author: SALCINES, Judge. VILLANTI, Judge,

text:
    A.T.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4154.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2008.
    J. Jervis Wise of Bjorn E. Brunvand, P.A., Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

A.T.P. appeals an order of the juvenile division of the circuit court that found him guilty of the delinquent act of possession of cocaine. The court withheld adjudication and placed A.T.P. on probation. We agree that the court erred when it denied A.T.P.’s motion to suppress and reverse.

On December 11, 2005, at approximately 8 p.m., a Pinellas County Sheriffs deputy observed a red Dodge Charger traveling at a high rate of speed. The deputy followed the vehicle in order to speak to the driver “about his driving habits.” Shortly after the deputy began to follow the vehicle, it pulled into the driveway of a residence. The driver exited his car and walked to the front door of the residence to meet a friend. The driver was walking back to the area where the Dodge Charger was parked when the deputy initiated a consensual citizen’s encounter and requested to speak to A.T.P. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (identifying three levels of police-citizen encounters, including (1) a consensual encounter, (2) a temporary detention or investigatory stop, and (3) an arrest). A.T.P. complied, walked over to the deputy, and provided his name.

The deputy testified that A.T.P.’s name was similar to an individual who was wanted for questioning by the sheriffs office. The deputy informed A.T.P. of this fact and started to place handcuffs on him. A.T.P. explained that the individual being sought was his brother and moved his head so his hair was not covering his face. The deputy then observed that A.T.P. was not the individual being sought and advised A.T.P. that he was free to go.

Thereafter, A.T.P.’s friend approached him, and the two young men were conversing thirty or sixty feet away from the Dodge Charger. The deputy sat in his patrol car and checked A.T.P.’s name in the FCIC/NCIC database. He learned that A.T.P. had a business purposes only driver’s license. The deputy then approached A.T.P., informed him of the apparent violation, and requested consent to search his person and his vehicle. A.T.P. consented to a search of his person but not of his vehicle. The deputy discovered cash on A.T.P.’s person but found no contraband or keys to the vehicle. The deputy arrested A.T.P. for the driver’s license violation.

At the time of the arrest A.T.P. and the deputy were located thirty to sixty feet away from the Dodge Charger. Approximately thirty-five minutes had elapsed since A.T.P. had exited his car. A search of the vehicle was conducted and cocaine was discovered in the center console compartment. A.T.P. was charged with possession of cocaine.

A motion to suppress was filed which claimed the search of the Dodge Charger was illegal because A.T.P. had not been arrested inside the vehicle or while in close proximity to it. The trial court denied the motion to suppress and concluded that Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), was controlling.

The facts in the Thornton case are that a police officer in an unmarked patrol car noticed Thornton was driving in a suspicious manner. The officer maneuvered to get behind the vehicle and ran the license tag. He found that the tag had been issued for a different vehicle. Before the officer could pull the vehicle over, Thornton drove into a parking lot, parked, and exited the vehicle. The officer pulled his unmarked patrol car behind Thornton’s car. Thornton was approached and the officer asked for his driver’s license. The officer informed Thornton that his tags did not match his vehicle. Thornton appeared to be very nervous. The officer conducted a pat-down search which yielded drugs and Thornton was arrested. When the officer thereafter searched Thornton’s vehicle, a handgun was discovered.

In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court approved the search of automobiles incident to an arrest when an officer had made contact with the occupant of an automobile and later arrested that individual. Thornton argued to the U.S. Fourth Circuit Court of Appeals that Bel-ton was limited to situations in which the officer initiated contact while the arrestee was still in his vehicle. The Fourth Circuit Court of Appeals held that the rationales for the search incident to arrest — the need to disarm a suspect in order to take him into custody and the need to preserve evidence — did not require the suspect to still be in his vehicle. The Fourth Circuit noted that Thornton conceded that he was in “close proximity, both temporally and spatially” to his vehicle and concluded that the car was within Thornton’s immediate control, and thus the officer’s search was reasonable under Belton. See Thornton, 541 U.S. at 619, 124 S.Ct. 2127.

In upholding the Fourth Circuit’s decision, the Supreme Court noted that in Belton it found that when an officer made “ ‘a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ ” Thornton, 541 U.S. at 620, 124 S.Ct. 2127 (quoting Belton, 453 U.S. at 460, 101 S.Ct. 2860 (footnote omitted)). There had been no reliance placed on the fact that the officer had ordered the occupants out of the vehicle or on whether the officer had initiated contact with the occupants while they remained in the vehicle. Id. The Thornton court stated, “There is simply no basis to conclude that the span of the area generally within the arrestee’s immediate control is determined by whether the arrestee exited the vehicle at the officer’s direction, or whether the officer initiated contact with him while he remained in the car.” Thornton, 541 U.S. at 620-21, 124 S.Ct. 2127.

The Supreme Court concluded:

In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle. An officer may search a suspect’s vehicle under Belton only if the suspect is arrested. A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty.” The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation.

Id. at 621, 124 S.Ct. 2127 (citations omitted, emphasis added).

The holding in Thornton demonstrates that the Supreme Court’s rationale is to protect the law enforcement officer when the recent occupant is still in control of the vehicle. The court noted that an arres-tee’s status as a “recent occupant” of a vehicle “may turn on his temporal or spatial relationship to the car at the time of the arrest and search” but it certainly does not turn on whether he was inside or outside the vehicle at the moment the officer first initiated contact with him. Id. at 622, 124 S.Ct. 2127. The court stated that once an officer determines that there is probable cause to make an arrest, “it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.” Id. at 623,124 S.Ct. 2127.

When reviewing the trial court’s ruling on a motion to suppress, we must defer to the factual findings of the trial court that are supported by competent, substantial evidence. However, the standard of review for the trial court’s application of the law to its factual findings is de novo. See Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005).

We conclude that the facts of the present case as outlined above make it distinguishable from Thornton. Here, A.T.P. was not in close proximity to his vehicle, had not recently exited the vehicle, and did not have the keys to the locked vehicle in his possession. There was no evidence that the deputy was concerned for his safety or that there was a risk that A.T.P. might destroy any evidence that might be contained in the vehicle. From our de novo review we conclude that the trial court erred when it denied the motion to suppress based on the legal conclusion that the case was controlled by Thornton. Accordingly, we reverse the withhold of adjudication for possession of cocaine and remand for discharge for this offense.

Reversed and remanded.

ALTENBERND, J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

This case involves an evolving area of the law that will ultimately benefit from further refinement by the courts. Here, the State argues, in essence, that Thornton established a bright-line rule allowing officers to search a vehicle incident to an arrest any time the arrestee exits a vehicle at any time while within the officer’s sight. However, it seems clear to me that Thornton permits a vehicle search incident to arrest only when there has been no significant temporal or spatial break between the occupant’s exit of the vehicle and his or her ultimate arrest. As the law stands now, the time and distance parameters that make one a “recent occupant” of a vehicle so as to obviate the requirement for a search warrant are determined on a case-by-case basis after considering the totality of the circumstances. Until there is a larger body of case law analyzing what does and does not constitute a temporal or spatial break, the law in this area will be somewhat unsettled.

