately reflect the invoices owed. It then granted the motion to strike. The trial court directed any claims covered by the original complaint and its attachments to be concluded, but allowed the seller to file a new complaint for any other invoices or debts unpaid. From this order, the seller appealed.

The seller acknowledges the differences among the deposition of the seller’s president, his affidavit, and the amended complaint. Nevertheless, the seller argues the amended complaint fails to show the requisite fraud or intentional falsity to justify the trial court’s striking of it. The buyer responds that the invoices underlying the complaints were paid and therefore the allegations of non-payment constituted a fraud upon the court.

A trial court must resolve all doubts in favor of a pleading when ruling on a motion to strike. Destiny Constr. Co. v. Martin K. Eby Constr., 662 So.2d 388, 390 (Fla. 5th DCA 1995) (citing Meadows v. Edwards, 82 So.2d 733, 735 (Fla.1955)). “A hearing on a motion to strike pleadings, or on a motion for summary judgment is not to try the issues, but to determine whether there are any genuine issues to be tried.” Meadows, 82 So.2d at 735 (citing Johnson v. Studstill, 71 So.2d 251, 252 (Fla.1954) (en banc)). “The fact that a court may perceive little prospect in the success of an alleged sham proceeding is not a sufficient ground to grant a motion to strike the pleading.” Cromer v. Mullally, 861 So.2d 523, 525 (Fla. 3d DCA 2003).

Here, there is no doubt the seller had some serious accounting issues within its company. There is also no doubt that the seller’s president was confused about which invoice(s) had not been paid and who actually owed the money, but the amount owed never really varied. Rule 1.150 is not the proper procedural mechanism for disposing of those conflicts in the seller’s ease.

The striking of a complaint is only warranted when the pleading “is inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made.” Destiny Constr. Co., 662 So.2d at 390 (citing Menke v. Southland Specialties Corp., 637 So.2d 285, 286 (Fla. 2d DCA 1994)). For this reason, we reverse and remand the case for reinstatement of the amended complaint and for further proceedings consistent with this opinion.

Reversed and Remanded.

GUNTHER and FARMER, JJ., concur.

      . For ease of reference the defendants, Colson and Blue Water Developers and/or Builders are referred to collectively as the buyer even though the identity of the proper defendant was at issue. Each invoice indicated that the buyer was Blue Water Builders and the order had been placed by Tim Haffner.

      . Florida Rule of Civil Procedure 1.150(a) provides:
      Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.


text:
    The CLARK CONSTRUCTION GROUP, INC., a Florida corporation, Appellant, v. TALMAC, INC., a Florida corporation, Appellee.
    No. 3D06-1250.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Duane Morris LLP, Boca Raton, and Jeffrey L. Hamera and Charles B. Lewis; Carlton Field and Alina Alonso, Miami, for appellant.
    Robinson & Associates and Raymond L. Robinson and Douglas C. Hiller, Coral Gables, for appellee.
    Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from a final judgment entered in favor of Talmac, Inc., following a bench trial. We find no error of law and conclude that there was competent substantial evidence to support the judgment. See Pearce & Pearce, Inc. v. Kroh Bros. Dev. Co., 474 So.2d 369 (Fla. 1st DCA 1985). It is not our function to re-weigh the evidence and the credibility of the witnesses and substitute our judgment for that of the trial court. G & G Fashion Design, Inc. v. Garcia, 870 So.2d 870, 873 (Fla. 3d DCA 2004).

Affirmed.


author: PER CURIAM. '

text:
    James PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2476.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      James Prince, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM. '

This is an appeal by James Prince from an order denying a motion filed under Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse and remand in part.

Appellant filed a motion for postconviction relief alleging two grounds for relief. First, he stated that his plea was involuntary. Second, he contended that his sentence was violative of double jeopardy. Both grounds were summarily denied by the lower court. At issue here is appellant’s claim that his plea was involuntary.

In his motion to the court below, Prince stated that he believed he was to receive the minimum guideline sentence of nineteen months in exchange for a plea of guilty. He apparently believed he entered into a negotiated plea. Prince also claimed that his attorney did not inform him that he was subject to a minimum mandatory sentence greater than nineteen months. Prince further averred that had he known of any minimum mandatory sentence, he would have rejected the plea agreement.

