text:
    Richard WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-911.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Richard Williams appeals his conviction for second-degree murder. We affirm but write to explain why the admission of Williams’ “confession” was harmless error in this case.

On the evening of May 20, 2003, Tampa police officers responded to an apartment after a call from a neighbor concerning a disturbance and the sound of gunshots. Inside the apartment, they found Constance Culbreth stabbed and shot. The police recovered several spent bullet casings from Culbreth’s apartment and from the apartment below. Culbreth subsequently died of her injuries, and the police developed her live-in boyfriend, Richard Williams, as the potential perpetrator of the crime.

On the morning of May 21, 2003, the police received a call that someone matching Williams’ description was behind a Walgreens drug store. Officer Downes responded to the Walgreens and found a man matching Williams’ description curled up on his side beside a tree in the parking lot. Because he did not know whether the man was armed, Downes pointed his gun at the man and ordered him to get on his stomach. The man made eye contact with Downes and then blurted out, “I got my gun on me.” Downes was able to peaceably secure the man, who turned out to be Williams, and a gun was found on the ground where Williams had been lying. The police took the gun into evidence.

Williams was subsequently transported to police headquarters, where he was read the Tampa Police Department’s standard Miranda warnings. Williams was also given a Miranda rights form, which contained the same warning language as the oral warnings previously given to him. Williams signed the Miranda form indicating that he understood his rights. Williams then waived his rights and agreed to speak with the officers.

Shortly thereafter, Detective John Tin-dall brought the gun recovered from beneath Williams into the interview room and asked Williams whether the gun was his. Williams responded, “Yeah, that’s mine.” Tindall then asked Williams whether it was “the firearm you used to shoot Ms. Culbreth with?” Williams looked at Tindall and nodded his head in the affirmative.

No other statements made by Williams were offered into evidence at trial. Instead, the State sought to establish its case through testimony that placed Williams and Culbreth alone in their apartment on the night of the murder and forensic evidence that established that the bullets recovered from Culbreth’s body and the bullet casings recovered from her apartment were fired from the gun that Williams had with him when he was arrested. Based on this evidence, the jury found Williams guilty of second-degree murder with a firearm.

In this appeal, Williams argues that (1) the statements he made during the police interview should have been suppressed because he unequivocally invoked his right to remain silent, (2) the statements he made during a police interview should have been suppressed because the Miranda warnings he received did not sufficiently inform him of his right to have an attorney present during questioning, and (3) certain physical evidence should have been suppressed because it was obtained following an illegal arrest. We affirm on issues (1) and (3) without comment. We write solely to explain our affirmance on issue (2).

This court recently addressed the issue of whether the standard Miranda warnings given by the Tampa Police Department sufficiently advised a defendant of the right to have an attorney present during police questioning. See M.A.B. v. State, 957 So.2d 1219 (Fla. 2d DCA 2007) (en banc), review granted, 962 So.2d 337 (Fla.2007). In M.A.B., upon en bane consideration, this court was evenly divided as to whether the warnings were legally sufficient. Id. at 1220. As a result, pursuant to Florida Rule of Appellate Procedure 9.331(a), the trial court’s ruling in that case was affirmed. Id. This court also certified the question of the legal sufficiency of these warnings as one of great public importance. Id.

Shortly thereafter, the same issue regarding the sufficiency of the standard Tampa Police Department Miranda warnings was addressed by a panel of this court in Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007), review granted, 973 So.2d 1123 (Fla.2008). In Powell, the majority held that the Tampa Police Department’s standard Miranda warnings were insufficient to comply with the requirements of Miranda. 969 So.2d at 1063. This decision in Powell constitutes binding precedent in this district. Thus, because the Miranda warnings given to Williams in this case were identical to the warnings at issue in Powell, we are compelled to hold that the Miranda warnings given in this case were legally insufficient.

That holding, however, does not end our analysis. Despite the error in failing to suppress Williams’ statements, we need not reverse if we can conclude beyond a reasonable doubt that admission of the statement was harmless. Caso v. State, 524 So.2d 422, 425 (Fla.1988) (“The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis.”); Mitchell v. State, 32 Fla. L. Weekly D2958, — So.2d -, 2007 WL 4355200 (Fla. 2d DCA Dec. 14, 2007). To establish harmless error, the State must prove beyond a reasonable doubt that the error did not contribute to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). “Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id.; see also Crumbley v. State, 876 So.2d 599, 602 (Fla. 5th DCA 2004).

Here, after a thorough review of the record, we conclude that “there is no reasonable possibility that the error contributed to [Williams’] conviction.” DiGuilio, 491 So.2d at 1135. The improper “confession” in question consisted of Williams’ mere head nod in response to the question, “Is this the firearm you used to shoot [the victim] with?” The State only briefly argued the effect of this acknowledgement during its closing argument. Through other evidence, the State established that Williams and Culbreth were alone in their apartment when neighbors heard a struggle followed by gunshots from inside the apartment. When the police arrived, Cul-breth was found alone in the apartment mortally wounded by gunshots and stab wounds. An empty gun case was found in the bedroom. Williams’ car was still parked at the apartment, but he was gone. He was found early the next morning within walking distance of the apartment and in possession of a firearm. Upon seeing a police officer, Williams spontaneously volunteered, “I got my gun on me,” and the officers recovered the firearm from beneath Williams’ body. Forensic evidence established that the bullets and bullet casings recovered from the murder scene were fired from the firearm found in Williams’ possession. In fight of all of this evidence, there is simply no reasonable possibility that Williams’ single head nod contributed to his conviction.

The recent supreme court case of Cuervo v. State, 967 So.2d 155 (Fla.2007), does not compel a different result because the facts of Cuervo are distinguishable. Like Williams, Cuervo was charged with first-degree murder. The confrontation between Cuervo and the victim occurred in the victim’s car with no witnesses present. Id. at 167. However, unlike in this case, the State presented no forensic evidence connecting Cuervo to the crime. Id. Further, Cuervo did not make any spontaneous statements to the police. Id. After the trial court denied Cuervo’s motion to suppress, Cuervo relied on the statements he made to the officers concerning his mental state to challenge the premeditation element of the first-degree murder charge. Id. In finding that the error in refusing to suppress Cuervo’s statements was not harmless, the supreme court explained that “the defense might have pursued a different theory of defense had the trial court granted its motion to suppress [Cuervo’s] confession.” Id.

Here, there is nothing in the record to support an argument that Williams might have pursued a different theory of defense had the trial court granted his motion to suppress. At the close of the State’s case, Williams successfully obtained a judgment of acquittal on the charge of first-degree murder, and the case was submitted to the jury as a second-degree murder case. Thus, the issue of premeditation was not before the jury. Williams’ theory of defense was that the State had not presented any evidence to establish that he acted with a depraved mind or with evil intent. He argued that the evidence of a struggle in the apartment combined with the fact that Culbreth was a much larger person than Williams raised reasonable doubts as to what happened in the minutes before the shooting. Based on this, Williams argued that the State had simply failed to prove its case for second-degree murder, particularly in fight of the elements of justifiable and excusable homicide. Thus, nothing about Williams’ defense flowed from his acknowledgement that he shot the victim.

In view of the other evidence presented at trial, Williams’ head nod played such a minor role in his defense that we conclude that any error in its admission was harmless beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

CANADY and LaROSE, JJ„ Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Dwauneario S. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5493.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    James Marion Moorman, Public Defender, and Bruno F. DeZayas, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Dwauneario Brown challenges his conviction for first-degree murder, raising five issues. We affirm the conviction and sentence and comment only on his assertion that he was denied his right to the first and last closing argument.

Brown argues that the trial court erred in allowing the State to have first and last closing argument because the statute authorizing this procedure, section 918.19, Florida Statutes (2006), which became effective October 1, 2006, was unconstitutional and the new procedure was not yet adopted as a rule by the Florida Supreme Court at the time of trial (October 31 through November 2, 2006).

This issue has been addressed by the First and Fourth Districts in Grice v. State, 967 So.2d 957 (Fla. 1st DCA 2007), and Taylor v. State, 969 So.2d 583 (Fla. 4th DCA 2007). In those cases, the courts concluded there was no error in denying the defendants the first and last closing argument. We aligned ourselves with the First District on this issue in Sullivan v. State, 972 So.2d 918 (Fla. 2d DCA 2007). In accord with Sullivan, we reject this claim for the reasoning expressed in Grice and Taylor.

Affirmed.

DAVIS and WALLACE, JJ., Concur.

      . Brown acknowledges that the Florida Supreme Court has since adopted the statute in amending Florida Rule of Criminal Procedure 3.250 and adopting new rule 3.381. See In re Amendments to the Fla. Rules of Criminal Procedure — Final Arguments, 957 So.2d 1164 (Fla.2007).


author: STRINGER, Judge.

text:
    Lamar BLANDIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3013.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.