That said, however, in my view the record in this case clearly establishes that A.T.P. was well beyond any outside time or distance parameters that define who is a “recent occupant” of a vehicle. Had A.T.P. remained by his vehicle while the officer conducted the second, separate investigation that ultimately led to AT.P.’s arrest or had he prematurely walked away from his vehicle without the officer’s permission, then perhaps the nexus between A.T.P. and his vehicle would not have been broken and our result might be different. Cf. Rainey v. Commonwealth, 197 S.W.3d 89, 94-95 (Ky.2006) (holding that although the arrestee had parked his car, crossed the street, and walked 50 feet from his vehicle before foot patrol officers could approach him, the arrestee was a “recent occupant” of a vehicle when he was stopped based on the officers’ observations of him speeding past them and their immediate attempts to stop him); see also People v. Bridgewater, 375 Ill.App.3d 414, 313 Ill.Dec. 750, 873 N.E.2d 45 (2007) (holding that the driver’s exit from his vehicle, his refusal to obey a pursuing officer’s command to stop and return to his vehicle, and his entry into a nearby restaurant did not change his status as a “recent occupant” of a vehicle for purposes of a search incident to arrest). Here, however, the officer cleared and released A.T.P. at the conclusion of the officer’s initial investigation, and A.T.P. was then free to go, and in fact did go, about his business. Under my reading of Thornton, I concur with the majority that these undisputed facts require a finding that A.T.P. was not a “recent occupant” of his vehicle as a matter of law.

      . The car doors were locked. One of the car windows was cracked, and the deputy was able to reach in and unlock the door to gain access to the interior of the vehicle.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Alien LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3597.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2008.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Gary Allen Lane appeals the enhancement of his sentence for aggravated battery based on the imposition of a domestic violence multiplier. We reverse and remand for resentencing.

Florida Rule of Criminal Procedure 3.704(d)(23) provides for a domestic violence multiplier of one-and-a-half times when a domestic battery is committed in the presence of a child under the age of 16. In this case, the state presented an argument that the child of the appellant and the victim resided in the home. However, no evidence was presented by the state on this issue or, more importantly, on the issue of whether their child was present during the domestic violence. Rolle v. State, 835 So.2d 1258, 1259 (Fla. 4th DCA 2003) (remanding to the trial court for correction of the sentence when the State failed to establish the presence of a child under the age of 16 during the incident). In fact, the victim’s affidavit, which was accepted into evidence without objection, stated that the child was not in the home at the time of the battery.

We, therefore, REVERSE and REMAND to the trial court for the preparation of a new Criminal Punishment Code Scoresheet without the enhancement provided by rule 3.704(d)(23) and for resen-tencing thereon.

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


author: WHATLEY, Judge.

text:
    Ray Donovan NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5297.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

We consider Nevels’ appeal as a petition for writ of certiorari and deny the petition. See Woods v. State, 969 So.2d 408 (Fla. 1st DCA 2007).

NORTHCUTT, C.J. and FULMER, J., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Robert Leon HILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5235.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.
    James Marion Moorman, Public Defender, and Lanitra Sanehez-Moore, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

Charged with burglary, Robert Leon Hill was convicted of trespass as a lesser charge. On the basis of that offense, the trial court found that Hill had violated his probation and ordered it revoked. We reverse.

The State alleged that Hill burgled an antiques store in Dunedin. The store was located in an old house, and the burglar apparently entered by breaking a window that faced an alley behind the house. Hill’s thumbprint and partial palm print were found on a piece of glass resting on the ground at the scene. But the State’s witnesses could not say when the prints had been left or whether they had been left on the inside of the windowpane or the outside. Pedestrians were known to use the alley, and there were no fences restricting access from the alley to the store. Hill testified that one night as he walked down the alley on his way home from work, he paused behind the store to relieve himself and leaned his hand against the window as he did so.

Thus, the only evidence pointing to Hill as the culprit was the circumstance that his fingerprints were found at the scene. To support a conviction based on circumstantial evidence, the circumstances must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). Consistent with that rule, a fingerprint left in a location accessible by the public, without more, is insufficient to establish the identity of the culprit. “Unless there is other evidence of identity, the state must show that the prints could have been made only at the time the crime was committed.” Mutcherson v. State, 696 So.2d 420, 422 (Fla. 2d DCA 1997) (citations omitted). The State made no such showing in this case.

The State argues that this window was not accessible to the general public, but the evidence demonstrated otherwise. Specifically, the State’s position on this point is negated by photographs depicting the broken window and by the store owner’s testimony regarding pedestrian traffic in the alley. The State also contends that the fingerprints were consistent with someone pulling the broken glass out of the frame. This would be true if prints had been left on both sides of the glass. They were not. In sum, the only evidence implicating Hill were the fingerprints, and the State failed to show that the prints could only have been made at the time of the crime. Accordingly, we must reverse. See, e.g., Ballard v. State, 923 So.2d 475 (Fla.2006) (reversing murder and robbery convictions in circumstantial evidence case where state failed to prove defendant left fingerprint and hair at scene during commission of crime rather than during earlier, innocent visits to premises); Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970). The State does not dispute Hill’s assertion that this theory applies equally to the trespassing conviction as it would to a burglary conviction.

We reverse Hill’s trespass conviction and remand for a discharge on this offense. We also reverse the revocation of probation, which was based solely on the trespassing conviction, and we remand for Hill’s reinstatement to probation.

Reversed and remanded with directions.

LaROSE, J„ and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


text:
    Darryl Richard BOULDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-521.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.
    James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Boulden’s right to seek appropriate and timely post-conviction relief.

STRINGER and SILBERMAN, JJ., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    The STATE of Florida, Appellant, v. Armando MOJENA, Appellee.
    No. 3D07-195.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      Bill McCollum, Attorney General, and Olga L. Villa, and Lisa Davis, Assistant Attorneys General, for appellant.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari, see State v. Springer; 965 So.2d 270 (Fla. 5th DCA 2007), and deny the same as moot.


text:
    B.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-872.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The juvenile-appellant was charged with trespass after warning (count 1) and trespass in a structure (count 2) as a result of her repeated failure to leave an open, unfenced stairway leading from the walkway to the front porch and entrance doors of the Unity Health and Rehabilitation Center in Miami-Dade County. She was found not guilty as to count 1, but guilty as to count 2 and appeals.

As the state rightly concedes, the adjudication cannot stand because the stairway, which was plainly not within the “structure” itself, was also, contrary to the trial court’s belief, not within its “curti-lage,” so as to justify such a conviction. See Freeman v. State, 743 So.2d 603 (Fla. 4th DCA 1999); L.K.B. v. State, 677 So.2d 925 (Fla. 5th DCA 1996).

The state bravely suggests that B.W. was actually guilty of “trespass on property other than a structure or conveyance after warning.” This claim however, is entirely unavailing. Rightly or (probably) wrongly, B.W. was acquitted of count 1, the only charge which alleges that conduct. Obviously, we have no authority to interfere with that determination in any way. See L.F. v. State, 859 So.2d 1251 (Fla. 3d DCA 2003).

Accordingly, the adjudication is reversed with directions to discharge the respondent.

Reversed and remanded.


text:
    Edward PRIDE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1219.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Edward Pride, in proper person.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of orders denying post-conviction motions under Florida Rule of Criminal Procedure 3.800(a) and 3.850. We affirm in part and reverse in part.

Defendant-appellant Pride is in custody under the Jimmy Ryce Act. In his Rule 3.800(a) motion, the defendant seeks to bring himself under the rule in State v. Atkinson, 831 So.2d 172 (Fla.2002). In Atkinson, the defendant was allowed to demonstrate that under a properly corrected sentence, the sentence would have expired prior to the effective date of the Jimmy Ryce Act. Id. at 174. In the present case, the defendant maintains that under a properly calculated scoresheet, his sentence likewise would have expired prior to the effective date of the Act.

In his Rule 3.800(a) motion, the defendant alleges that there was an incorrect calculation made in his sentencing guidelines scoresheet. The scoresheet included points for legal constraint on the theory that the defendant was on probation in another case at the time of the probation violation in this case. In the trial court, the State conceded that those points should not have been scored. If those points are eliminated, then the defendant drops into a lower guidelines cell.

The State contended, however, that it had located several additional prior convictions for this defendant which, if added to the scoresheet, resulted in a higher score than the original one. Defense counsel argued that the additional offenses were not scorable and had not been shown to belong to this defendant. While the trial court apparently was shown the State’s recalculated scoresheet and certified copies of the convictions, those were not made part of the record below and are not part of the postconviction record now before us.