The Florida Supreme Court has stated that “misrepresentations by counsel as to the length of a sentence ... can be the basis for postconviction relief in the form of leave to withdraw a guilty plea.” State v. Leroux, 689 So.2d 235, 236 (Fla.1996). Thus, Prince’s allegations in his first ground for relief raised a cognizable claim.

In postconviction matters, courts must accept as true factual allegations not refuted by the record. As the supreme court has stated, “To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Kimbrough v. State, 886 So.2d 965, 981 (Fla.2004) (quoting Peede v. State, 748 So.2d 253, 257 (Fla.1999)); see also Fla. R.Crim. P. 3.850(d).

In its order denying Prince’s motion, the trial court below provided no substantive explanation as to why it summarily denied Prince’s claim nor did it attach records refuting his claim.

Accordingly, we reverse the summary denial of ground one for either an eviden-tiary hearing or the attachment of portions of the record that conclusively refute this ground for relief. We affirm without discussion the summary denial as to ground two of the motion for postconviction relief.

WARNER, POLEN and FARMER, JJ., concur.

      . The attached "Court Event Form” does not conclusively refute Prince's claim that he was not informed of the possible length of his sentence.


text:
    Onterrious TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1779.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

The appellant challenges his conviction for aggravated fleeing and eluding and resisting without violence. Before trial, the court ruled that the contents of two BOLOs involving an armed kidnapping could come into evidence to show its effect on the police officers who encountered appellant based upon the BOLOs. Because the contents of the BOLOs were inadmissible and prejudicial, we reverse.

Fort Lauderdale police officers received two BOLO reports involving an armed kidnapping in which a white Dodge Intrepid was used. The suspect was reported as possessing a large caliber firearm. One officer spotted a vehicle matching the description, which included a tag number, parked in front of a pay phone. The officer called for backup, and another officer and his K-9 unit arrived. They observed appellant at the pay phone making a call. Drawing their weapons, they ordered appellant to the ground or to place his hands in the air, as each officer apparently shouted different commands. Appellant appeared to ignore them and went to the vehicle, rummaging around in the front seat.

Fearing that appellant was reaching for a firearm, the officers ordered him out of the vehicle. Appellant went back to the pay phone where he had left his keys. Because he was not obeying their commands, the officers let the dog loose, at which point appellant ran to the vehicle, closed the door, and started to drive off. One of the officers reached through the window and hit appellant several times. As appellant backed up, the officers had to jump out of the way. They each began firing at the vehicle.

According to the officers appellant drove away at a high speed and they pursued. Appellant testified that he was not speed: ing and he did not see the officers pursuing him. He hit a median and crashed the vehicle because his eyes were burning with pepper spray that one of the officers had used and because of the broken glass from the shot out windows. When the officers arrived, he was not in the car. They searched for him and later cornered him in the backyard of a residence. Eventually, with the use of the dog, they were able to detain him.

The state - charged appellant with two counts of aggravated assault on a law enforcement officer, one count of aggravated fleeing or eluding, and one count of resisting without violence. Prior to trial, the state moved in limine to admit the contents of the BOLOs to show their effect on the conduct of the officers in being as aggressive as they were with the appellant. The trial court granted the motion, because the court concluded that it was necessary to show the officers’ state of mind. The court allowed the state to discuss the contents of the BOLOs in opening statement. While it offered to give a “curative instruction” explaining that the jury should not consider the contents for the truth of implicating appellant in an armed kidnapping, it would not give such an instruction until someone testified about the BOLOs.

In opening statement, with respect to the BOLOs the prosecutor asked the jury:

[T]o consider the contents of the call to consider what was going on in the police officers’ minds when they heard the call.... I’m not asking you to consider the calls as a conduct Mr. Tillman necessarily committed. You will find that conduct was uncharged. I ask you to consider it to the effect it had of the police officers hearing the information over the police radio.

As expected, the officers testified to the contents of the BOLOs and that appellant and his vehicle matched the description of the person suspected of the-armed kidnapping. Thus, the officers approached appellant with guns drawn, fearing violence from appellant whom they suspected had a large caliber firearm as reported in the BOLOs.