      Lamar Blandin, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Lamar Blandin seeks review of the post-conviction court’s order denying his motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. Blandin argues that his trial counsel was ineffective for allowing Blan-din to enter a plea to the charge of driving while license revoked and an admission to a violation of probation based on that conduct because the offense occurred after the revocation period had expired. However, Blandin’s license remained revoked because he had never petitioned the Department to be relicensed. Accordingly, the postconviction court did not err in denying relief on this ground.

After being stopped for speeding in November 2004, Blandin was charged with driving while license revoked as a habitual traffic offender pursuant to section 322.34(5), Florida Statutes (2004). Blandin entered an open plea to the charge and an admission to a violation of probation in another case based on the same conduct. In his rule 3.850 motion, Blandin argued that trial counsel was ineffective for allowing him to enter a plea to the charge of driving while license revoked and an admission to a violation of probation based on the same conduct. Blandin asserted that his license was revoked in August 1992, and his five-year revocation period expired in August 1997. Blandin claimed he could not be convicted for driving while license revoked in 2004 because his revocation period had expired seven years earlier.

The postconviction court denied this claim after a hearing based on its finding that because Blandin had not petitioned to have his license reinstated, it was still “revoked” for purposes of section 322.34(5). On appeal, Blandin argues that the postconviction court erred in concluding that his license remained “revoked” under section 322.34(5) after the revocation period expired. Blandin argues that because section 322.34(5) does not define when a person’s license is considered “revoked,” it is ambiguous. Blandin asserts that the ambiguity should be interpreted in his favor under the rule of lenity.

Section 322.34(5) provides as follows:

Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 322.27(5) provides for the revocation of the license of a habitual traffic offender as follows:

The department shall revoke the license of any person designated a habitual offender, as set forth in s. 322.264, and such person shall not be eligible to be relicensed for a minimum of 5 years from the date of revocation, except as provided for in s. 322.271. Any person whose license is revoked may, by petition to the department, show cause why his or her license should not be revoked.

A person whose license has been revoked under section 322.27(5) may petition the Department for restoration of driving privileges “[a]t the expiration of 5 years from the date of license revocation.” § 322.331. The Department will thereafter investigate the petitioner’s qualification and fitness to drive and hold an administrative hearing to determine whether to restore driving privileges completely or on a restricted basis. Id.

There is no ambiguity in this statutory framework. Under section 322.27(5), when Blandin’s license was revoked as a habitual traffic offender in August 1992, it was revoked “for a minimum of 5 years.” After five years, Blandin was eligible to be relicensed, but relicensing was not automatic. Because Blandin never petitioned to be relicensed, the Department never investigated his qualification and fitness to drive or held an administrative hearing to determine whether to restore Blandin’s driving privileges. Thus, Blandin’s license remains “revoked” under section 322.34(5), and his conviction for driving while licensed revoked and admission to a violation of probation based on that conduct was proper.

The Third District has reached the same conclusion under similar facts in State v. Green, 747 So.2d 1007 (Fla. 3d DCA 1999). In Green, the defendant’s license was revoked as a habitual traffic offender. Id. at 1007. Over three years after the statutory revocation period expired, the defendant was charged with driving as a habitual traffic offender pursuant to section 322.34(5). The trial court granted the defendant’s motion to dismiss the charge based on the defendant’s argument that his status as a habitual traffic offender had expired when the statutory revocation period expired over three years earlier. Id. at 1007-08.

The Third District reversed, holding that the defendant’s license remained revoked because he never took affirmative steps to have it reinstated. Id. at 1008. The court explained that the defendant’s “driving privileges were terminated, not temporarily withdrawn” when his license was revoked. Id. While the defendant was eligible to have his license restored, he was required to petition the Department of Highway Safety and Motor Vehicles and subject himself to an investigation into his fitness to drive in order to do so. The court held that until the defendant took such affirmative steps, his license remained revoked. Id.

Accordingly, we conclude that the post-conviction court did not err in determining that Blandin’s license remained revoked seven years after he was eligible to be relicensed. The court properly denied Blandin’s claim that trial counsel was ineffective for allowing Blandin to enter a plea to the charge of driving while license re-yoked and to a violation of probation based on that conduct.

Affirmed.

SILBERMAN and KELLY, JJ., concur.


author: POLEN, J.

text:
    Queshia JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3822.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.

      Carey Haughwout, Public Defender, and David John McPherrin, 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.
   POLEN, J.

Appellant, Queshia Joseph, appeals a conviction for resisting with violence, asserting evidentiary and jury instruction errors below. Joseph was arrested after an altercation with police occurring while the police were arresting her brother. At trial, Joseph argued the police used excessive force in arresting her brother, leading to her involvement in the situation, and used excessive force when arresting her. As part of this defense, Joseph attempted to cross-examine all officer witnesses as to whether they had prior excessive use of force complaints filed against them. The trial court prohibited Joseph from even inquiring as to prior use of force complaints as none of the complaints filed against the officers had been verified or sustained. We find the trial court erred in limiting Joseph’s cross-examination of the officers and reverse.

“Limitation of cross-examination is subject to an abuse of discretion standard.” Moore v. State, 701 So.2d 545, 549 (Fla.1997). “A defendant should be afforded wide latitude in demonstrating bias or possible motive on the part of a witness.” Henry v. State, 688 So.2d 963, 966 (Fla. 1st DCA 1997). “[C]ase law recognizes that exploration of bias in a criminal case allows for cross-examination into an ‘officer’s use of excessive force in other cases,’ ‘[w]here there is an issue of whether or not excessive force was used by a law enforcement officer’ in the case at hand.” Rowley v. State, 939 So.2d 298, 299 (Fla. 4th DCA 2006) (quoting Michael v. State, 884 So.2d 83, 85 (Fla. 2d DCA 2004)). “The right of full cross-examination is absolute, and the denial of that right may easily constitute reversible error.” Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982).

In this case, the trial court allowed defense counsel to proffer the officers’ testimony regarding prior use of force complaints but did not allow this evidence to go to the jury on the grounds that none of the complaints had been substantiated. All but one of the officers involved in the arrest had at least one prior use of force complaint filed against them, although none of the complaints had been sustained.

The trial court abused its discretion by not allowing defense counsel to question the officer witnesses as to whether they had prior use of force complaints lodged against them. “Where there is an issue of whether or not excessive force was used by a law enforcement officer, prior investigations into the officer’s use of excessive force in other cases are relevant.” Hinojosa v. State, 857 So.2d 308, 310 (Fla. 2d DCA 2003). While the State argues that this line of questioning is allowed only where the complaints have been substantiated, we disagree.

In De la Portilla v. State, trial court allowed defense counsel to bring out the fact that the officers had claims for excessive use of force previously filed against them. 877 So.2d 871, 872-73 (Fla. 3d DCA 2004). It is clear from the facts of the case that some, if not all, of the complaints were unsubstantiated. Id. at 872. Specifically, the trial court stated: “I will allow the defense then to go into the prior instances and if what you are telling me is correct, the witness will say that they are unsubstantiated and that’s it.” Id. However, the trial court did limit defense counsel’s questioning of the officers by not allowing defense counsel to delve too deeply into the specifics of the prior complaints or investigations. Id. at 873-74.

In this case, three of the four police officers had prior use of force complaints lodged against them. Both of the officers who were directly involved with Joseph’s arrest had prior use of force complaints lodged against them. Joseph’s testimony was that she did not make any moves toward or against the officers, but rather was pushed into a trash can and onto the ground with no provocation on her part. Joseph’s two brothers who were present at the scene also attested to this. As in De la Portilla, the existence of these prior complaints should have been relayed to the jury in light of the facts of this case. See Rowley, 939 So.2d at 300 (“The existence of other complaints about an officer provide [sic] a motive to color testimony ‘to avoid another complaint which could [lead] to disciplinary action’ or another lawsuit”). At that point, the officers could testify that the complaints were unsubstantiated and further questioning regarding the complaints would cease.

Further, the trial court’s limitation was not harmless error as there was a “reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The facts of the case were such that the officers’ behavior was in question and any questioning that could have shed light on the discrepancies in testimony or the officers’ credibility should have been allowed. The defendant in this case had no prior record and her defense to the charge against her was that the officers had used excessive force in arresting her. As the jury acquitted her of one of the charges, battery of a police officer, resulting in a mixed verdict, and there was not an overwhelming amount of evidence against her which might have made this line of questioning unnecessary, we find it was error to limit the defense’s cross examination to this degree. See Antoury v. State, 943 So.2d 906, 909 (Fla. 5th DCA 2006).

We reverse the conviction on the basis of our findings above.

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


author: STEVENSON, J. STONE, J.,

text:
    STATE of Florida, Appellant, v. Taj Jevon DIXON, Appellee.
    No. 4D06-3920.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

Police approached Taj Jevon Dixon at the Amtrak train station. Ultimately, Dixon was searched, police found marijuana in his pocket and he was charged with possession. Dixon filed a motion to suppress the drugs, arguing he was stopped in the absence of reasonable suspicion and any subsequent consent to search was not voluntary. The trial court granted the motion to suppress and this appeal by the State followed. We affirm.

