author: LAWSON, J.

text:
    Tonya J. WATSON, Appellant, v. BREVARD COUNTY CLERK OF The CIRCUIT COURT and Florida Commission on Human Relations, Appellee.
    No. 5D05-3520.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    I.J. Wesley Ogburia of the Law Office of I.J. Wesley Ogburia, P.A., Orlando, for Appellant.
    Richard E. Stadler of Stadler & Harris, P.A., Titusville, for Appellee.
   LAWSON, J.

Tonya Watson appeals the Florida Commission on Human Relations’ dismissal of her employment discrimination complaint against the Brevard County Clerk of Courts. The Commission’s initial investigation resulted in a finding of no reasonable cause to believe that an unlawful employment practice had occurred, and notice to Watson that she could challenge the finding by timely petitioning for an administrative hearing. The notice expressly stated that Watson had to file her petition within 35 days. Watson admits that she did not file until after expiration of the 35-day deadline, but argues that: (1) the untimely petition should have been accepted for equitable reasons, because it was only one day late and someone on the Commission’s staff verbally informed her that she could file the petition late; or, alternatively, (2) she should have been granted additional time for filing because the Commission’s decision was mailed to her, and Florida Administrative Code Rule 28-106.103 allows an additional five days to the normal response time when responding to a mailed document. We reject both arguments, and affirm the Commission’s dismissal order.

EQUITABLE ARGUMENT

With respect to her equitable argument, Watson is correct that the statutory deadline for requesting an administrative hearing is not jurisdictional. Machules v. Dep't of Admin., 523 So.2d 1132 (Fla.1988). Therefore, the doctrine of equitable tolling can be applied to extend an administrative filing deadline. Id. “Generally, the tolling doctrine has been applied when the plaintiff has been mislead or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Id. at 1134. None of these circumstances are applicable here.

In support of her equitable tolling argument, Watson confusingly claims that the Commission’s staff told her that her petition’s “due date” was September 12, 2005, but instructed her to file it September 13, 2005. These assertions are made in Watson’s brief on appeal. The facts were not argued to the Commission, and nothing in the record evidences what is alleged to have transpired in the conversation between Watson and the unnamed Commission staff member.

Additionally, it is not clear from her brief that this conversation even occurred before Watson missed the filing deadline. Rather, the brief reads as if the conversation actually took place on September 13, after the filing deadline, and that staff simply told Watson to go ahead and fax in the belated petition. In any event, Watson does not allege to have been lulled into filing the petition late based upon misadvice from the Commission’s staff; to the contrary Watson alleges that staff verbally told her the correct “due date.” Therefore, Watson has alleged nothing that would excuse her from following the clear, written directive contained within the Commission’s notice of determination. Not only did the document explain that any request for hearing had to be filed “within 35 days of the date of this NOTICE,” (emphasis in original) it also explained that: “If the Complainant fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim ... will be dismissed with prejudice ... and the claim will be barred.” Setting aside the difficulty of addressing Watson’s claim without a record, because the facts recited in Watson’s brief are insufficient to warrant relief based on the plain language of the notice, the doctrine of equitable tolling is not applicable.

FIYE-DAY EXTENSION ARGUMENT

With respect to Watson’s five-day-extension argument, the administrative rule cited by Watson in some circumstances provides that five days is to be “added to the time limits [relating to actions under the Administrative Procedures Act] when service has been made by U.S. mail.” Fla. Admin. Code R. 28-106.103. However, the rule also contains express exceptions, including a provision that: “No additional time shall be added ... when the period of time begins pursuant to a type of notice described in Rule 28-106.111.” Rule 28-106.111 addresses notices to “persons seeking a hearing on an agency decision which does or may determine their substantial interests.” Therefore, by the express terms of the rule relied upon by Watson, the five-day extension did not apply to her petition. See, e.g., Cann v. Dep’t of Children and Family Services, 813 So.2d 237 (Fla. 2d DCA 2002) (noting that the five-day mailing extension provided under Florida Administrative Code Rule 28-106.103 did not apply where the agency notice required a response within a specific time period); cf. Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999) (noting that the five-day mailing extension under Florida Rule of Appellate Procedure 9.420(d) does not apply when an act is required to be done after rendition or filing of an order); Horvath v. Horvath, 893 So.2d 649 (Fla. 4th DCA 2005) (noting same under Florida Rule of Civil Procedure 1.090(e)).

Finding no merit to either of Watson’s arguments, we affirm the dismissal of her complaint.

AFFIRMED.

PLEUS, C.J., and GRIFFIN, J., concur.