In response, appellant testified that he did not have a firearm and ignored the officers because he had not done anything wrong such that they would want to stop him. When the officers drew guns on him, he was afraid- and -became more afraid when the dog was let loose, as he had a fear of dogs. He did attempt to get away, but he said he did not drive with excessive speed.

In closing argument, the state argued: We know that information goes out over the radio and within minutes and a couple of blocks, Officer Selfo sees the car that matches the description, sees an individual at a pay phone that matches the description.

This is what the, what is going through the officer’s mind. They were investigating a possible crime.

Defense tells you Mr. Tillman had no gun. You know what? We don’t know that. The reason why we don’t know that is he doesn’t stay around to let the police do their job and find out. Maybe there wasn’t a gun in the car. Maybe this was a mistake. And if they would have been able to talk to him and searched the car, he may not be sitting here or maybe there was a gun in the car, maybe? We don’t know. Why? Because of, his actions. Maybe there was a gun in the car and we would be talking about a different case altogether.

The jury convicted appellant of aggravated fleeing and eluding and resisting arrest. It acquitted him of the counts of aggravated assault on a law enforcement officer. As a result of prior convictions, the court sentenced appellant as a habitual offender to thirty years in prison. This appeal follows.

The state claims the issue is not preserved because Tillman made no objections at trial. Tillman acknowledges that he did not object to the officers’ testimony or the state’s closing argument referring to Tillman’s involvement in an armed kidnapping, shooting, and firearm possession. However, the trial court made a definitive ruling on the record admitting evidence, meaning that Tillman need not have renewed his objection to preserve his claim of error for appeal. See Stokes v. State, 914 So.2d 514, 516 n. 2 (Fla. 4th DCA 2005); § 90.104(l)(b), Fla. Stat. Although the trial court offered to give “curative instructions” when the officers testified to the BOLOs, it allowed the state to comment on the BOLOs in opening argument. Thus, the damage of exposing the jury to the contents of the BOLOs began with the opening statement, where no curative instruction was allowed by the court. Thus, we consider the issue preserved for appeal.

An out-of-court statement which is offered for a purpose other than proving the truth of its contents is admissible when the purpose for which the statement is being offered is a material issue in the case. State v. Baird, 572 So.2d 904, 907 (Fla.1990). A police officer’s state of mind is generally not a material issue in a criminal prosecution. Id. When the only purpose for admitting testimony relating accusatory information received from an informant is to show a logical sequence of events leading up to an arrest, the need for the evidence is slight and the likelihood of misuse is great. Id. at 908 (citing Harris v. State, 544 So.2d 322, 324 (Fla. 4th DCA 1989)). See also Conley v. State, 620 So.2d 180, 183 (Fla.1993). “[T]he contents of a BOLO are generally inadmissible in that they contain incriminating hearsay details unnecessary to establish a logical sequence of events.” Shaffer v. State, 619 So.2d 409, 410 (Fla. 4th DCA 1993).

In Saintilus v. State, 869 So.2d 1280 (Fla. 4th DCA 2004), noting that the state frequently attempts to admit the contents of hearsay based upon state of mind, Judge Farmer wrote:

In spite of substantial authority condemning this attempt to adduce prejudicial hearsay, the state often persists in offering this kind of hearsay to explain the “state of mind” of the officer who heard the hearsay, or to explain a logical sequence of events during the investigation leading up to an arrest. This type of testimony occurs with the persistence of venial sin. The state’s insistence on attempting to adduce this particular brand of hearsay requires trial judges to be constantly on their guard against it.

Id. at 1282. Moreover, such evidence is not admissible to show a logical sequence of events. As the supreme court said in Keen v. State, 775 So.2d 263, 274 (Fla.2000):

[T]his Court clearly instructed in Baird, reaffirmed in Conley, and confirmed in Wilding [v. State, 674 So.2d 114 (Fla.1996) ] that an alleged sequence of events leading to an investigation and an arrest is not a material issue in this type of case. Therefore, there is no relevancy for such testimony to prove or establish such a nonissue. When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. See § 90.801(l)(c), Fla. Stat. (1999); Wright v. State, 586 So.2d 1024 (Fla.1991) (holding that where the only relevance of an out-of-court statement is to prove the truth of the matter asserted it is hearsay and is not rendered admissible when the non-hearsay purpose is not relevant).