On appeal from the summary denial of a rule 3.800(a) motion, this court must reverse unless the postconviction record shows conclusively that the appellant is not entitled to any 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 solely on the claim of scoresheet error. If the trial court again enters an order summarily denying the postconviction motion, the court must attach record excerpts conclusively showing that the appellant is not entitled to any relief. In this case that may include the State’s recalculated scoresheet, if approved by the trial court, plus the supporting documentation regarding the additional convictions.

In the Rule 3.800(a) motion, the defendant also attempted to raise the claim that his plea was involuntary. We entirely agree with the trial court that such a claim is not cognizable in a rule 3.800(a) motion. See Babie v. State, 905 So.2d 986 (Fla. 3d DCA 2005).

The trial court denied the Rule 3.850 motion as being untimely. We agree with the trial court that the motion was untimely and that no exception to the time limit was applicable.

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


author: ROTHENBERG, Judge.

text:
    The STATE of Florida, Appellant, v. Terry SCANES, Appellee.
    No. 3D07-1283.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellant.
    Julie D. Leckart and Andrew F. Rier, Miami, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The State of Florida (“the State”) appeals the trial court’s order which: (1) sentences Terry Scanes (“the Defendant”) below the recommended guidelines; (2) imposes a three-year minimum mandatory sentence, as opposed to the statutorily required ten-year minimum mandatory sentence set forth in section 775.087, Florida Statutes (2005), as to the Defendant’s kidnapping conviction; and (3) fails to impose one year of probation, as required by section 741.281, Florida Statutes (2005). As the sentences were imposed based upon a court-offered plea, over the State’s objection, and the sentences fail to impose statutorily mandated penalties, we reverse.

The Defendant was charged with: (1) armed kidnapping; (2) possession of a firearm by a convicted felon; (3) aggravated assault with a firearm; and (4) battery. The charges stem from a domestic violence incident involving the Defendant’s estranged wife (“Ms. Hubert”).

Ms. Hubert claimed that on June 15, 2005, she stopped at the Defendant’s house to bring a toy to their child, who was visiting the Defendant. When she rang the doorbell, the Defendant opened the door, pointed a firearm at her, and pulled her into the house, where he struck her about the head, face, and chest, demanding to know where she had been the previous evening. Ms. Hubert also claimed that the Defendant struck her with his fist, knocking her to the floor, and then he kicked her and stepped on her back, while threatening to kill her and himself. The Defendant then taped Ms. Hubert’s hands and legs, dragged her throughout the house, and continued to strike her until she began to have difficulty breathing and became unresponsive. At that point, the Defendant summoned fire rescue. While being treated by fire rescue, Ms. Hubert told them what occurred, and the Defendant was subsequently arrested and charged.

According to the sentencing scoresheet, the Defendant’s recommended sentence fell within a range of 97.3 months (8.1 years) to life in prison. Pursuant to section 775.087, Florida Statutes (2005), the trial court was required to impose: (1) a three-year minimum mandatory sentence for possession or use of a firearm during the commission of or the attempt to commit an aggravated assault; (2) a three-year minimum sentence for possession of a firearm by a convicted felon; and (3) a ten-year minimum mandatory sentence for possession or use of a firearm during the commission of or the attempt to commit a kidnapping.

Section 775.087, Florida Statutes (2005), provides in part as follows:

775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.
(2)(a)l. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
h. kidnapping;
and during the commission of the offense, such person actually possessed a “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a “firearm” or “destructive device” during the commission of the offense.

In the instant case, the trial court was required to impose a ten-year minimum mandatory sentence as to the kidnapping charge because the Defendant pled guilty to kidnapping with a firearm, defense counsel stipulated that there was a factual basis for the plea, the trial court specifically found that there was a factual basis for the plea, and the State objected to the court-offered plea. As the trial court was required to impose a ten-year minimum mandatory sentence as to that count, we reverse the illegal three-year minimum mandatory sentence, and remand for the imposition of a ten-year minimum mandatory sentence as to the kidnapping charge. See State v. Strazdins, 890 So.2d 334, 334 (Fla. 2d DCA 2004) (finding that when a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, the sentence is not within the limits prescribed by law and it is properly viewed as an “illegal” sentence); Allen v. State, 853 So.2d 533, 534 (Fla. 5th DCA 2003) (affirming trial court’s modification of sentence from a three-year minimum mandatory sentence to a ten-year minimum mandatory sentence where sentencing statute required the imposition of a ten-year minimum mandatory sentence, and therefore, three-year minimum mandatory sentence was illegal); State v. Moore, 854 So.2d 832, 833-34 (Fla. 5th DCA 2003) (vacating a sentence, where based upon a court-offered plea, the trial court faded to impose the statutorily mandated three-year minimum mandatory sentence).

The trial court also committed reversible error in failing to impose a minimum of one year of probation in this case. Section 741.281, Florida Statutes (2005), requires the imposition of at least one year of probation in domestic violence cases. Since this was undisputably a domestic violence case, and the imposition of probation in domestic violence cases is mandatory, not discretionary, the trial court erred in failing to impose the mandated sentence.

We, therefore, reverse and remand with directions to the trial court to permit the Defendant to elect whether to withdraw his plea or to be sentenced to the statutorily mandated sentences.

Reversed and remanded.


text:
    Alfred SAMUELS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3766.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Alfred Samuels, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Alfred Samuels appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. His specific challenge is to the denial of his motion to amend. We reverse both orders and remand for the trial court to permit the filing of an amended motion. A rule 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion. Hyacinthe v. State, 940 So.2d 1280 (Fla. 4th DCA 2006) (citing Gaskin v. State, 737 So.2d 509 (Fla.1999), receded, from, on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004)).

Reversed and Remanded.

SHAHOOD, C.J., POLEN and HAZOURI, JJ., concur.


text:
    F.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1629.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

      Before GERSTEN, C.J., and COPE, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. § 776.012, § 784.03, Fla. Stat. (2007); R.I. v. State, 561 So.2d 26 (Fla. 3d DCA 1990).


text:
    Alger ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4023.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Alger Ellison, Punt Gorda, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph Tringali, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Alger Ellison appeals the summary denial of his motion to correct illegal sentence, filed pursuant to rule 3.800(a). The lower court received the motion on Friday, September 14, 2007 and denied the motion by order dated Monday, September 17, 2007, without explanation or attachment of any records which conclusively refute the claims. We reverse the order on appeal and remand for further proceedings. See Taylor v. State, 972 So.2d 890 (Fla. 4th DCA 2007); Hayes v. State, 958 So.2d 571 (Fla. 4th DCA 2007).

Reversed.

SHAHOOD, C.J., GROSS and MAY, JJ., concur.


author: WELLS, Judge.

text:
    The STATE of Florida, Petitioner, v. Robert SEITZ, Respondent.
    No. 3D07-2351.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      Bill McCollum, Attorney General, and Lisa Davis, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for respondent.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   WELLS, Judge.

The State seeks certiorari review of an order authorizing defendant, Robert Seitz, to take the telephonic deposition of Mark Smith, a former Assistant State Attorney, who at one time was assigned to Seitz’s ongoing criminal prosecution. We grant certiorari and quash the order.

In September 2001, Seitz was charged in a seven-count information with battering and stalking Jilda Unruh, a local television journalist, and with making threatening and harassing telephone calls to her. Seitz was also charged with violating an earlier injunction against repeat violence. Almost six years after these charges were filed, Seitz obtained the order under review, permitting him to conduct the telephonic deposition of Smith, a prosecutor previously assigned to Seitz’s case. Seitz claimed that this prosecutor’s testimony was material to his defense, arguing that the instant prosecution “is a political prosecution due to the relationship between the State Attorney Katherine Rundle, the alleged victim Jilda Unruh and the prosecutor originally assigned to this case, Mark Smith.”