On July 27, 2005, narcotics detectives Camilo and Murray were working at the Amtrak station. The detectives were in plain clothes and were not there pursuant to any tip of criminal activity. The detectives observed Dixon exit a cab and proceed to the ticket booth. Detective Murray testified that, on his approach, Dixon looked at him and at the surrounding passengers and continued to do so as he exited the booth. Detective Murray and Dixon had had a prior encounter. Detective Camilo observed nothing unusual about Dixon’s behavior — only that he was a little nervous.

At this point, Detective Murray decided to make contact with Dixon. Detective Camilo testified that after Dixon exited the ticket booth, he approached Dixon from the front and Detective Murray approached him from the rear. According to Detective Camilo, Detective Murray walked past Dixon and turned to face him with the result being that the two officers were standing in front of Dixon and face-to-face with him. Detective Murray could not recall precisely how they had approached Dixon, but agreed both he and Detective Camilo were ultimately in front of Dixon and facing him. In a prior deposition, Detective Murray indicated both officers approached Dixon from the front.

The detectives showed Dixon their badges and told him they were narcotics detectives. Detective Murray asked Dixon if he was riding the train and if he could see his ticket. Dixon handed Murray the ticket and the officers examined and returned it. At one point, Detective Murray testified that after returning the ticket to Dixon, he told Dixon they were investigating drug smuggling on the trains and, at another, he indicated he advised Dixon of their investigatory activities at the outset of the encounter. In any event, after hearing this information, Dixon became very nervous and his hands began to shake. The detectives testified they then asked Dixon for consent to search his person and he responded “yeah, go ahead.” A bag of marijuana was found in Dixon’s front, right pocket.

In his motion to suppress, Dixon contended (1) that the manner in which the officers approached him was such that the contact between him and police constituted an investigatory stop absent the required reasonable suspicion — not a consensual encounter and (2) that his consent was the product of this illegal detention and not voluntary. The trial judge granted the motion to suppress, remarking that, in reaching his decision, he had considered the credibility of the officers and had concerns about the conflict in the testimony regarding how the officers approached the defendant. On appeal, the appellate court is “required to interpret the evidence and the inferences and deductions that flow from it in the light most favorable to sustaining the court’s ruling.” Mays v. State, 887 So.2d 402, 403 n. 1 (Fla. 2d DCA 2004), approved, 959 So.2d 216 (Fla.2007). Any findings of fact made by the trial court are to be afforded deference where supported by the record, but the application of the law to these facts is considered de novo. See State v. Hackett, 944 So.2d 399, 401 (Fla. 4th DCA 2006).

In this case, there was no claim by the State, nor any testimony by the officers, to the effect that the police had the reasonable suspicion of criminal activity necessary to support an investigatory stop. The validity of the officers’ search (and the admissibility of the evidence found) thus turns upon whether the contact between Dixon and the police can be characterized as a consensual encounter. “A consensual encounter is one that involves minimal police contact” and, during such an encounter, the citizen may either comply with the officer’s requests or ignore them and leave. Graham v. State, 964 So.2d 758, 761 (Fla. 4th DCA 2007). “The mere questioning of an individual, including a police request for identification, does not amount to a Fourth Amendment detention.” Id. (citing State v. Barnett, 572 So.2d 1033, 1034 (Fla. 2d DCA 1991)). “ ‘The inquiry for determining when an encounter with the police should properly be deemed a seizure is centered around whether a reasonable person would feel free ‘to disregard the police and go about his business.’ ’ ” P.W. v. State, 965 So.2d 1197, 1199 (Fla. 4th DCA 2007) (quoting O.A. v. State, 754 So.2d 717, 720 (Fla. 4th DCA 1998) (citation omitted)). In making such an inquiry, the courts should consider the “totality of the circumstances.” Id. “Some factors to consider that would indicate a seizure would be the ‘threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). An officer’s request to search an individual does not, alone, convert a consensual encounter into an investigatory stop. Id.

Here, there was testimony before the trial court demonstrating that Dixon was aware of the presence of the two officers virtually from the moment he arrived at the station and, indeed, that he may have been aware of Detective Murray’s identity as the two had had a prior encounter. As Dixon came out of the ticket booth, the officers approached him. There was evidence that as one detective approached from the front another approached from the rear, that the detective approaching from the rear passed Dixon and then stood in front of Dixon along side the detective who had approached from the front. There was evidence that, before police asked for permission to search Dixon, they (1) showed him their badges; (2) told him they were narcotics detectives working at the Amtrak station and that the reason for their contacting him was that there was a large problem with people smuggling drugs on the train; and (3) asked Dixon if he was riding the train and to produce his ticket.

Under these circumstances, and in particular the manner in which the detectives approached Dixon, i.e., one from the front and another from the rear who passed Dixon with the result being that both officers stood in his path, we find no error in the trial court’s conclusion that the contact was not a consensual encounter and a reasonable person would not have felt free to disregard the detectives’ questions and request to produce a ticket and simply proceed on his way. Com/pare United States v. Bowles, 625 F.2d 526 (5th Cir.1980) (finding contact was an investigatory stop, not a consensual encounter), with United States v. Simmons, 918 F.2d 476 (5th Cir.1990) (finding contact was a consensual encounter), and State v. Poole, 730 So.2d 340 (Fla. 3d DCA 1999) (finding contact was consensual encounter). State v. R.H., 900 So.2d 689 (Fla. 4th DCA 2005), cited by the State, is distinguishable. There, police made casual conversation with the defendant, rather than, as here, immediately pulling out their badges and stating they were drug detectives. Further, in R.H., this court specifically found the evidence failed to establish that R.H.’s freedom of movement was hindered because the evidence was to the effect that the officers were standing next to one another. Id. at 693. In this case, while the end result was that the officers were standing next to one another and in front of Dixon, to accomplish this, police had approached from both the front and rear with the officer approaching from the rear essentially stepping into Dixon’s path.

Affirmed.

TAYLOR, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I concur in affirming, but would emphasize that the officers actually blocked Dixon’s path of walking to his train, which was at the station.


author: STEVENSON, J.

text:
    Tavares Antwan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-20.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Carey Haughwout, Public Defender, and John M. Conway, 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.
   STEVENSON, J.

Tavares Williams was tried by jury and convicted of sale of cocaine and marijuana within 1000 feet of a school and public housing facility. Although Williams raises a number of issues on appeal, we write to address only one — his claim that the trial court erred in denying his motion for judgment of acquittal, which is dispositive of the instant appeal and compels a reversal.

Evidence at trial established that, on April 13, 2006, an undercover officer was in an unmarked patrol car and conducting surveillance in the 1000 block of 18th Street near Tamarind Avenue in West Palm Beach. For a couple of hours, the undercover officer observed the defendant riding up and down the street on a bicycle. At around 9:30 a.m., the officer observed a white Nissan approach and stop. The defendant rode up to the driver’s side door, had a conversation with the driver, looked around, and then gave the driver what the officer believed to be a small object in exchange for money. The officer testified that the object fit within the defendant’s hand and that he never actually saw it. According to the undercover officer, after the exchange, the defendant yelled something to someone to the east and out of the officer’s sight. The defendant then rode his bicycle in that direction, came back about two minutes later, and handed the driver of the car a second object. Again, the officer admitted he did not actually see the object. The officer did not believe any money changed hands during the second exchange.

The undercover officer radioed a description of the defendant and the white Nissan to nearby officers. Both the defendant and driver of the car were detained. The defendant was searched. No drugs were found on his person, but he did have $500 cash. The driver of the white Nissan did not have a license and, when police asked him to get out of the car, they observed two baggies on the driver’s side floor with suspect cocaine and marijuana. The baggies were approximately one inch by one inch. The parties stipulated that the substances were marijuana and cocaine. Police testified that the manner of packaging indicated the drugs were set up for distribution.

At the close of the State’s case, defense counsel moved for a judgment of acquittal, arguing that the State had failed to prove the defendant had committed any crime as the police never observed anything illegal in the defendant’s possession. The trial court denied the motion. We find that the evidence presented by the State failed to establish a prima facie case of guilt, see Hodge v. State, 970 So.2d 923, 926-27 (Fla. 4th DCA 2008), and thus reverse the judgments of conviction. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (recognizing ruling on motion for judgment of acquittal is reviewed de novo on appeal).

Morejon v. State, 633 So.2d 1094 (Fla. 3d DCA 1994), is instructive because there, as here, the State failed to present any evidence actually linking the defendant to the drugs. In Morejon, police were conducting surveillance on a home occupied by a man named Lee Wright and used a device to listen in on Wright’s phone conversations. In one conversation, Wright, Morejon, and others discussed the sale of “shirts” for “17.” Id. at 1095. Police testified that the term “shirts” was a code word for heroin or contraband. A pick-up truck pulled up to the home. A man named Guadalupe Flores exited the vehicle, carrying a plastic bag, and entered the house. A second man exited the truck and gestured as though signaling to someone. Morejon then pulled up to the house in a second vehicle. Morejon entered the home, carrying a gym bag. Several minutes later, Flores exited with the same bag he had earlier carried in and the bag appeared fuller. Flores and several others left in Morejon’s truck. Morejon subsequently left in another vehicle. Police stopped both vehicles. Police confiscated more than a pound of marijuana from Flores and his companions. No drugs were found on Morejon, but he was carrying $1429 in cash. The Third District found that this evidence was insufficient to sustain Morejon’s convictions for sale or delivery of marijuana, possession with intent to distribute, and conspiracy and that his motion for judgment of acquittal should have been granted.