Here, the contents of the BOLOs were not admissible to prove a material issue in the case. Although the trial court stated that they were admissible to show their effect on the state of mind of the officers, the state of mind of the officers was not a material issue of any offense charged. Even though the state suggests that it was necessary to show that the officers were engaged in a legal duty, the mere statement that they were investigating a BOLO report would have sufficed to provide them with the authority to approach appellant.

Moreover, the state used the BOLO information to suggest in closing that appellant may have had a gun, which was the reason he fled the scene. This is similar to the use of a police dispatch in Conley v. State, 620 So.2d 180 (Fla.1993), to prove that the appellant possessed a gun. There, an officer testified to the contents of the dispatch report that he “received the call in reference to a man chasing a female down the street.... The man supposedly had some type of gun or rifle.” Id. at 182. In closing argument, the prosecutor argued that this statement, combined with the alleged victim’s testimony, proved that appellant carried a rifle during the criminal episode.

The supreme court found that regardless of the purpose for which the state claimed it offered the evidence, the state used the evidence to prove the truth of the matter asserted. In so doing, the statement constituted hearsay with no exception. The court further found that even if the testimony was not used to prove the truth of the matter asserted, the contents of the statement were not relevant to establish a logical sequence of events, nor was the reason why officers arrived at the scene a material issue. The court concluded that the inherently prejudicial effect of the statement outweighed the probative value of such evidence.

Based upon the wealth of authority in which the courts have consistently held such hearsay statements inadmissible, the trial court erred in admitting the BOLOs which suggested not only that appellant was a suspect in an armed kidnapping but that he fled the scene because he had a firearm. The reasons proffered for its admission, namely the officers’ state of mind or to show a logical sequence of events, have been rejected in prior cases, and we reject their application here also.

We cannot find this error harmless beyond a reasonable doubt, even though the trial court offered to give curative instructions. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The state was allowed to alert the jury, without curative instruction, to the BOLOs in opening statement. The prosecutor did not state that appellant had not committed the armed kidnapping; he simply told the jury that appellant had not been charged with that crime. Further, in closing the prosecutor used the firearm aspect of the BOLOs to suggest to the jury that appellant fled because of a firearm in the car. Appellant did flee the scene, but he testified that he did not do so at an excessive rate of speed or in a reckless manner. The admission of the BOLOs may have affected the jury’s assessment of his statement.

We also reject the notion that an offer to give multiple “curative instructions” telling the jury not to consider the evidence for the truth of the matter asserted but allowing the state to place into evidence .the uncharged and highly prejudicial conduct is sufficient to cure the error. The evidence of the BOLOs did not relate to a material issue in the case. Therefore, it was inadmissible, and the curative instruction offered by the trial court would still have permitted the jury to consider irrelevant . and prejudicial information.; We therefore reverse for a new trial.

KLEIN and HAZOURI, JJ., concur.


text:
    Elvis CHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3211.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

In closing argument the prosecutor suggested that appellant and his witness had agreed on and aligned their testimony, suggesting fabrication of their version of events. Although the defense objected, the trial court overruled the objection. This highly improper argument requires reversal of this case, as the error is not harmless.

The state charged appellant Chavers with fleeing and eluding as well as possession of cocaine and cannabis. The charges stemmed from what officers testified was a high speed chase, and what Chavers and his witness claimed was no chase at all with the officers planting drugs in Chav-ers’s vehicle.

According to the state’s case, two officers in a marked police car observed a vehicle run a stop sign. They activated their lights and siren, but the vehicle did not stop. Instead, the driver ran several other stop signs and continued down the road at speeds in excess of seventy miles per hour. During the chase, they observed only appellant Chavers in the vehicle whom they also observed throwing small plastic packets out of the driver’s side window. One of the officers, with two years on the force and experience in narcotics arrests, testified that the packages looked like the types of packages in which marijuana or cocaine was distributed.