Seitz claims here that he needs Smith’s testimony to demonstrate that Unruh is biased. We disagree, finding that Seitz does not need Smith’s deposition to demonstrate bias. As the victim of these crimes, Unruh undoubtedly will be “biased” in her own, and thus in the State’s, favor. Seitz has also failed to demonstrate any legitimate basis for inquiring into the State’s reasons for prosecuting this case. See Richardson v. State, 831 So.2d 799, 801 (Fla. 2d DCA 2002) (confirming that Florida applies a “heightened burden of proof on defendants to prove a selective prosecution claim” and that “to establish a selective prosecution claim, a defendant must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory intent”); State v. A.R.S., 684 So.2d 1383, 1384-85 (Fla. 1st DCA 1996) (confirming that “the government has broad discretion in determining whom to prosecute, and this discretion ‘rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review,’ ” and that “[t]o support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing at least pri-ma facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. State v. Parrish, 567 So.2d 461, 465 (Fla. 1st DCA 1990) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)), review denied, 581 So.2d 167 (Fla.1991).”). There is, therefore, nothing for this former Assistant State Attorney to testify about that may be either relevant or material to the defense of the crimes charged in this case.

Accordingly, the order authorizing the telephone deposition of Mark Smith is hereby quashed.

      . According to Seitz, Smith was a confidential source for Unruh.


text:
    Craig Stephen SINCLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-390.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jerome Smiley, Jr., Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Craig Sinclair appeals his conviction by a jury for false imprisonment and the enhancement of his sentence based on his status as a prison releasee reoffender (PRR). We find that the evidence was sufficient to support the charge and conviction of false imprisonment, and we therefore affirm on that issue. With respect to the PRR enhancement, the State has commendably conceded error. False imprisonment is not an enumerated felony under subparagraph 775.082(9)(a)l, Florida Statutes (2004). We therefore reverse the sentence imposed on that basis and remand the case to the trial court for re-sentencing and any other appropriate action.

Affirmed in part; reversed and remanded in part.

       At oral argument, it was represented to the court by Sinclair's appellate counsel that Sinclair will be eligible for release when the PRR enhancement is eliminated upon re-sentencing. We neither endorse nor reject that representation, but we are issuing this opinion immediately in light of the State's concession and counsel’s concern.


text:
    Omar FLETCHER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-231.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2008.
    Omar Fletcher, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   WELLS, Judge.

The defendant seeks a petition for writ of mandamus, compelling the lower court to hold a hearing and to rule on his post-conviction motion filed almost nineteen months ago. We grant the petition and issue the writ. See Johnson v. State, 938 So.2d 639, 640 (Fla. 5th DCA 2006) (“Mandamus lies to compel a trial court to rule on a motion or petition after a reasonable time.”).

The defendant filed a post-conviction motion under Florida Rule of Criminal Procedure 3.850 on July 13, 2006. The trial court set the motion for a hearing in August 2006, which was then re-set six more times between then and April 2007, only to be postponed again. On May 9, 2007, the defendant filed a petition for writ of mandamus in this court to compel the lower court to rule on his motion. However, upon the State’s representation that the motion was set for hearing on June 29, 2007, the petition was denied. The matter was not heard in June 2007, but was re-set another twelve times between July 2007 and January 2008. Because the motion has still not been heard, the defendant filed a second petition for writ of mandamus in this court. According to the criminal court docket, the motion is now set for hearing on February 29, 2008.

The petition for writ of mandamus is granted. The trial court shall hear and rule upon the post-conviction motion at the February 29, 2008 hearing, and provide this court a copy of the order thereon.

Petition granted; writ issued. This opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.


author: LAWSON, J.

text:
    Martin A. HERING, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2830.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.

      Christopher L. Smith, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Martin A. Hering appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion as legally insufficient. We are sympathetic to the fact that it is difficult to ferret out the relevant factual allegations from Hering’s long, rambling motion, and to relate those allegations to Hering’s claims for postcon-viction relief. However, we find that Her-ing’s motion states two facially sufficient claims, and therefore reverse the summary denial.

Hering alleges that his trial counsel failed to communicate a favorable plea offer from the trial judge; mistakenly told him that he faced a minimum guidelines sentence of 76 months in prison, when he scored only 34 months; failed to inform him that he faced possible sentencing as a PRR; and, made other omissions that caused him to incorrectly assess his chances for success at trial. Much later in his motion, Hering also alleges that he would have accepted the favorable plea offer and received a much more favorable sentence, but for the inadequate communication from his counsel. These allegations, though scattered throughout various sections in Hering’s forty-five-page motion, state a facially sufficient claim. See, e.g., Mathis v. State, 848 So.2d 1207 (Fla. 1st DCA 2003).

Second, Hering claims that his trial counsel was ineffective for failing to object to fingerprint evidence that was produced at trial without prior disclosure in discovery. Hering alleges that if his counsel had objected to the State’s prejudicial discovery violation, the fingerprint evidence would have been excluded from trial and he would have been acquitted. Additional details, explaining the significance of the evidence and circumstances of the alleged discovery violation, are also included in Hering’s motion. This claim should also have been considered on the merits. See generally, Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Therefore, we reverse with directions that the trial court address the merits of these two claims. To the extent that Herring attempted to state any other claims for relief, we could not discern them either. Therefore, we affirm the trial court’s summary denial as to any additional claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PALMER, C.J., and GRIFFIN, J., concur.


author: ROTHENBERG, J.

text:
    William LUCKY, Petitioner, v. Timothy RYAN, Director, et al., Respondent.
    No. 3D08-265.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2008.
    Harold Long Jr., Miami, for petitioner.
    Gary S. Glasser, for respondent Barbara Lucky.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

Based upon the record before us, which does not include the transcript or a written order holding the husband in civil contempt, we grant the husband’s petition for writ of habeas corpus and order his immediate release, as it appears that the trial court failed to notify the husband that he would be facing an allegation of civil contempt. See generally Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000) (“While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard.”) (citations omitted).

Petition for writ of habeas corpus granted. This opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.


author: SILBERMAN, Judge.

text:
    AMERICAN HOME ASSURANCE COMPANY, Petitioner, v. John K. VREELAND, Administrator Ad Litem for the Estate of Jose Martinez and Personal Representative of the Estate of Jose Martinez, Deceased; Danny Ferrer d/b/a Ferrer Aviation; Danny Ferrer; Aerolease of America, Inc.; Biometric Science Foundation, LLC; Linda Palas, as Personal Representative of the Estate of Donald Pa-las; Air America, Inc.; Aerobanc of America; and Skyblue Air, Inc., Respondents.
    No. 2D07-3357.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.

      Gregory P. Sreenan of Sreenan & Associates, P.A., Miami, for Petitioner.
    Bill Wagner of Wagner, Vaughan, McLaughlin & Brennan, P.A., Tampa, for Respondent John K. Vreeland.
    Edward Curtis of Tripp Scott, PA, Fort Lauderdale, for Respondent Aerolease of America, Inc.
    No appearance for remaining Respondents.
   SILBERMAN, Judge.

American Home Assurance Company, Intervenor below, filed a declaratory judgment action regarding aircraft insurance coverage against Aerolease of America, Inc., and other parties. American Home seeks certiorari review of the trial court’s order allowing Aerolease to take the deposition of American Home’s corporate representative and requiring American Home to produce documents at the deposition. Because the trial court’s order is overly broad, we grant the petition, quash the order, and remand for further proceedings.

American Home issued an aircraft insurance policy to Danny Ferrer and Biometric Science Foundation, LLC. The policy provided liability and physical damage coverage for an aircraft that was involved in a crash on January 14, 2005. A breach of warranty endorsement to the policy regarding physical damage coverage lists Aerolease as the lienholder of the aircraft. One of the issues in the litigation is whether Aerolease is the owner or lienholder of the aircraft.