[T]he evidence was woefully insufficient to support the defendant’s conviction. Other than the fact that the defendant had $1429.00 cash in his possession, the State presented absolutely no evidence that he was a participant in either the sale or delivery of marijuana, possession of marijuana, or a conspiracy to sell marijuana.
The only evidence the State presented against Morejon was that he was involved in conversations with others discussing the sale of “shirts” for “17.” The officers’ explanation that “shirts” was a code word for heroin or contraband was insufficient to establish that the parties were indeed negotiating the sale or delivery of a pound of marijuana. No one ever observed Morejon in possession of the white plastic bag containing the marijuana, delivering the marijuana to one of the other participants, involved in the instant negotiations, or exchanging the $1429.00 cash for the sale of the marijuana.

633 So.2d at 1096.

In the instant case, the evidence failed to place the drugs ultimately found in the white Nissan in Williams’ possession. Police could testify only that they saw what they believed to be a hand-to-hand transaction and that Williams had received some amount of cash from the driver in the first exchange. Police admitted they did not see what was in Williams’ hand during either perceived exchange. Although drugs were found in the white Nissan and police had observed an encounter and possible transaction between Williams and the car's driver, there was no evidence linking the drugs to Williams or in any way limiting the possible sources of the drugs found in the car. As stated by our sister court, “[ejvidence that creates nothing more than a strong suspicion that a defendant committed the crime is not sufficient to support a conviction.” Davis v. State, 761 So.2d 1154, 1158 (Fla. 2d DCA 2000). And, even though “one could intuitively conclude that ... [the defendant] might be guilty,” a verdict and judgment of conviction “ ‘cannot rest on mere probabilities’ ” and “intuition is not a substitute for evidence.” Id. at 1159 (quoting Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972)). A “strong suspicion” or probability of guilt is all the State’s evidence established here. Accordingly, we reverse Williams’ judgments of conviction and remand with instructions that he be discharged.

Reversed.

STONE and TAYLOR, JJ., concur.


author: MAY, J.

text:
    Edmund MADY, Appellant, v. DAIMLERCHRYSLER CORPORATION, Appellee.
    No. 4D07-842.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.

      Theodore F. Greene III, of Law Offices of Theodore F. Greene, LC, Orlando, and Laura Konwinski of Krohn & Moss, Ltd., Chicago, for appellant.
    John J. Glenn and Benjamin C. Moore of Anderson Glenn, LLC, Ponte Vedra Beach, for appellee.
   MAY, J.

Statutory authorization for prevailing party attorney’s fees under the Magnuson-Moss Act is challenged in this appeal. The plaintiff appeals an order denying his request for attorney’s fees under 15 U.S.C. § 2310(d)(2) (Supp.2005). He argues the trial court erred in denying his motion because he was a prevailing party. We disagree and affirm.

In May 2003, the plaintiff leased a 2003 Dodge Viper, manufactured by Daimler-Chrysler Corporation. Not long after, the plaintiff sued DaimlerChrysler for breach of written and implied warranties, pursuant to the Magnuson-Moss Warranty— Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (Supp.2005).

In November 2005, DaimlerChrysler served a proposal for settlement, pursuant to section 768.79, Florida Statutes (2005), and Rule 1.442, Florida Rules of Civil Procedure. DaimlerChrysler served a second proposal for settlement along with a proposed release agreement the following month. On December 29, 2005, the plaintiff accepted the proposal.

Pursuant to the proposal’s terms, Daim-lerChrysler would pay the total sum of $8,500 exclusive of attorney’s fees. It neither admitted liability nor conceded plaintiffs entitlement to attorney’s fees, but acknowledged that the plaintiff might seek attorney’s fees. The settlement required the plaintiff to execute a complete release and voluntary dismissal with prejudice. No judgment was to be entered against DaimlerChrysler.

In June 2006, the plaintiff moved for entitlement to attorney’s fees and costs. After a hearing, the trial court denied the motion, basing its denial on a finding that the plaintiff had not established he was a consumer who “finally prevails” under 15 U.S.C. § 2310(d)(2). The trial court’s order cited Buckhannon Board & Caro Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), Pitchford v. Oakwood Mobile Homes, Inc., 212 F.Supp.2d 613 (W.D.Va.2002), and Pines v. Growers Service Co., 787 So.2d 85 (Fla. 2d DCA 2001).

The trial court’s decision on whether the plaintiff was a prevailing party is a question of law subject to de novo review. See Marks v. State, Dep’t of Legal Affairs, 937 So.2d 1211, 1213 (Fla. 4th DCA 2006) (quoting Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004)).

The plaintiff argues that acceptance of DaimlerChrysler’s proposal for settlement qualified him as a consumer who “finally prevails” and entitled him to attorney’s fees because his acceptance expressly excluded attorney’s fees. He argues, among other things, that the federal statute does not limit when a consumer “finally prevails,” and federal case law explaining the public policy behind “fee-shifting” statutes mandates an award of fees to him as a prevailing party.

DaimlerChrysler responds that neither Florida law nor the method used to settle the case affects the application of the attorney’s fees provision of the Magnuson-Moss Act. It argues that federal case law has established that a plaintiff, who accepts a proposal for settlement that does not provide for entry of final judgment or continuing jurisdiction for enforcement, is not a consumer who “finally prevails” under 15 U.S.C. § 2310(d)(2).

Section 2310(d)(2) provides:

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

15 U.S.C. § 2310(d)(2) (emphasis added). The plaintiff correctly notes the statute does not limit when a consumer “finally prevails.” However, federal case law has provided a workable definition.

A consumer will be found to have finally prevailed under section 2310(d)(2) when the trial court enters a final judgment on the merits of a claim or retains jurisdiction to enforce a settlement agreement through a consent decree. Buckhannon Bd. & Care Home, Inc., 532 U.S. at 603-04, 121 S.Ct. 1835. The essential requirement is a court-ordered change in the legal relationship between the parties regardless of whether the defendant admits liability. Id. at 604, 121 S.Ct. 1835 (citing Maher v. Gagne, 448 U.S. 122, 126 n. 8, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)).

Ordinarily, a private settlement does not satisfy this requirement. Id. at 604 n. 7,121 S.Ct. 1835 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). However, when the terms of a private settlement are incorporated into a court order or the court retains jurisdiction to enforce its terms, the agreement can be construed as the equivalent of a consent decree. Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. The key is “a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). There simply was no court-ordered change in the relationship of the parties in this case by the plaintiffs acceptance of DaimlerChrysler’s proposal for settlement.

We are aware that the Second District Court of Appeal has recently reached a contrary conclusion. Dufresne v. DaimlerChrysler Corp., No. 2D05-5118, 975 So.2d 555 (Fla. 2d DCA 2008). There, the Second District held, under circumstances identical to those in this case, that the settlement of a Magnuson-Moss Act claim, pursuant to section 768.79, “is the functional equivalent of a consent decree,” thereby rendering the plaintiff a prevailing party. Id. at 557. The court based its holding on subsection (4) of section 768.79, which provides the trial court with “full jurisdiction to enforce the settlement agreement.” Id. (citing § 768.79(4), Fla. Stat. (2004)). We respectfully disagree.

We find that section 768.79(4)⅛ provision for enforcement is not the same as the required affirmative court action that either approves of the terms of a settlement or affirmatively retains jurisdiction for enforcement. See Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. This is especially true where the very terms of the accepted proposal for settlement prohibit the entry of a judgment against DaimlerChrysler. To use the legal fiction of an equivalent consent decree to qualify the plaintiff for prevailing party attorney’s fees runs afoul of the very terms of the accepted proposal for settlement. We therefore align ourselves with the federal court decisions that have consistently refused to expand the language of section 2310(d)(2) to cases in which the trial court has not become actively involved in the settlement either by entering a judgment, approving a settlement, or expressly reserving jurisdiction to enforce the settlement.

The plaintiff also argues that the proposal for settlement is the equivalent of a confession of judgment under Wollard v. Lloyd’s & Companies of Lloyd’s, 439 So.2d 217 (Fla.1983). We disagree. In Wollard, our supreme court held that an insurer could not avoid the liability for attorney’s fees under section 627.428, Florida Statutes (1979), by paying policy proceeds to avoid entry of a judgment. To reach that decision, the court created the legal fiction of an equivalent “consent judgment.” Significantly, however, that fiction has been restricted to its stated purpose — to prevent an insurer from avoiding statutory fees under section 627.428. See, e.g., Basik Exports & Imports, Inc. v. Preferred Nat’l Ins. Co., 911 So.2d 291, 293 (Fla. 4th DCA 2005) (“The Wollard extension of section 627.428, however, has not generally been applied to factual scenarios similar to those in the instant appeal.”).