Chavers eventually pulled over after about two miles and got out of the car. One of the officers approached with his gun drawn. Chavers was cooperative with the officers. Another officer arrived and looked in Chavers’s vehicle. He found a green leafy substance, which he believed to be marijuana, on the driver’s seat of the vehicle. The substance was in plain view, sticking out of the crevice of the seat. Additionally, one of the other officers found a piece of what appeared to be crack cocaine on the stick shifter in the middle of the vehicle. Lab testing revealed that officers had collected 1.84 grams of marijuana and 83 milligrams of cocaine from appellant’s vehicle.

On the defense side of the case, witness Alan McCullon testified to a significantly different version of events. On the date in question, Chavers was giving McCullon a ride to a friend’s house. On their way a police car behind them activated its lights, but not its siren. Chavers pulled over to the side of the road. The police car stayed behind Chavers’s car. However, no one got out of the police car, so Chavers proceeded to drive off. He then dropped McCullon off at the friend’s house. McCullon testified that Chavers did not speed, did not run a red light, and did not run any stop signs, nor was anything thrown out of the vehicle. To McCullon’s knowledge, Chavers did not have any drugs in the vehicle. When McCullon called Chavers later, Chavers told him that he had been arrested.

McCullon acknowledged having a conversation with Chavers in which Chavers told him that he needed McCullon to testify to “what happened the day when we were in the car when he dropped me off.” McCullon described the conversation as follows: “He said tell them what happened. That’s all we need you for. Tell them what happened.” As McCullon put it, “He said I need you to come to court. They want to stick me with fleeing and eluding and some other charges.”

Chavers testified to much of the same version of events as did McCullon up until the time he dropped McCullon off. After that he proceeded on, not noticing any police following him. When he reached an intersection, he saw the police car approaching him with its lights and siren activated. The car pulled right behind appellant, so he did not go anywhere. Officers approached his vehicle with guns drawn. An officer grabbed Chavers’s arm, pulled him out of the car, and handcuffed him. Officers told him they found crack cocaine and a big bud of marijuana in his car. He denied throwing anything out of his car. Chavers testified that there were no drugs in his car, and he thought that the police had set him up and planted the drugs in his car.

The jury acquitted Chavers of fleeing and eluding but convicted him of possession of cocaine and marijuana. The trial court sentenced him to the county jail for the two drug charges. This appeal follows.

Chavers claims that the prosecutor made several improper statements in closing argument meriting a new trial. We conclude that only one set of statements preserved by objection constituted error and was sufficiently harmful to warrant a new trial.

During closing argument, the prosecutor stated the following:

Does Mr. Chavers have an interest in how this case comes out? Does Mr. Chavers’ friend have an interest in how this case turns out? Mr. Chavers’ friend who said that Mr. Chavers asked him to come in and tell them what happened. Evaluate that. Is that the conversation that was had? Hey, Alan, you need to go to the jury, go to trial and tell them what happened. Or was it you need to go and tell the jury the same story I’m going to tell them....
Those two stories are very consistent. Because Mr. Chavers asked his friend to come in here and tell you that nothing happened and this was completely fabricated.

At that point, defense counsel objected, but the trial court overruled the objection. Shortly thereafter, the prosecutor again said that McCullon and Chavers “discussed their testimony and said this is what we’re going to say happened on this day.”

“A suggestion that the defendant suborned perjury or that a defense witness manufactured evidence, without a foundation in the record, is completely improper.” Cooper v. State, 712 So.2d 1216, 1217 (Fla. 3d DCA 1998). As we said in Henry v. State, 651 So.2d 1267, 1268-69 (Fla. 4th DCA 1995):

The implication by the prosecutor in this case was that the defense “got to” the witness. That suggests that the defense was engaged in tampering with a witness and suborning perjury, both criminal offenses. Such a comment is highly irregular, impermissible, and prejudicial. See Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984), rev. denied, 456 So.2d 1182 (Fla.1984). We strongly disapprove of the prosecutor’s making comments which impugn the defense without any basis.

In Berkowitz v. State, 744 So.2d 1043 (Fla. 4th DCA 1999), this court reversed the defendant’s conviction where the prosecutor stated in closing argument that a reasonable interpretation of the facts was that the defense witness and the defendant “got together and they contrived and concocted their story.” Id. at 1045. We noted that even if the witness’s testimony was unworthy of belief, there was nothing in the record to support the prosecutor’s charge that the defendant encouraged the witness to testify as he did. Id. This court found that the error was not harmless, as the entire case boiled down to the credibility of the defense witness and the victim. Id.