In a Notice of Taking Deposition Duces Tecum dated September 5, 2006, Aerolease sought to take the deposition of American Home’s corporate representative on issues relating to the placement of the insurance policy; American Home’s denial of coverage in this matter; and “the placement of any and all policies of aircraft insurance wherein Aerolease of America was a named insured, additional insured, omnibus insured or breach of warranty holder.” The notice also sought the production of the following documents:

1. All files related to the coverage referenced in aircraft insurance policy coverage summary page attached hereto as Exhibit A.
2. All files related to any aircraft wherein American Home Assurance procured and/or provided and/or was involved with the placement of coverage in any manner for any aircraft wherein Aerolease of America was an insured, an additional insured, an omnibus insured or breach of warranty holder.

On September 28, 2006, the trial court granted American Home’s amended motion for a protective order, quashing the Notice of Taking Deposition Duces Tecum and prohibiting the requested discovery.

On March 26, 2007, Aerolease served a motion entitled “Defendant’s Motion to Take Deposition Duces Tecum of the Underwriter of the Intervenor American Home Assurance Company.” The motion sought

an order allowing the deposition of the AMERICAN HOME ASSURANCE COMPANY underwriter with knowledge of the underwriting of this claim and to produce at that deposition, their entire file relating to the underwriting of this claim through and including the date of the mailing of the policy to Falcon Insurance Company on December 28, 2004.

The limiting date of December 28, 2004, is significant because it is a date before the claim at issue was made and before the airplane crash even occurred.

On June 18, 2007, in the order now before us for review, the trial court granted Aerolease’s motion in part and ordered as follows:

American Home Assurance Company shall produce, for deposition, the individuals) along with the documents identified in Aerolease of America, Inc.’s Notice of Taking Deposition Duces Tecum dated September 5, 2006. Said deposition shall be limited to the issue of whether Aerolease of America, Inc., is an owner or lien holder of the aircraft which is the subject of this lawsuit.

(Emphasis added.) American Home filed its petition for writ of certiorari, requesting that this court quash this order in its entirety.

The Florida Supreme Court has explained that certiorari is the appropriate remedy when a discovery order departs from the essential requirements of law, causing material injury to the petitioner throughout the remainder of the proceeding in the trial court, effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla. 1999); Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Disclosure of “cat out of the bag material” such as material that constitutes work product, trade secrets, or is otherwise protected by privilege may cause irreparable injury if disclosed. See Langston, 655 So.2d at 94. However, “the discovery of irrelevant materials does not necessarily cause irreparable harm.” First Paradee, Ltd. v. Jones, 828 So.2d 483, 485 (Fla. 2d DCA 2002) (citing Langston, 655 So.2d at 94).

Aerolease acknowledges that the June 2007 order grants it more relief than it sought in its motion to take deposition duces tecum. But Aerolease suggests that reading the order and its motion together demonstrates that it is seeking limited discovery. It states that

the discovery is limited by the motion and order to the deposition of the underwriter with corporate knowledge of whether AEROLEASE is an owner or a lien holder and the discovery of the underwriting file, with both the scope of the deposition and the production of documents limited in time to December 28, 200L

Although Aerolease may be correct that it seeks less discovery than the trial court’s order permits, because of the wording of the order we conclude that American Home is entitled to relief. The trial court’s order specifically permits the discovery that was sought in Aerolease’s September 5, 2006, notice of deposition duces tecum rather than the narrower discovery identified in Aerolease’s March 26, 2007, motion. The order does contain a sentence indicating that the deposition would be limited to the issue of whether Aero-lease is an owner or lienholder of the aircraft. However, the order does not limit the documents to be produced to those sought in the March 2007 motion, and the order does not limit the discovery to the period of time up to and including December 28, 2004, as requested in the motion.

Further, to the extent that the trial court’s order requires production of American Home’s claims files while the parties are engaged in a coverage dispute, the order causes irreparable injury by allowing discovery of material protected by the work-product privilege. See Scottsdale Ins. Co. v. Camara De Comercio Latino-Americana De Los Estados Unidos, Inc., 813 So.2d 250, 251 (Fla. 3d DCA 2002); see also GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122, 125 (Fla. 2d DCA 2006) (“When a litigant files claims for both coverage and bad faith in the same action, the insurer’s claim file is not discoverable until the issue of coverage has been resolved.”). Deposition testimony by a corporate representative on these privileged matters is likewise prohibited. See Scottsdale, 813 So.2d at 251. Thus, the trial court departed from the essential requirements of the law in allowing the discovery sought by Aerolease in its September 2006 notice, discovery that the trial court had previously disallowed, without the limitations discussed above. Accordingly, we grant the petition and quash the order of June 18, 2007. On remand, the trial court may enter an order permitting the deposition but limited, as Aerolease suggests, to the deposition of the underwriter with the corporate knowledge of whether Aerolease is an owner or a lien holder and without reference to the September 2006 notice of taking deposition duces tecum.

Regarding production of the underwriting file, Aerolease again contends that it simply seeks discovery relating to whether Aerolease is an owner or lienholder of the aircraft. On remand, the trial court may allow discovery of the underwriting file limited to documents that pertain to that issue. Also, as Aerolease recognizes, the scope of the deposition and the production of documents shall be limited in time up to and including December 28, 2004.

Finally, American Home argues that if limited discovery is permitted, its corporate representative may be still be put in the position of answering questions at a deposition that would disclose information that is protected by the attorney-client privilege. American Home expresses concern that such information would include legal theories of whether Aerolease was an owner or lienholder of the aircraft.

The Florida Rules of Civil Procedure address American Home’s concern. If questions are asked during a deposition requiring answers that would violate the attorney-client privilege, then American Home’s counsel may instruct the corporate representative not to answer. See Fla. R. Civ. P. 1.310(c) (stating that a party may instruct a deponent not to answer “when necessary to preserve a privilege”). If this occurs, the trial court may be required to conduct an in-camera hearing to determine whether the deposition questions will elicit information protected by a privilege. See Hamilton v. Ramos, 796 So.2d 1269, 1270 (Fla. 4th DCA 2001). Similarly, to the extent that American Home contends that documents in the underwriting file may contain privileged information, the trial court may have to conduct an in-camera review.

Therefore, we grant American Home’s petition for writ of certiorari, quash the challenged discovery order, and remand for further proceedings consistent with this opinion.

Petition granted, order quashed, and case remanded.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    Erin S. SCHLAGEL, Appellant, v. Frank E. SCHLAGEL, Appellee.
    No. 2D07-504.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.

      Erin S. Schlagel, pro se.
    Dennis J. Alfonso of McClain, Alfonso, Meeker & Dunn, P.A., Dade City, for Ap-pellee.
   SILBERMAN, Judge.

Erin Schlagel (the Wife) appeals, pro se, a final judgment of dissolution of marriage. She contends that the trial court erred in imputing income to her; in failing to require Frank Schlagel (the Husband) to pay permanent, periodic alimony; and in valuing and distributing the marital assets. We affirm the imputation of income but reverse for the trial court to award at least nominal, permanent, periodic alimony. We affirm the remainder of the final judgment, including the equitable distribution, without discussion.

The parties had a long-term marriage of over twenty-one years. They have one son, who was nineteen years old and in college at the time of the final hearing. The record supports the trial court’s findings as to the Husband’s 2005 gross annual income of $69,500 and that the parties had a lifestyle that was “reasonably modest, and by no means lavish.” At the time of the final hearing, the Husband was forty-six years old and a radiation therapist. The Wife was forty-nine years old and was unemployed. She is Turkish but attended college and law school in the United States, receiving both her undergraduate and law school degrees. The court found that the parties “appeared physically healthy and able to work.” The court recognized that the Wife testified that she suffered from depression, but the court noted that she had not put on any evidence that the condition was debilitating or would adversely impact her ability to function socially or to work.