Here, the proposal for settlement and consequent agreement specifically excluded fees from its purview and prohibited the entry of a judgment against Daimler-Chrysler. Once the proposal was accepted by the plaintiff, the terms were fixed.

The plaintiff accepted a proposal for settlement that specifically precluded the entry of judgment against DaimlerChrysler. The agreement provided for a voluntary dismissal with prejudice in exchange for DaimlerChrysler’s payment of $8,500. Simply put, and as the trial court found, the plaintiff was not a consumer who finally prevailed under 15 U.S.C. § 2310(d)(2).

Because we reach a decision contrary to that of the Second District Court of Appeal, we certify conflict with Dufresne v. DaimlerChrysler Corp., No. 2D05-5118, 975 So.2d 555 (Fla. 2d DCA 2008).

Affirmed.

STONE and POLEN, JJ., concur.

      . We have previously held that section 768.79, Florida Statutes (1998), and Florida Rule of Civil Procedure 1.442 do NOT require entry of a final judgment unless the judgment is a term of the proposal for settlement. Abbott & Purdy Group, Inc. v. Bell, 738 So.2d 1024 (Fla. 4th DCA 1999).

      . We further disagree that our ruling undermines the purposes of permitting the shifting of fees under both 15 U.S.C. § 2310(d)(2) (Supp.2005) and section 768.79, Florida Statutes (2005). Even if a judgment had been entered in favor of the plaintiff, section 2310(d)(2) still provides the trial court with discretion to either grant or deny attorney's fees.


author: HAZOURI, J.

text:
    Gary JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1853.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Gary Johnson appeals his conviction and sentence for burglary of a dwelling asserting that the trial court reversibly erred when it permitted the state to bolster the victim’s identification of Johnson as one of the perpetrators of the burglary by allowing the victim to testify that she had correctly identified the codefendant at the codefendant’s sentencing. We agree and reverse and remand for a new trial.

Johnson was charged by information with burglary of a dwelling along with co-defendant Kenny Jones arising out of an incident occurring on April 21, 2006. At Johnson’s trial, the victim, Barbara Palmer, testified that on April 21, 2006, at approximately 9:00 a.m., she left her house to pick up a neighbor to go shopping. When Palmer arrived at her neighbor’s house, she noticed an unfamiliar truck in her driveway (Palmer’s driveway). Palmer went to her house to investigate who was in the truck. When she arrived back at her home, two men came walking toward her, coming from the back of the house. Palmer described the men: “Two young black males, they had very short haircuts, they were wearing the same T-shirts, I assumed they worked on boats.” Palmer asked them if they were there visiting her husband, but they did not respond.

Palmer became suspicious when they would not answer her questions. After not answering Palmer’s questions, the two men got into the truck. One of the men was carrying a canvas bag that had been inside Palmer’s house, next to her laptop. Palmer was holding on to the door handle of the truck, saying “who are you,” and yelling to her neighbor in the car to call 911. Palmer let go of the door handle and called out the truck’s license plate number to her neighbor, who was on the phone with 911. Palmer’s neighbor was able to give the police the truck’s license plate number and description.

The police responded five minutes later. Palmer and the police determined that the two men gained entry to her home through the back door. Palmer’s laptop and canvas bag were missing. Palmer testified that after she asked her neighbor to call 911, she witnessed a third person jump over the fence into another neighbor’s yard. He was dressed exactly like the other two men.

Palmer testified that she was able to identify Jones as the truck’s passenger and carrier of the canvas bag by way of a photographic lineup. She identified him with 100% certainty. She had previously identified Johnson in a photographic lineup as the driver of the truck, but only with 80% certainty. Over Johnson’s objection, the trial court permitted the state to bolster Palmer’s identification of Johnson by having Palmer testify that she was able to identify codefendant Jones at his sentencing.

In overruling the objection, the trial court stated,

... I think it is fair to share that she recognized and identified somebody and she later saw him at sentencing, it is just an issue of identification, not that he’s the person. You know, it just shows that, that she was able to perceive and recognize a person and was able to perceive and recognize him another time.

Although it may be marginally relevant that Palmer could identify Jones with 100% certainty, and therefore not an abuse of discretion, it is highly prejudicial that Palmer’s second identification of Jones occurred at his sentencing. The clear implication is that not only was Palmer 100% sure of her identification of Jones, but additionally, Jones was in fact convicted of the very burglary for which Johnson was being tried. “It is well settled under Florida law that the state may not show that a co-defendant or an accomplice pleaded guilty or was convicted because it is not relevant and it may have a very prejudicial effect upon the determination of the guilt or innocence of the defendant.” See Travieso v. State, 480 So.2d 100, 103 (Fla. 4th DCA 1985) (citation omitted).

The state argues that this error is harmless. We disagree. In order for this error to be harmless, the state has a burden to prove beyond a reasonable doubt that the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Johnson’s defense was misidentifi-cation. There was no physical evidence to support the state’s charge that Johnson participated in the burglary. Therefore, Palmer’s ability to identify Johnson was critical to the state’s case. Thus, Palmer’s testimony that she made a positive identification of Jones at his sentencing can hardly qualify as harmless error.

Johnson’s second point on appeal is without merit.

Reversed and Remanded for a New Trial.

KLEIN and DAMOORGIAN, JJ., concur.

      . Palmer and her husband are in the boating business.


author: TAYLOR, J.

text:
    Robert Philip FEHRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2666.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.

      Carey Haughwout, Public Defender, Dea Abramschmitt, Assistant Public Defender, and Natalie K. Stevens, Certified Legal Intern, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant appeals his criminal conviction and sentence for lewd or lascivious conduct committed on a victim less than 16 years old by an offender 18 years old or older. The defendant’s principal point on appeal is that the trial court erred by prohibiting defense counsel from proffering the minor victim’s testimony regarding a prior accusation of sexual assault she made against another man. We agree that the failure to permit the proffer was reversible error, requiring a new trial.

H.S. was born on December 19, 1992. She was in the 7th grade at the time of the incident that led to these charges against the defendant. The defendant was 37 years old and a close friend of H.S.’s father. In May 2006 she was in the car alone with the defendant when he picked her up from the bus stop. She testified that the defendant stopped the car and unbuttoned her pants and “started messing with me.” She testified that he placed his right hand beneath her underwear and touched her pubic hair area. This lasted only about a second, because H.S. was pushing him away and telling him to stop. The defendant then took her home.

In a taped controlled phone call, the defendant admitted to touching H.S.’s “stomach area.” In his taped police interrogation, the defendant admitted touching H.S. on her left hipbone and said that he did this because they were discussing his giving her a tattoo there. He denied touching her pubic area. In his taped statement, the defendant also claimed that H.S. had made accusations against a guy named Lyle and that her dad had run Lyle off.

The defendant was charged by amended information with lewd or lascivious molestation — offender 18 or older, victim 12 to 16 and lewd or lascivious conduct — offender 18 or older.

During H.S.’s cross-examination at trial, the following occurred:

Q: Now you’ve told that someone else has touched you before, right?
A: Yeah.
Q: (INDISCERNABLE)
MR. WELLS: Objection, Your Honor, relevance. May we approach?
COURT: You may?
MR. WELLS: This is beyond the scope of cross examination and it’s also not relevant um, at this time.

Defense counsel argued that her question was relevant to show the witness’s possible bias, prejudice, motive, intent, and accuracy. She advised the court that during the defendant’s controlled phone conversation and H.S.’s statement at her deposition, there was some mention of similar accusations H.S. had made against another person. During a lengthy bench conference that followed (much of which was indiscernible to the court reporter), defense counsel submitted case law to the court on the relevance of prior similar allegations by a witness. She asked to proffer testimony of H.S. on this line of questioning outside the presence of the jury. Concerned that defense counsel had no evidence or reasonable basis to believe that H.S.’s previous allegations were false (other than the fact that the alleged offender had apparently not been charged with a crime), the trial court ultimately sustained the state’s objection to a “fishing expedition” and refused to permit the proffer.

The defendant was found not guilty of lewd or lascivious molestation, but guilty of lewd or lascivious conduct, victim less than 16, defendant 18 or older (a lesser included offense).

The primary purpose of a proffer is to include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct. Rozier v. State, 636 So.2d 1386, 1387 (Fla. 4th DCA 1994). A trial court commits error if it denies a request to proffer testimony which is reasonably related to the issues at trial. Wood v. State, 654 So.2d 218, 220 (Fla. 1st DCA 1995). This is so because refusing to permit the proffer precludes full and effective appellate review. Rozier, 636 So.2d at 1387; B.K.F. v. State, 614 So.2d 1167, 1168 (Fla. 2d DCA 1993); Pender v. State, 432 So.2d 800, 802 (Fla. 1st DCA 1983); Brown v. State, 431 So.2d 247, 248 (Fla. 1st DCA 1983). The disallowance of a proffer “thwarts a defendant’s right to cross examine witnesses guaranteed by the sixth amendment and article I, section 16 of the Florida Constitution.” Rozier, 636 So.2d at 1388; see also Pender, 482 So.2d at 802.