      . See section 760.11(7), Florida Statutes (2005).

      . We note that in the absence of an adequate record on appeal, an order that is not fundamentally erroneous must be affirmed. E.g., Soterakis v. Soterakis, 913 So.2d 688 (Fla. 5th DCA 2005).


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Ricardo CANDELARIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2368.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
   LaROSE, Judge.

We affirm the order of the trial court because Mr. Candelaria did not comply substantially with the requirements of section 941.45, Florida Statutes (2005). See Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988).

STRINGER and VILLANTI, JJ., Concur.


author: WHATLEY, Judge.

text:
    Learia Chad MASSALINE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2666.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Learia Chad Massaline appeals the amended order revoking his probation. We affirm but remand for the trial court to strike two findings.

The trial court found that Massaline violated conditions five, seven, twenty-seven, and twenty-eight of his probation. The greater weight of the evidence supports the finding that Massaline violated conditions five and seven. The State concedes that the trial court erred in finding that Massaline violated conditions twenty-seven and twenty-eight because the State failed to present evidence of his ability to pay the costs of supervision and court costs. Accordingly, these violations must be stricken.

The record is clear that the trial court would have revoked Massaline’s probation based on the violation of conditions five and seven alone. Accordingly, we affirm the revocation of Massaline’s probation but remand for the trial court to strike the findings that Massaline violated conditions twenty-seven and twenty-eight.

Affirmed; remanded with directions.

CASANUEVA and WALLACE, JJ., Concur.


author: PER CURIAM.

text:
    John P. McCarthy, Katherine A. McCarthy, Rodney C. Wade, Sally M. Wade, James Swetland, Elizabeth Swetland, and Bruce Wilkinson, Petitioners, v. HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, by and through its Board of County Commissioners, and Highlander Development, Inc., Respondents.
    No. 2D06-724.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Ralf G. Brookes, Cape Coral, for Petitioners.
    Deborah C. Blews, Assistant County Attorney, for Respondent Hillsborough County.
    Scott I. Steady and R. Marshall Rainey of Williams Schifino Mangione & Steady, P.A., Tampa, for Respondent Highlander Development, Inc.
   PER CURIAM.

We deny the petition for writ of certio-rari without prejudice to the petitioners seeking declaratory relief in the circuit court.

ALTENBERND, SALCINES, and KELLY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Karen BREWSTER, Appellant, v. Cheryl A. CASTANO, Kevin I. Castano, and Ignacio Castano, Appellees.
    No. 2D05-4283.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2006.
    R. Patrick Mirk, Tampa, for Appellant.
    D. Howard Stitzel, III, Plant City, for Appellees.
   VILLANTI, Judge.

Karen Brewster appeals the trial court’s order granting judgment on the pleadings in favor of Cheryl, Kevin, and Ignacio Castaño. The trial court concluded that Ms. Brewster violated the rule against splitting causes of action by raising successive claims that arose from one ■wrongful act. Because the court imper-missibly considered the pleadings in another case to reach its conclusion, we reverse.

In May 2004, Ms. Brewster filed a four-count amended complaint against the Castanos, asking for both monetary and in-junctive relief. In Ms. Brewster’s complaint, she contended that the Castaños were damaging and causing flooding to her property. She also asserted that they were inflicting emotional distress by shouting rude and insulting comments, physically harassing her, exposing themselves, cutting down her fence, threatening physical harm, and filing false police reports. In answer to Ms. Brewster’s complaint, the Castaños raised as an affirmative defense the rule against splitting causes of action. The Castaños contended that Ms. Brewster had raised the same claims against them in case number 00-01770, Division B. Ms. Brewster responded, specifically denying the affirmative defense and contending that the issues and parties in her two cases were not in fact the same. The trial court entered judgment on the pleadings, concluding that Ms. Brewster “has raised issues that either were or could have been raised in the prior litigation....”

It is well settled that a “trial court’s decision whether to grant a motion for judgment on the pleadings must be decided solely on the pleadings without reference to outside matters.” Schwartz v. Greico, 901 So.2d 297, 299 (Fla. 2d DCA 2005). “ ‘In considering such a motion, all material allegations of the opposing party’s pleading are taken as true, and all of the movant’s allegations which have been denied are taken as false.’ ” Jaramillo v. Dubow, 588 So.2d 677, 677 (Fla. 3d DCA 1991) (quoting Butts v. State Farm Mut. Auto. Ins. Co., 207 So.2d 73, 75 (Fla. 3d DCA 1968)). When there has been no reply to an affirmative defense, it is deemed to be denied and therefore false. Id. at 678.