The Wife took care of the parties’ son during the marriage, but she had worked outside the home. From 1994 to 1998 her income ranged from a low of $12,226 to a high of $26,683. In 1999, when the parties’ son was approximately twelve years old, the Wife decided to attend law school in Mississippi, where the parties were residing at the time. The Wife graduated from law school in 2002, and the parties moved to Florida. The Wife testified that she unsuccessfully attempted the Florida Bar Exam four times and gave up on the idea of being a lawyer. She has had minimal employment since 2000.

The Wife sought $3000 per month in permanent, periodic alimony and presented evidence that her monthly expenses were $2555, not including a mortgage or rent payment. The Husband was making the mortgage payments on the marital home, and the Wife provided no evidence of what her housing costs would be if she moved from the marital home. The Husband testified that he was renting an apartment for $450 per month. Because the Wife presented no evidence on housing costs, the court used the Husband’s housing cost of $450 and added that to the $2555 to determine the amount of the Wife’s need.

The parties stipulated that they would introduce into evidence the report of the Husband’s vocational expert, Stephen Cooley, without having him testify at the final hearing. The trial court relied on the vocational report to impute income to the Wife. The trial court’s detailed oral findings reflect that the court rejected the projections in the report as to income that the Wife could earn from career opportunities that were available if she were licensed by the Florida Bar. Instead, the court accepted the report’s conclusions regarding career opportunities available to a person with a law degree but not Florida Bar licensure. The report included a local labor market survey that reflected various employment options that did not require admission to the Florida Bar as a precondition to employment. The court noted several specific jobs in the local market that the report cited, such as a legal assistant, legal recruiter, and a paralegal performing specialized legal research to aid attorneys in complex eases. The report reflected salaries for these local positions ranging from $25,000 to $55,848.

The Wife testified that she cannot get a job and that she is subject to discrimination because she is Turkish. However, at the January 2007 final hearing, she admitted that she had not applied for any jobs in the past six months and that she had not followed up on any of the leads in the vocational report. In fact, the Wife acknowledged that she had not attempted to obtain any employment since March 2005.

Based on the evidence presented, the trial court took the approximate average of the salaries for positions in the local market contained in the vocational report and imputed $40,000 annual income to the Wife. The court denied the Wife’s request for permanent alimony. It gave the parties one year to attempt to sell the marital residence and ordered the Husband to pay the mortgages and association fees until the residence was sold. One-half of those payments would constitute bridge-the-gap alimony to the Wife. The court ordered the Husband to pay $175 per month for one year following the sale of the residence as additional bridge-the-gap alimony. Finally, the court awarded as lump-sum alimony mortgage payments that the Husband had previously made of $88,000 and an automobile worth $2500.

The standard of review concerning a trial court’s imputation of income is whether competent, substantial evidence supports the trial court’s decision. Fitzgerald v. Fitzgerald, 912 So.2d 363, 368 (Fla. 2d DCA 2005); Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). Here, the parties stipulated to the vocational expert’s report being admitted into evidence without his testimony at the final hearing. The report contains competent, substantial evidence that employment is available in the local market for a person with the Wife’s qualifications and that the average pay is $40,000. In Fitzgerald, where the wife had an earning history of up to $57,000 per year, this court determined that a vocational expert’s testimony was competent, substantial evidence that the wife could earn the imputed amount of $40,900. 912 So.2d at 368.

In Stewart v. Rich, 664 So.2d 1145, 1148 (Fla. 4th DCA 1995), the court recognized that “under certain circumstances a trial court may impute income to one spouse in the context of an award of alimony but the decision to remain unemployed or underemployed must be voluntary.” In Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991), this court explained as follows:

Before imputing income, the court must determine whether the individual’s underemployment resulted through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. The court must consider not only recent work history but also occupational qualifications and prevailing earnings.

The Wife relies upon Hinton, in which this court stated, “As a general rule, where we have upheld the trial courts’ imputation of income, the spouse had a track record of having earned the imputed amount.” 725 So.2d at 1157. This court agreed “with the Fourth District’s holding in Stein v. Stein, 701 So.2d 381, 381 (Fla. 4th DCA 1997), that ‘income may not be imputed at a level which the former spouse has never earned, absent special circumstances.’ ” 725 So.2d at 1157. Here, the trial court was aware that the Wife’s recent work history showed minimal earnings, but the Wife had obtained a law degree toward the end of the marriage. The Wife furthered her education and developed new skills, and the trial court considered the Wife’s occupational qualifications and prevailing earnings. In Stewart, which this court cited in Hinton, the Fourth District reversed an imputation of $24,000 in income to a spouse who had recently obtained her law degree and license to practice law. The court recognized that the former wife had no track record of earnings. However, the Stewart court explained, “Our concern is not with the decision to modify [alimony] or the amount imputed, but with the trial court’s decision to impute income of $2,000 per month to the former wife, effective immediately.” 664 So.2d at 1148. The court stated that “the trial court should have provided a reasonable period before implementing the modification to provide the former wife with an opportunity to search out available employment opportunities in the legal field.” Id. at 1149. The court further stated that “[a]fter a reasonable period of time, the burden would then be on the former wife to show that she is unemployed or underemployed as a result of any number of factors unrelated to her own efforts to secure employment, including her state of health or the realities of the job market.” Id.

In the present case, the trial court found, based on competent, substantial evidence, that the Wife failed to use her best efforts to secure employment. In fact, it is undisputed that between the time of the parties’ separation in March 2006 and the final hearing in January 2007, the Wife made no effort to secure employment, despite the leads provided in the vocational expert’s report of August 2006. Thus, we conclude that the trial court had competent, substantial evidence before it to impute income of $40,000 to the Wife.

Regarding alimony, in the context of a long-term marriage there is an initial presumption in favor of permanent, periodic alimony. Schomburg v. Schomburg, 845 So.2d 257, 258 (Fla. 2d DCA 2003). The primary factors for the trial court to consider are the needs of one spouse and the ability of the other spouse to pay. Hann v. Hann, 629 So.2d 918, 920 (Fla. 2d DCA 1993). In determining need, the trial court was obligated to, and did, consider the factors in section 61.08(2), Florida Statutes (2005), as evidenced in the trial court’s oral findings and written judgment. A trial court’s decision on whether permanent, periodic alimony is appropriate is subject to an abuse of discretion standard of review. See Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992).

Under the circumstances of this case, we conclude that the trial court abused its discretion in not awarding at least a nominal amount of permanent, periodic alimony to the Wife. See Nourse v. Nourse, 948 So.2d 903, 904 (Fla. 2d DCA 2007) (concluding “that the historic incomes of the parties, the length of the marriage, and the wife’s potential future needs require an award of at least a nominal amount of permanent alimony”). In Nourse, the trial court awarded only bridge-the-gap alimony. This court determined that an award of nominal permanent alimony “will permit the wife to petition the trial court to pursue a future increase in permanent alimony should she continue to be unable to work” and that “it will preserve the jurisdiction of the trial court to revisit the matter as the parties go on with their new fives.” Id.

Similarly, the award of a nominal amount of permanent alimony here will allow the trial court to increase the alimony award should the Wife find that she is unable to secure employment, after using her best efforts, in the imputed amount. Thus, we reverse the complete denial of permanent, periodic alimony and remand for the trial court to award at least nominal alimony of $1 per year in this long-term marriage. On remand, the court may determine whether more than a nominal amount of permanent alimony is appropriate, taking into account the circumstances at the time of remand, such as the Wife’s current employment status and earnings.

Affirmed in part, reversed in part, and remanded.

STRINGER and WALLACE, JJ., Concur.