The state argued to the trial court that defense counsel should not be permitted to go on a “fishing expedition.” This is not a recognized ground for denying a proffer, so long as it can be said that the proposed “fishing expedition” is reasonably related to the issues at trial. In Alford v. U.S., 282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the United States Supreme Court recognized that cross-examination is often, “necessarily exploratory” in nature:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what fact a reasonable cross-examination might develop. Prejudice ensues from denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

282 U.S. at 692, 51 S.Ct. 218 (citations omitted). The defendant has the absolute right to conduct a full and fair cross-examination. This right is “especially necessary when the witness being cross-examined is the key witness on whose credibility the State’s case relies.” Docekal v. State, 929 So.2d 1139, 1142 (Fla. 5th DCA 2006) (quoting Tomengo v. State, 864 So.2d 525, 530 (Fla. 5th DCA 2004)). Cross-examination can be limited to prevent harassment, annoyance or humiliation of the witness. Alford, 282 U.S. at 694, 51 S.Ct. 218. The state has not argued that any such limitation applied to preclude the proffer here.

As the state points out, refusal to permit a proffer is subject to a harmless error analysis. See Brown, 431 So.2d at 248. The burden, however, is on the state to establish beyond a reasonable doubt that the error complained of did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Unless there is record evidence or argument of defense counsel revealing what the proposed proffer would have included, it is difficult, if not impossible, to say that the error was harmless. See Rozier, 636 So.2d at 1388 (Fla. 4th DCA 1994) (“Therefore, we cannot say that the exclusion of Mur-rell’s testimony was harmless beyond a reasonable doubt when we do not know what the substance of her testimony would have been.”); cf. Brown, 431 So.2d at 248 (holding that refusal of proffer was harmless where court was “able to determine from defense counsel’s detailed argument and explanation of the evidence expected to be offered” the alleged relevance of the testimony). The circumstances surrounding the attempted proffer in this case are more similar to those in Rozier than in Brown and, thus, the error cannot be deemed harmless.

In this case, it appears that S.H. had not recanted her prior accusations. The state thus argues that the trial court’s denial of defendant’s request to make a proffer was harmless, citing Reeves v. State, 862 So.2d 60, 61 (Fla. 1st DCA 2003). In Reeves, the First District held that the trial court’s exclusion of evidence that the victim had previously accused her father of sexual abuse was proper because the victim had not recanted her statements regarding this prior sexual abuse. Id. More recently, however, in State v. Taylor, 928 So.2d 473, 477 (Fla. 1st DCA 2006), the First District denied the state’s certiorari petition which had sought to prevent the defense from presenting any evidence about the victim’s prior sexual abuse allegations against her father. There, the court stated that “even if a recantation did not occur, the judge could arguably still have decided to allow the testimony at issue as relevant to the witness’s credibility, bias, motive, or interest.” Id. The court quoted Jaggers v. State, 536 So.2d 321, 327 (Fla. 2d DCA 1988) (“Evidence that is relevant to the possible bias, prejudice, motive, intent or corruptness of a witness is nearly always not only admissible, but necessary, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility. That is particularly true in the case of allegations of sexual abuse where there is no independent evidence of the abuse and the defendant’s sole defense is either fabrication or mistake on the part of the alleged victims.”).

We agree that defense counsel should be allowed to inquire about a prior accusation of sexual assault, even where the victim has not previously recanted that allegation. It may be that the prior accusations will cast doubt on the current one by, for example, being remarkably similar in content, or made against a person similar to the defendant. Absent a specific proffer and without any context in which to view the admissibility of testimony in this case, we can offer only general guidance. It appears, however, that the trial court’s refusal to permit cross-examination about the prior accusation could have resulted in an abuse of discretion. In any event, clear error has been shown by the trial court’s refusal to permit even a proffer of that testimony so as to permit meaningful review.

We find no error in the trial court’s denial of appellant’s motion in limine regarding appellant’s conduct in text messaging, tickling, and telling H.S. to “take it out in trade.” These acts were not evidence of collateral crimes, subject to a section 90.404(2)(a) or (b) analysis, but were relevant evidence admissible as a part of, or inextricably intertwined with, the crime charged.

Reversed and Remanded for a new trial.

STONE and STEVENSON, JJ., concur.

-


author: PER CURIAM.

text:
    Dennis Henry MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4928.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Dennis Henry Martinez appeals a conviction for indirect criminal contempt for his failure to appear at a sentencing hearing, asserting the trial court erred in failing to give him formal notice that he was charged with the crime of indirect criminal contempt. We agree and reverse Martinez’s conviction for indirect criminal contempt.

Rule 3.840 states, in relevant part:

Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.

Fla. R. Crim. P. 3.840(g). The procedures found in the rules governing criminal contempt must be scrupulously followed. Bouie v. State, 784 So.2d 521, 523 (Fla. 4th DCA 2001). “[T]he indirect criminal contempt process requires that all procedural aspects of the criminal justice process be accorded a defendant, including an appropriate charging document, an answer, an order of arrest, the right to bail, an arraignment, and a hearing.” Gidden v. State, 613 So.2d 457, 460 (Fla.1993).

In this case, Martinez was never provided with formal written notice of the charge of indirect criminal contempt. The only document indicating any charge was the bench warrant for Martinez’s failure to appear in court for sentencing. When Martinez appeared at the hearing on the charge, the trial court did not inform Martinez that he was charged with indirect criminal contempt, only stating the hearing was for “failure to appear 7/25/06.” After giving Martinez an opportunity or to explain his failure to appear or any mitigating circumstances, the trial court stated it was “adjudicating you guilty of failure to appear-” This was not sufficient to provide Martinez with notice of the charge as required by rule 3.840.

Further, the trial court failed to include a recitation of the facts constituting the contempt when entering the judgment of guilty. See Fla.R.Crim.P. 3.840(f) (“[tjhere should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty”). While this requirement is waived when there are sufficient oral findings made on the record, the trial court failed to meet even this requirement. See Gidden v. State, 613 So.2d 457 (Fla.1993).

We find the trial court erred in failing to follow the requirements of rule 3.840 and reverse Martinez’s conviction for indirect criminal contempt.

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

      . The State contends that Martinez’s failure to appear is actually direct criminal contempt, pursuant to Woods v. State, 600 So.2d 27 (Fla. 4th DCA 1992) (failure to appear in court is punishable as direct criminal contempt). While the State is correct in its assertion, the trial court found Martinez guilty of indirect criminal contempt and the case is analyzed using the rules and law applicable to the charge of indirect criminal contempt.


text:
    Mark STEWART, Appellant, v. Lori STEWART, Appellee.
    No. 4D07-53.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Terry Ellen Fixel of Fixel & La Rocco, Hollywood, and Sandor F. Genet of Sandor F. Genet & Associates, P.A., North Miami Beach, for appellant.
    Carin M. Porras of Brydger & Porras, LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

The former husband appeals from a Final Judgment of Dissolution of Marriage and raises two issues for review. With respect to the issue raised on imputation of income to the former wife, we find that the trial court did not abuse its discretion and affirm that finding.

The other issue raised is whether the trial court properly reserved jurisdiction for an automatic upward modification of alimony should the former husband’s income increase or should the former wife lose her job. “[Ajutomatic increases in alimony based solely on income increases of the paying party are generally improper.” Hamilton v. Hamilton, 552 So.2d 929, 931 (Fla. 1st DCA 1989) (citing Featherngill v. Featherngill, 478 So.2d 106 (Fla. 2d DCA 1985)). There is an exception to this general rule. See, e.g., Llopis v. Llopis, 731 So.2d 719, 720 n. 2 (Fla. 3d DCA 1999) (where the court makes a finding that the party entitled to receive alimony has financial needs greater than the financial ability of the spouse to pay, it would be appropriate for the court to find what the actual alimony needs are and then reserve jurisdiction to increase payments if the spouse’s ability to pay increases).

The trial court found that the former husband had the ability to pay more than the amount of alimony actually awarded, therefore, it should not have reserved jurisdiction for any increases in alimony without the necessary proof of a substantial change in circumstances. See § 61.14, Fla. Stat. (2005); Woolf v. Woolf, 901 So.2d 905, 912 (Fla. 4th DCA 2005). We reverse and remand for the deletion of these provisions from the Final Judgment of Dissolution.

Affirmed, in Part; Reversed in Part.

KLEIN, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Emannuel CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1567.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Emannuel Clark, was convicted of possession of a firearm by a convicted felon and resisting an officer without violence. His motions for judgment of acquittal were denied as to each charge and appellant appeals. We affirm without discussion the denial of the motion as to the possession charge. We reverse appellant’s conviction for resisting an officer without violence.