Although the jury acquitted Chav-ers of fleeing and eluding, thus suggesting that they found McCullon and Chavers’s version of the events credible, we still cannot say that this highly prejudicial comment was harmless beyond a reasonable doubt. McCullon also testified that he did not see any drugs in the car. To that extent, the jury did not believe his testimony and may have been swayed by the prosecutor’s argument. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) teaches:

The harmless error test, as set forth in Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Where the state relies on highly improper, unprofessional argument to sway the jury of the lack of credibility of the defense’s case, we cannot say beyond a reasonable doubt that it did not contribute to the conviction, even on those counts on which the defense witness gave only modest testimony.

Chavers also claims that the court erred in admitting the testimony of the officer who allegedly saw him throw packages looking like drug containers out of the window. He argues that because the officer did not specifically testify to his experience with cocaine, there was no basis for admitting his opinion that the substance allegedly dumped out of appellant’s car window was cocaine. We decline to address this issue, as it was not preserved because this specific legal ground was not argued to the trial court. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985).

At bar, Chavers objected that the officer’s testimony that these little bags, thrown out of the car four to six car lengths in front of the police car, was sheer speculation. An objection that the testimony was speculative is not sufficient to place the trial court on notice of any alleged error in admitting opinion evidence without proper foundation. See, e.g., State v. Hubbs, 268 N.W.2d 188, 189 (Iowa 1978) (general objection that evidence was “speculative” was insufficient to preserve error in admitting opinion evidence); see also In re M.D.S., 1 S.W.3d 190, 202 (Tex.App.1999) (holding that an objection that the witness’s opinion was based on speculation was not sufficient to preserve error as to the witness’s qualifications as an expert). In this case, there was no objection raised to the officer’s qualifications to give an opinion as to the substance being thrown out of the car window. Had such an objection been made, the prosecutor would have had the opportunity to try to lay the appropriate foundation for such opinion testimony. As the issue is not preserved, we do not address it further.

For the foregoing reasons, we reverse Chavers’s convictions and remand for a new trial.

SHAHOOD, C.J., and STEVENSON, J., concur.


author: HAZOURI, J.

text:
    Trace BECKFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3392.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Trace Beckford asserts that the trial court erred in failing to grant his motion for judgment of acquittal because the evidence presented by the state was entirely circumstantial and did not rebut a reasonable hypothesis of innocence. We agree and reverse.

Beckford was charged by information with burglary of an occupied dwelling or structure causing damages in excess of $1,000.00 to a residence located in Plantation, Florida. The residence had an extensive alarm system. Before the homeowner left for vacation he asked his neighbor, Steven Ciccone, to keep an eye on his house. The victim’s house was located on a cul-de-sac and the only other house on the cul-de-sac was that of Ciccone.

On the day of the incident in question, Ciccone was watching television in his garage when he heard the security alarm go off at his neighbor’s house. This occurred around 1:00 p.m. Upon hearing the alarm, he walked out to his driveway and observed Beckford talking on his cell phone and walking down the driveway. When Ciccone observed Beckford he was at the front of the house, on the left side of the driveway, closest to the garage. There is a walkway that continues as a part of the driveway around the left side of the house to a fence which encloses the entire backyard. When Ciccone observed Beckford, he called out “What the hell are you doing,” but Beckford ignored him and just kept walking at a faster pace. Ciccone observed Beckford get into a Chevy pickup and drive away at a fast speed but not in a reckless manner.

Thereafter, Ciccone got into his vehicle and followed Beckford, who at the time was accompanied by a female passenger. Ciccone alerted law enforcement as he was following Beckford and subsequently law enforcement was able to stop Beckford and effect an arrest.

At trial, Ciccone testified that he never saw anyone at the rear of his neighbor’s property, and that there were always people who were soliciting and walking around the neighborhood. At the time Ciccone observed Beckford, Beckford did not have any gloves or socks covering his hands and Ciccone never heard any noises at the rear of the neighbor’s house before the alarm was activated.