      . The trial court noted that law school enhanced the Wife’s skills for analytical thinking. The Wife represented herself at the final hearing and on appeal.


author: ALTENBERND, Judge.

text:
    David A. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1807.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.
    See also, 946 So.2d 30.
    David A. Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

David A. Butler appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The “sentence” Mr. Butler seeks to correct actually consists of handwritten amendments to his initial sentencing documents, apparently made by nonjudicial government employees without notice to Mr. Butler. The amendments changed the documents to indicate that the sentence was to be served consecutively to sentences in another case, rather than concurrently. Although this amendment may be the sentence intended by the judge who orally imposed it, we are not convinced that this document is actually a “sentence.” Nevertheless, it appears that the Department of Corrections is treating it as such. We therefore reverse and remand for further proceedings.

Mr. Butler appeared for sentencing in case number CRC98-10959CFANO-D and case number CRC02-02681CFANO-D on October 25, 2002. Our record contains a transcript of that hearing at which Judge Philip J. Federico presided. Assuming the transcript is accurate, and we have no reason to doubt its accuracy, Mr. Butler received four five-year sentences of incarceration. Three of the sentences were imposed in case number CRC98-10959CFANO-D, with the second sentence being concurrent with the first and the third sentence being consecutive, so that the total sentence imposed was ten years’ imprisonment. A final sentence was imposed in case number CRC02-02681CFA-NO-D, which was announced as a five-year sentence consecutive to the sentences in case number CRC98-10959CFANO-D. Thus, the sentences, as announced in the transcript, totaled fifteen years’ imprisonment. However, the written sentence prepared after that hearing in case number CRC02-02681CFANO-D provided that the five-year sentence in that case would run concurrently with the sentences in case number CRC98-10959CFANO-D.

In 2004, Mr. Butler filed a postconviction motion in case number CRC98-10959CFAMO-D challenging the consecutive sentences in that case, arguing that they were improper because the crimes occurred in a continuous criminal transaction. See Butler v. State, 917 So.2d 244 (Fla. 2d DCA 2005) (reversing the summary denial of this claim as untimely and remanding for further proceedings). That motion was ultimately denied by the trial court on the merits, and that order was affirmed by this court. Butler v. State, 931 So.2d 910 (Fla. 2d DCA 2006) (table decision). It appears these proceedings did not challenge or involve the sentence in case number CRC02-02681CFANO-D.

On January 25, 2006, however, for reasons not explained by our limited record, “JMH,” who apparently is an employee in the office of the clerk of court, scratched through the typed word “concurrent” in Mr. Butler’s sentence in CRC02-02681CFANO-D and inserted the handwritten word “consecutive.” Another person whose initials are difficult to read wrote “record to amend cons and concurrent counts and cases” on the face of the judgment. It is these changes in the written judgment and sentence that Mr. Butler is attempting to challenge with his motion to correct an illegal sentence.

The circuit court denied Mr. Butler’s motion, claiming that the amendment was merely a correction of a scrivener’s error. The judge who denied this motion was not the sentencing judge and simply relied on the transcript.

We are concerned because the changes in Mr. Butler’s sentence were apparently made by nonjudicial government employees without any motion from the State and without notice or opportunity to be heard afforded to Mr. Butler. He was entitled to representation by counsel when his sentence was entered. If these handwritten notations are deemed to be an amended sentence, he was probably entitled to representation by counsel when the amendments were entered and should have been informed of a right to file a direct appeal from the amended sentence.

The written sentence was entered on October 25, 2002. Mr. Butler received 252 days of jail credit in that sentence, and that credit was not altered by the handwritten changes. It is possible that Mr. Butler is correct in maintaining that he has fully served the sentence delivered to the Department of Corrections with his commitment papers and that under these circumstances the sentence could not be legally transformed into a consecutive sentence by a clerk in 2006 or by a judge in 2008. We candidly are not certain whether this odd set of facts fits within the usual definition of an illegal sentence. We conclude, however, that the trial court’s order does not resolve serious due process issues that Mr. Butler timely raised when he became aware of the purported amendment to his sentence. Accordingly, we reverse the order on appeal and remand for further proceedings.

Reversed and remanded.

WHATLEY and SALCINES, JJ., Concur.

      . Compare Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007), with United States v. Easterling, 157 F.3d 1220 (10th. Cir.1998). We do not decide this issue at this time because the circuit court has not had the opportunity to address it.

      . At this court’s request, the response from the State provided copies of the sentences in case number CRC98-10959CFAMO-D. These sentences show a similar amendment on January 25, 2006, that entirely eliminated the section on consecutive/concurrent sentencing. The legality and effect, if any, of this amendment is unclear to this court, but it may be a matter that the trial court should consider on remand.


text:
    Larry D. MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1067.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Larry D. Morales entered a guilty plea to home-invasion robbery and contends on appeal that the trial court erred by denying, without a hearing, his oral motion to withdraw plea before sentencing. We reverse and remand for a hearing on his motion to withdraw plea.

The State charged Morales under section 812.135(2)(a), Florida Statutes (2006), with home-invasion robbery with a firearm, a first-degree felony punishable by a term of years not exceeding life imprisonment. On February 21, 2007, the day of trial, Morales accepted the State’s plea offer. The plea form indicates that he was entering a plea to “Robbery (Home Invasion; > $300; Deadly Weapon)” with a maximum penalty of thirty years. The form indicates that the parties agreed to a ten-year prison sentence, and a discussion during the plea colloquy confirmed that the plea was for the reduced charge of home-invasion robbery “involving a deadly weapon not a firearm.” However, the prosecutor and the trial court referred to section 812.135(2)(b), which addresses home-invasion robbery with a weapon rather than a firearm or a deadly weapon.

The scoresheet describes the crime as home-invasion robbery and cites to section 812.135, but it makes no reference to the use of any firearm, deadly weapon, or weapon. Later in the hearing, the State advised the trial court that the applicable statute was section 812.135(2)(a), not 812.135(2)(b). Thus, there appeared to be some confusion regarding which offense in section 812.135(2) was the subject of the parties’ plea agreement.

The trial court agreed to delay sentencing for one week, and on March 1, 2007, the parties appeared for sentencing. At the beginning of the hearing defense eoun-sel stated, “Well, Your Honor I’ve spoken to Mr. Morales and we’ve discussed this at length, and he at this time wants to withdraw his plea.” The trial court immediately responded, “I knew that was coming. I knew it was coming. I’ll deny the request. What was the agreed deal?” The trial court then told defense counsel to “[t]ake it up with the District Court” and proceeded to sentence Morales to the negotiated ten-year sentence. The court directed that a note be placed on the docket to reflect “that the defendant made an oral motion to withdraw plea and Court denied without hearing. He can take it up on appeal.”

Florida Rule of Criminal Procedure 3.170(f) provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn[.]” Here, Morales made an oral motion to withdraw his plea before the court imposed a sentence.

J.D.F. v. State, 870 So.2d 86 (Fla. 2d DCA 2003), involved similar circumstances. After J.D.F. entered negotiated pleas to two charges, the trial court conducted a separate disposition hearing. At that hearing, J.D.F. sought to withdraw his pleas. The trial court immediately denied the motion and “added that if J.D.F. wished to address the issue on appeal, he would appoint separate counsel for that purpose.” Id. at 87. This court vacated the juvenile commitment order and remanded for the trial court to conduct a hearing on J.D.F.’s motion to withdraw pleas. We stated that “the trial court erred in immediately denying J.D.F.’s motion to withdraw his pleas without giving him an opportunity to present argument and be heard.” Id.

Contrary to the State’s argument, the fact that the trial court delayed Morales’ sentencing for one week at his request is not a significant distinction that would render J.D.F. inapplicable here. Rule 3.170(f) allows a defendant to move to withdraw his plea before the court imposes a sentence, and Morales did just that.