On July 28, 2005, at 11:00 P.M., a number of deputies in two or more unmarked vehicles drove into the parking lot of a pool hall in Fort Pierce through two separate entrances. They were not responding to a call or looking for appellant that night and they were wearing vests which had “sheriff’ marked only on the back. As Deputy Jadin drove past the building, he saw a group of four to six people standing at the north end of the parking lot. He immediately saw a person run away from the group just as his vehicle stopped. The person, appellant, ran across the parking lot, through Deputy Jadin’s vehicle’s headlights and toward a fence. Appellant had his hand in his waistband and when he reached the fence he dropped something which Deputy Jadin could not identify at that point. Deputy Jadin did not identify himself or order appellant to stop. Appellant jumped the fence and disappeared. Deputy Jadin went to the location where appellant dropped the object and found a firearm. The deputies set up a perimeter and appellant was found and arrested.

In appellant’s motion for judgment of acquittal, he argued, inter alia, that the state failed to prove that he knew the officer intended to detain him. In Mosley v. State, 739 So.2d 672 (Fla. 4th DCA 1999), this court held:

“To support a conviction under section 843.02, the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” If the officer has either reasonable suspicion to stop the defendant, or probable cause for arrest, the element of the lawful execution of a legal duty is satisfied. The defendant is correct that “[fjlight, standing alone, does not constitute obstructing an officer nor does it give rise to a well-founded suspicion of criminal activity.” “An individual may be guilty of unlawfully obstructing an officer if he flees while knowing of the officer’s intent to detain him and the officer is justified in making a stop pursuant to the Stop and Frisk Statute.”

Id. at 675 (citations omitted). The Second District stated the law as follows:

To prove obstruction of an officer without violence, the State must establish that the defendant fled from the officer with knowledge of the officer’s intent to detain him and that the officer was justified in making the detention based on a founded suspicion that the defendant was engaged in criminal activity.

E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003).

Deputy Jadin testified that appellant started to run the moment the unmarked law enforcement vehicles turned into the parking lot. Appellant passed in front of Deputy Jadin when his vehicle was stopped and he was getting out of the vehicle. When appellant neared the fence, he dropped something that Deputy Jadin thought might be a gun but he was not sure. Deputy Jadin did not tell appellant to stop. Appellant jumped the fence and disappeared. The evidence does not prove appellant had knowledge that Deputy Jad-in or any other officer intended to detain him.

Because the state failed to prove every element of the crime, the trial court should have granted appellant’s motion for judgment of acquittal. We reverse and remand for entry of a judgment of acquittal on the charge of resisting an officer without violence. We affirm appellant’s conviction for possession of a firearm by a convicted felon.

Affirmed in Part; Reversed in Part.

KLEIN and DAMOORGIAN, JJ„ concur.


author: CANADY, Judge.

text:
    Aaron FLECK as a contingent beneficiary and cotrustee of the Sidney Fleck Trust Agreement u/w/a December 10, 1973, Appellant, v. Gary FLECK, Stephanie Fleck, and Barry Fleck, personal representatives of the estate of Sondra Fleck-Rubin, Appellees.
    No. 2D06-5804.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      Alan E. Tannenbaum and Kenneth R. Mathews of Levin Tannenbaum Band and Gates, Sarasota (withdrew after briefing); Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota (substituted as counsel of record), for Appellant.
    A. Lamar Matthews, Jr. and Martin Garcia of Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A., Sarasota, for Ap-pellees.
   CANADY, Judge.

This case arises from a dispute between a trustee and the primary beneficiary of a trust concerning funds distributed to the beneficiary without the approval of the trustee. The appellant, Aaron Fleck, as the trustee, challenges a final judgment entered on remand from our decision in Fleck-Rubin v. Fleck, 933 So.2d 38 (Fla. 2d DCA 2006). We reverse the final judgment in part.

The dispute between the appellant and Sondra Fleck-Rubin, the primary beneficiary of the trust, related to funds distributed to Sondra by the trust administrator pursuant to Sondra’s direction. The appellant sued Sondra and obtained a partial summary judgment, which ordered that Sondra return to the trust the assets which had been distributed to her. Sondra challenged that judgment in Fleck-Rubin, where we considered “whether the terms of the trust agreement permitted Sondra to remove all the funds and assets of [the trust] without her cotrustee’s consent.” Id. at 40.

We concluded that the trial court had erred in its interpretation of the terms of the trust agreement. Contrary to the trial court’s interpretation, we determined that the “unambiguous language” of the trust agreement “allowed Sondra to demand distributions from [the trust] ‘even to the complete exhaustion thereof,’ ” and that “[s]uch distributions were not subject to the approval or discretion of [the appellant], as cotrustee.” Id. We recognized, however, “that Sondra’s request for all the assets had to be made ‘by written instrument signed by her and delivered to the Trustees during her life.’ ” Id. at n. 1. We left open the question of whether Sondra had satisfied that requirement for requesting distribution of trust assets. Id.

On remand, the trial court determined that Sondra had indeed satisfied the requirement for requesting the distribution of trust assets. Having made that determination, the trial court granted judgment in favor of Sondra on the appellant’s pending claims. The judgment — which is now before us on appeal — also specifically ordered the appellant “to immediately return to [Sondra’s guardian ad litem] all of the funds and assets which were turned over to [the appellant] pursuant to the previously entered partial summary judgment, plus interest on those funds at the legal rate.” After the initiation of this appeal, Sondra died. The personal representatives of her estate have therefore been substituted as appellees for Sondra’s guardian ad litem.

The appellant has raised a variety of issues related to the merits of his claims against Sondra. These issues are without merit and are rejected without further comment.

The appellant also argues that the trial court erred in ordering that he return to Sondra’s guardian ad litem “all of the funds and assets which were turned over to [the appellant] ... plus interest on those funds at the legal rate.” The appellant contends that he “has distributed to Sondra, as beneficiary, all of the income from the assets of the Trust since the assets were ordered returned by Sondra to the Trust, approximately $236,564.48.” The appellant further asserts that in awarding interest on “the entire corpus” to Sondra, the final judgment “fails to give [him] any credit for these payments.” According to the appellant, “[i]t is the current assets of the Trust that should be ordered released to Sondra.”

The appellees answer by arguing that “the trial court was required to undo the actions which were ordered by the subsequently reversed partial summary judgment” and that “[t]he only way to undo such action[s]” was by “an order of restitution.” The appellees further contend that “the trial court’s provision for the return of interest at the legal rate on those funds and assets was appropriate” because Sondra “lost the use of those funds and assets from the time they were paid back to [the appellant] until they are returned” from him.

We conclude that the appellant’s argument on this point has merit.

The partial summary judgment which was reversed in Fleck-Rubin directed Sondra or her guardian ad litem to “immediately transfer” to the appellant “all of the funds and assets which [Sondra] took from [the trust] as a consequence of her directions to [the administrator of the trust].” The judgment directed that the appellant, for the benefit of Sondra, “during her lifetime, manage all the funds and assets subject to the [trust] as required by the [trust] and applicable law.” Once the trial court determined on remand that Sondra had satisfied the requirement of the trust agreement for requesting a distribution of trust assets prior to the distribution of those assets, the trial court’s task was to rectify its earlier erroneous judgment by ordering that the remaining assets of the trust be distributed to Sondra’s guardian ad litem.

The trial court erred in treating the earlier erroneous judgment, which required that the distributed assets be returned to the trust, as though it were a money judgment which had been satisfied and then overturned. The funds that were returned to the trust were not turned over to the appellant to deal with as he pleased but were required to be administered by the appellant in accordance with his duties as a cotrustee. The ongoing administration of the trust necessarily involved circumstances that the trial court’s order on review in effect ignores.

Here, the restoration of the status quo ante simply requires that “all remaining trust assets” be distributed by the appellant, in his capacity as trustee, as Sondra had directed pursuant to the provisions of the trust agreement. In connection with such a distribution which effectively terminates the trust, the beneficiary is, of course, entitled to a trust accounting. See § 737.303(4)(a), Fla. Stat; (2006); see also Merrill Lynch Trust Co. v. Alzheimer’s Lifeliners Ass’n, 832 So.2d 948, 953-54 (Fla. 2d DCA 2002). In distributing the remaining trust assets, the trustee also must comply with all other applicable requirements of law. See First Union Nat’l Bank v. Jones, 768 So.2d 1213, 1215 (Fla. 4th DCA 2000).

We therefore reverse the portion of the final judgment ordering the return of “all the funds and assets which were turned over” to the appellant pursuant to the overturned judgment, “plus interest on those funds at the legal rate.” On remand, the judgment shall be amended consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . To the extent that there may be any claims against the appellant for breach of his duties as trustee, those claims are not at issue in the present proceeding.


author: SALCINES, Judge.

text:
    Stevie R. ROBINSON a/k/a Stephen R. Robinson, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4092.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Stevie R. Robinson entered a plea of no contest to drug and weapon charges while reserving the right to appeal the denial of his dispositive motion to suppress. As we conclude there was no probable cause for the search which resulted in the seizure of a firearm and marijuana, we reverse.