The metal trim or molding around the French doors in the screened patio at the rear of the house was taken off and the bottom of one of the French doors had a chip in the glass. Evidence was presented that the alarm was activated by the glass-break detector on the family room window at the rear of the house. Approximately four to six houses down the street from the cul-de-sac, the police found a pair of kitchen sheers lying on the ground. However, there was no testimony connecting the kitchen shears to Beckford, nor was there any evidence that the kitchen shears made the pry marks on the French doors. The crime scene was dusted for fingerprints but none were found and there were no fingerprints on the kitchen shears.

“In reviewing a motion for a judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

The evidence introduced by the state was entirely circumstantial and

[i]t is well established that when the state relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must also eliminate all reasonable hypotheses of innocence. Evidence that a suspect is present at the scene of a crime and flees after it has been committed is insufficient to exclude a reasonable hypothesis of innocence.

Owen v. State, 432 So.2d 579, 581 (Fla. 2d DCA 1983) (citations omitted).

In Owen, the victim of a sexual assault was unable to identify her assailant. She was able to escape and after she went to the home of a neighbor, the neighbor’s son and his friend went to her house. As they approached they saw a male run from the side of the garage. They chased him down the street, and observed him get into a car and lock the doors. They banged on the windows, but the suspect drove off.

The two men were able to give the police a detailed description of the suspect and his car, and after the suspect was arrested, they identified him from the photographs and in a line-up. He was convicted of burglary and sexual battery based on their testimony as to identification. In holding that the trial court erred in failing to grant Owen’s motion for judgment of acquittal, the court stated:

No one saw the defendant enter the victim’s home, remain in the house, or leave the house. The state did not offer any evidence of fingerprints, palmprints, or footprints in or about the house. The evidence did establish that he [Owen] was in the yard, but no one offered testimony to indicate any more than that he was a prowler.

Id. at 581.

In the instant case, the circumstantial evidence presented by the state is clearly insufficient to prove that Beckford had committed a burglary or attempted to commit a burglary. There was no physical evidence connecting Beckford to the burglary. There were no fingerprints found at the crime scene or on the kitchen shears. There was no eyewitness who could place Beckford in the backyard at the time the alarm was activated or observe him trying to break into the house. When Ciccone saw Beckford walking down the driveway, he was talking on his cell phone and was not wearing gloves or socks to cover his hands. Ciccone acknowledged that there were always people walking around the neighborhood and soliciting. There were no burglary tools or tools of any kind found on Beckford’s person or in the car when he was stopped. The circumstantial evidence presented by the state was not inconsistent with the reasonable hypothesis that Beckford was merely soliciting and finding nobody home, proceeded to walk down the driveway. We therefore reverse and remand with directions that Beckford’s conviction be vacated.

Reversed and Remanded with Directions.

KLEIN and TAYLOR, JJ., concur.


text:
    J.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2438.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Arias v. State, 751 So.2d 184 (Fla. 3d DCA2000).


text:
    Ronnie FRALEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3225.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.

      Ronnie Fraley, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, 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 shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (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 relief.

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    Lazavius D. WEBB, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1376.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Lazavius D. Webb, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

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:
    Eric T. FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3958.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.

      Eric T. Frazier, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In this petition for -writ of mandamus, Eric Frazier seeks an order compelling the circuit court to rule on an amended motion for postconviction relief he filed approximately 60 days before filing his petition with this court. We conclude that the request for mandamus relief is premature and deny the petition on that basis.

PETITION DENIED.

WOLF, BENTON, and HAWKES, JJ., concur.


text:
    Farrand D. CLARK, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2234.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Farrand D. Clark, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. We do, however, quash the circuit court’s order imposing a lien of $280.00 on June 30, 2005, and direct the circuit court to order reimbursement of any funds that have been withdrawn from petitioner’s inmate trust account to satisfy the improper appellate fee lien order. Wheeler v. McDonough, 957 So.2d 94 (Fla. 1st DCA 2007); Reddick v. McDonough, 938 So.2d 595 (Fla. 1st DCA 2006). Because, petitioner challenged the loss of gain time, the proceeding below qualified as a “collateral criminal proceeding” under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), and there is no authority for imposing a lien under section 57.081, Florida Statutes (2006), the general indigency statute. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

WOLF, PADOVANO, and POLSTON, JJ., concur.