In J.D.F. this court relied on Gunn v. State, 643 So.2d 677, 679 (Fla. 4th DCA 1994). There, Gunn “was improperly cut off from attempting to argue his motion because as soon as Gunn said that he wanted to make a motion to withdraw his pleas, the court promptly stated, ‘[mjotion denied’ and proceeded to sentencing.” Id. at 679. The Fourth District determined that “as a matter of fundamental due process, Gunn should have been given the opportunity to present argument and be heard on the motion to withdraw his guilty pleas.” Id.

Similarly, the trial court should have given Morales the opportunity to present argument and be heard on his motion to withdraw his guilty plea before sentencing. Therefore, we reverse and vacate Morales’ sentence, and we remand for the trial court to conduct a hearing on his motion to withdraw plea.

Reversed and remanded.

DAVIS, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Section 812.135(2)(a) applies to home-invasion robbery with "a firearm or other deadly weapon.”

      . We note that the written judgment reflects the conviction is pursuant to section 812.135(2)(c), which is home-invasion robbery with no weapon, a first-degree felony.


author: FULMER, Judge.

text:
    Jennifer L. ARNSPERGER, Appellant/Cross-Appellee, v. C. Brady ARNSPERGER, Appellee/Cross-Appellant.
    No. 2D07-662.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.
    Debra M. Salisbury of Law Office of Debra M. Salisbury, P.A., Sarasota, for Appellant/Cross-Appellee.

      James E. Rawe of Law Office of James E. Rawe, P.A., Bradenton, for Appel-lee/Cross-Appellant.
   FULMER, Judge.

Jennifer L. Arnsperger (the Wife) asked the circuit court to enforce the terms of a marital settlement agreement between her and her husband C. Brady Arnsperger (the Husband). The court found the agreement enforceable but declined to award attorney’s fees to the Wife. The Wife’s appeal challenges the court’s failure to award her attorney’s fees. The Husband has cross-appealed, challenging the court’s determination of the validity and enforceability of the agreement. Although the trial court’s findings are somewhat confusing, particularly in light of the ultimate legal conclusions reached, we must nevertheless affirm.

The Wife sought attorney’s fees based on a default provision in the marital settlement agreement. However, the wife’s motion to enforce the agreement did not allege any default, and the trial court’s order determines only the validity of the marital settlement agreement. Therefore, we affirm the denial of fees because the attorney’s fee provision relied on by the Wife does not support her claim.

On the Husband’s cross-appeal, we affirm because our review must be confined to the arguments presented by the cross-appellant in his brief, none of which support a reversal.

Affirmed.

WHATLEY and SILBERMAN, JJ., Concur.


author: STONE, J.

text:
    Lance L. DOE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1307.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION TO CLARIFY

STONE, J.

We grant Doe’s motion to clarify, withdraw our opinion of January 2, 2008, and substitute the following:

Doe appeals following a nolo con-tendere plea in which he reserved his right to appeal the denial of a motion to suppress. The sole issue is whether the arresting officer had an objectively reasonable suspicion that a crime had occurred, or was about to occur, when he stopped Doe’s vehicle. We reverse.

At the hearing on the motion, Officer Martin testified that he and another officer were conducting a foot patrol of the Boardwalk apartment complex when his attention was drawn to a vehicle because it was parked in an area that did not have marked spaces. As the officers approached, the car began to drive away.

Martin says that he stopped the vehicle because it was a high crime area, and he was under the impression that a city ordinance required parking in a designated parking spot. Martin did not cite Doe for any city ordinance violation, and the record reflects that there was no city ordinance that might be applicable.

To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003). Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances. Id.

The state contends that even if there was not a valid ordinance violation basis for the stop, the denial of the motion to suppress should be affirmed because the stop was justified by a reasonable suspicion of criminal activity where, upon the officers’ approach, the car drove away from an area known for drug deals. It is undisputed that there was nothing out of the ordinary in the method and manner of the vehicle pulling away before it was stopped at gunpoint.

In Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that an individual’s unprovoked flight from a high-crime area upon the approach of a police vehicle gave rise to an objectively reasonable suspicion of criminal activity and, therefore, justified a Terry stop of the individual. This case, however, is distinguishable. In Wardlow, police officers patrolling a high crime neighborhood known for drug trafficking observed the defendant standing next to a building and holding an opaque bag. When the defendant “looked in the direction of the officers,” he turned and ran in the other direction.

In Paff v. State, 884 So.2d 271 (Fla. 2d DCA 2004), a deputy pulled into a gas station and noticed two cars parked in a shadowy area, each facing an opposite direction, with the driver’s side windows aligned. This was not a designated parking area, and the ears were obstructing traffic flow through the open gas station. Both cars then left the gas station. Drug deals commonly occurred in this parking lot. He immediately performed a Terry stop of Mr. Paff s vehicle and detained it to await the arrival of a police dog.

The circuit court denied Paff s motion to suppress on the authority of Wardlow.

The Second District, however, recognized that:

Flight on foot is distinctly different than flight in a car. When “headlong flight” occurs on foot, the defendant’s intent to elude an officer may be clear, even though no law is [known to be] broken. When “flight” occurs in a vehicle, the vehicle often conceals the emotions of its occupants and it is more difficult to determine that such a defendant is demonstrating “nervous, evasive behavior,” or is intending to engage in “headlong” flight. Wardlow, 528 U.S. at 124, 120 S.Ct. 673, 145 L.Ed.2d 570. A car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a pedestrian does not invoke the rule of Wardlow. See, e.g., Lee v. State, 868 So.2d 577 (Fla. 4th DCA 2004) (refusing to apply Wardlow to justify a stop when defendant was part of a crowd that merely “dispersed” upon approach of law enforcement and defendant was simply walking quickly).

884 So.2d at 273.

Here, as in Paff, the vehicle simply drove away. As in Paff, there was nothing otherwise suspicious in Doe’s behavior. As the court recognized in Paff, under such circumstances, the officer is making the stop based on a “mere hunch, and not a reasonable suspicion.” Id. at 274; see also Cunningham v. State, 884 So.2d 1121 (Fla. 2d DCA 2004).

We have considered State v. Wynn, 948 So.2d 945 (Fla. 5th DCA 2007), and deem it distinguishable. In Wynn, a uniformed officer was on foot patrolling a parking lot known for drug activity and observed Wynn crouching down in his truck. They then made “eye contact,” whereupon Wynn took off at a “high rate of speed,” with dirt “kicking up” and tires “squealing”. Id. at 947. We deem these distinctions significant, as the facts in Wynn evidence flight, whereas here, as in Paff, the mere act of driving away, even with knowledge of the officer’s approach, is no more likely to signify flight than walking away.

Therefore, we conclude that Doe’s conduct did not raise reasonable suspicion of criminal activity sufficient to justify a Terry stop. The judgment is reversed with directions to discharge Doe.

STEVENSON and HAZOURI, JJ., concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    LIGGETT GROUP, INC., Appellant, v. Beverly DAVIS, Appellee.
    No. 4D04-3811.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.

      Alvin B. Davis, P.A., of Squire, Sanders & Dempsey, Miami, Kelly A. Luther of Clarke Silverglate & Campbell, P.A., and Aaron H. Marks, Leonard A. Feiwus, and Julie R. Fischer of Kasowitz, Benson, Torres & Friedman, LLP, appellant.
    Daniel F. O’Shea and Angel M. Reyes of Reyes, O’Shea & Coloca, P.A., Coral Gables, for appellee.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

We grant Liggett Group, Inc.’s motion for certification and certify the following as questions of great public importance:

1. Is a plaintiff required to establish an alternative safer design in order to prevail on a design defect claim for an inherently dangerous product?

2. Should Florida adopt the Restatement (Third) of Torts for design defect cases?

WARNER, GROSS, JJ., and SCOLA, JACQUELINE HOGAN, Associate Judge, concur.