Evidence Presented to the Trial Court

At the motion to suppress hearing, Sarasota Police Officer Ronald Dixon testified that he and three other police officers conducted a “walk-through” in a parking lot behind a nightclub. The officer explained that a “walk-through” involves law enforcement officers walking through a public area to “make sure everything is on the up-and-up, no problems.” On the evening in question there had been no complaints about any activity at the location; however, the parking lot was described as a “problem area” known for public drinking, narcotics, and fights.

The officers observed four individuals standing near a car in an unlit, back portion of the parking lot. As the officers approached, three of the individuals started to walk away. One individual, later identified as Robinson, did not move away but remained leaning against the rear of the car. Officer Dixon testified that the police officer walking immediately in front of him informed his fellow officers that he could smell marijuana. When Officer Dixon was within ten or fifteen feet of the car, he also could smell a strong odor of burned marijuana. Officer Dixon conceded that as he approached he did not see any individual smoking marijuana nor could he smell the odor of marijuana coming from any particular individual. He reported, “It was like a cloud hanging over them,” but he could not recall actually observing any smoke.

Each of the officers approached one of the four individuals. Officer Dixon testified that as he approached Robinson he did not smell the odor of marijuana on Robinson’s person. When asked for identification, Robinson cooperated and supplied it. It was determined that Robinson had no outstanding warrants. However, Officer Dixon testified that at this point Robinson was not free to leave. Based on the odor of burned marijuana, Officer Dixon had resolved to search Robinson to see if he was in possession of marijuana. No testimony was presented that Officer Dixon suspected Robinson was in possession of a weapon or that he thought a pat-down search for officer safety was necessary.

Officer Dixon asked Robinson for consent to search. Robinson initially consented. However, when Officer Dixon informed Robinson that he needed to turn around for the search, Robinson responded, “No, you can search me right where I am.” The officer testified that he believed Robinson refused to move because he was hiding marijuana behind his back. Officer Dixon then ordered Robinson to turn around, and Robinson reluctantly complied.

During the pat-down search, Officer Dixon observed a bulge in Robinson’s back pocket. When he felt the pocket, the officer immediately recognized the object was metal in the shape of a gun. The weapon was seized. After Robinson’s arrest, a further search revealed marijuana in Robinson’s front pants pocket.

Motion to Suppress

Robinson filed a motion to suppress in which he argued that he had not consented to the search of his person and that the generalized odor of marijuana did not justify a search of all the individuals in the parking lot. He claimed that without a particularized odor of marijuana on a specific individual located in a public place, the officers did not have reasonable suspicion or probable cause to search.

In response, the State argued that when officers approach a group of individuals and an odor of marijuana cannot be attributed to any one of them, there is probable cause to search all the individuals to see if any of them are in possession of marijuana. The State cited to Green v. State, 831 So.2d 1243 (Fla. 2d DCA 2002), to support its argument.

In denying the motion, the trial court was not persuaded by the State’s argument. Instead, it noted that Robinson admitted that the odor of marijuana was in the air and held that the marijuana odor gave the officers “some reasonable suspicion to at least approach.” The trial court found that Robinson’s consent to search had been withdrawn. However, it determined that when Robinson originally consented to be searched but refused to turn around, the officer’s reasonable suspicion was “heightened.” It concluded that the officer surmised Robinson was hiding marijuana “and I think [the refusal to turn around] increased his reasonable suspicion, which makes it in the area of the stop issue which I think makes it a legitimate search, so I deny the motion.”

Law Enforcement Encounters

There are three levels of law enforcement encounters: (1) a consensual encounter, (2) an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and (3) an arrest. Golphin v. State, 945 So.2d 1174, 1180 (Fla.2006), cert. denied, — U.S. -, 128 S.Ct. 40, 169 L.Ed.2d 11 (2007). A consensual encounter involves only minimal law enforcement contact, and a citizen may either voluntarily comply with a law enforcement officer’s requests or choose to ignore them. Popple v. State, 626 So.2d 185, 186 (Fla.1993). A law enforcement officer may reasonably detain a citizen temporarily for an investigatory stop if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Id.; see § 901.151, Fla. Stat. (2005) (“Florida Stop and Frisk Law”). An investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough. Popple, 626 So.2d at 186; Newkirk v. State, 964 So.2d 861, 863 (Fla. 2d DCA 2007). During an investigatory stop the officer may temporarily detain the individual to ascertain his or her identity and the circumstances surrounding the person’s presence at the location which led to the officer’s suspicions. § 901.151(2). An arrest at any time after the investigatory stop is permissible if supported by probable cause that a crime has been or is being committed. § 901.151(4); Popple, 626 So.2d at 186.

Consensual Encounter

In the instant case, when the officers first observed the men standing in the public parking lot, there was no suspicion of any criminal behavior. Officer Dixon testified that the officers determined they would engage in a consensual encounter with the men. The trial court concluded that the actions' of the police officers in approaching the men constituted a valid consensual citizen’s encounter.

Probable Cause

When a law enforcement officer has validly stopped an individual, he may conduct a pat-down search if the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5). In the present case, there was no testimony that Officer Dixon believed Robinson was armed or posed a threat to anyone.

An officer also may conduct a warrantless search of an individual when there is probable cause to arrest. Blake v. State, 939 So.2d 192, 197 (Fla. 5th DCA 2006). It is the probability, and not a prima facie showing, of criminal activity that is the standard when reviewing a finding of probable cause to arrest an individual. Simmons v. State, 934 So.2d 1100, 1114 (Fla.2006). The totality of the circumstances must be considered. Id. However, the State has the burden to prove that the officer had probable cause, and the proof must be more than the “naked subjective statement of a police officer who has a ‘feeling’ based on ‘experience’ that the accosted citizen is committing a crime.” Coney v. State, 820 So.2d 1012, 1014 (Fla. 2d DCA 2002) (quoting Doctor v. State, 596 So.2d 442, 445 (Fla.1992)). An officer’s mere suspicion that a person is carrying illegal drugs is insufficient to supply probable cause for a search. State v. Witherspoon, 924 So.2d 868, 871 (Fla. 2d DCA 2006).

Another manner to uphold a warrantless search of an individual is when there has been a voluntary consent to the search. V.H. v. State, 903 So.2d 321, 322 (Fla. 2d DCA 2005). However, once an individual consents to a search, he or she has the right to withdraw that consent. Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000); Williams v. State, 727 So.2d 1050, 1052 (Fla. 2d DCA 1999). When an individual revokes his or her previously given consent, that consent cannot thereafter act as the basis for upholding a further search. E.B. v. State, 866 So.2d 200, 203 (Fla. 2d DCA 2004) (holding search illegal because at the moment E.B. withdrew his consent by his nonverbal conduct, the officer did not have information sufficient to meet the probable cause requirement to further detain E.B.).

In the present case, the trial court noted that there was no evidence that Officer Dixon believed Robinson was armed, but the officer thought Robinson was concealing marijuana. The trial court concluded, as a matter of law, there was sufficient probable cause for the officer to search Robinson based on the odor of burned marijuana in the air and Robinson’s action of withdrawing his consent to search. As a review of the above-stated law establishes, this determination was erroneous.

Conclusion

We conclude that there was no probable cause to support the warrantless search of Robinson’s person which yielded the firearm and the marijuana. The fact that Robinson was standing with a group of men surrounded by the odor of burned marijuana was insufficient to supply more than a “mere suspicion” that Robinson was in possession of marijuana. The fact that Robinson initially consented to a search of his person and then withdrew that consent did not give the officer probable cause to search for marijuana.

Accordingly, we reverse the denial of the motion to suppress and the resulting judgments and sentences for felon in possession of a weapon, carrying a concealed weapon, and possession of marijuana.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.

      . In fact, the Green opinion supports Robinson’s motion to suppress. The facts in Green are similar to those involved in the present case in that Green was not observed to be engaged in any criminal activity:
      Here, Officer Schantz specifically observed that the smoke was coming from [co-defendant] Mr. Brown, that he and [co-defendant] Mr. Cooper discarded the marijuana cigar and the baggie containing marijuana, and that Mr. Green was simply standing with them. Green did and said nothing that gave the officers probable cause to believe that Green possessed illegal drugs or that he was armed or dangerous so as to justify a pat-down. Because the officers had no basis to search Green, the search and subsequent seizure of the contraband from him were illegal and the evidence that was confiscated should have been suppressed.

        Green, 831 So.2d at 1245-46 (emphasis added, citations omitted). Nothing gave the officer probable cause to justify a pat-down search of Green or the subsequent seizure of contraband because there was no basis for the search. Id. at 1245-46. The denial of Green's motion to suppress was reversed. In the case before us, Robinson, like Green, was not observed to have been involved in any direct criminal activity because Officer Dixon did not perceive the odor of marijuana on his person, and Robinson was merely standing in an area where the odor of burned marijuana was present.