In answer to Ms. Brewster’s complaint, the Castaños raised the affirmative defense that Ms. Brewster was improperly splitting causes of action. Ms. Brewster specifically denied the affirmative defense in her response. To resolve the issue, the trial court had to have reviewed matters outside the pleadings. See J & J Util. Co. v. Windmill Village by the Sea Condo. No. I Ass’n, 485 So.2d 36, 36 (Fla. 4th DCA 1986). Therefore, the trial court erred in granting judgment on the pleadings, and we must reverse the trial court’s order. We remand for further proceedings in which the Castaños may raise their splitting causes of action defense in a motion for summary judgment. See Jaramillo, 588 So.2d at 678. In a motion for summary judgment, the Castaños may rely on undisputed material facts outside the pleadings. See Soler v. Secondary Holdings, Inc., 771 So.2d 62, 72 (Fla. 3d DCA 2000) (“A motion for summary judgment goes outside the pleadings and tests the sufficiency of facts to which substantive legal principles are applied.” (internal quotation omitted)).

Reversed and remanded.

CANADY and STRINGER, JJ., Concur.

      . The rule against splitting causes of action is an aspect of the doctrine of res judicata. Dep't of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 570 So.2d 892, 901 (Fla.1990). It "makes it incumbent upon plaintiffs to raise all available claims involving the same circumstances in one action.” Id. The rule against splitting causes of action is based on the principles that there should be finality in court cases and multiple lawsuits arising out of a single incident are costly, inefficient, and cause substantial delay in resolving disputes. Id.


author: YILLANTI, Judge.

text:
    Dajuan Donya BOWSER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4158.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2006.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   YILLANTI, Judge.

Dajuan Bowser, who was convicted of delivery of cocaine within 1000 feet of a school and possession of cocaine, appeals the revocation of his probation for violating condition 5 by committing the new offense of loitering and prowling and condition 27 by failing to comply with his community service requirement. We reverse for the reasons discussed below.

Condition 5

Condition 5 required Bowser to live or remain at liberty without violating the law. The proper standard for finding a law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense. Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005). “ ‘Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking’ probation.” Id. (quoting Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992)).

Here, Bowser was allegedly loitering and prowling in violation of section 856.021, Florida Statutes (2004). Section 856.021(1) makes it unlawful “to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” Essentially, the State must prove two elements to establish the crime of loitering and prowling — (1) loitering and prowling in a manner not usual for law-abiding citizens and (2) loitering and prowling under circumstances that threaten the public safety. Von Goff v. State, 687 So.2d 926, 928 (Fla. 2d DCA 1997); E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999).

As to the first element, a police officer testified that he saw Bowser and three other people in an Ybor City parking lot at about 2:00 in the morning. However, the officer later admitted that most places in Ybor City are open until 3:00 in the morning. Therefore, a parking lot in Ybor City at 2:00 in the morning is not an unusual place for law-abiding citizens to be.

As to the second element, the police officer testified that he watched Bowser and his companions for twenty minutes. He observed them “walking down the street looking into unoccupied vehicles.” “They walked all the way down to an area where a parking lot which is very dark,” continuing to look inside vehicles. Then, they “cut down behind the college ... sat on the wall for a while, looked around” and decided to leave. The police officer did not observe Bowser or his companions trying to open any vehicles. When he asked Bowser what he was doing, Bowser said that he was on his way home. Wflien Bowser later identified his home as being in the opposite direction, the officer decided that he did not believe that Bowser was on his way home.

The record reflects no evidence of the required imminent threat to the peace, public safety, or property. The possibly suspicious circumstances of four people looking into cars in a dark parking lot was not sufficient to raise justifiable alarm of an immediate threat. See T.W. v. State, 675 So.2d 1018 (Fla. 2d DCA 1996) (holding that a juvenile’s presence near a closed pawn shop at 4:00 a.m. while carrying a chain saw case did not create imminent threat to public safety); R.D.W. v. State, 659 So.2d 1193 (Fla. 2d DCA 1995) (holding that three boys wearing jackets on a warm night, riding bikes, appearing to hide their bikes and jackets in some bushes, and scanning vehicles and people in a parking lot did not constitute an imminent threat to public safety). The fact that the police officer, after arresting the group, found a screwdriver in the possession of one person does not affect our analysis because the “offense of loitering and prowling must be completed prior to any police action.” E.C., 724 So.2d at 1245 (discussing how the possession of a twelve-inch screwdriver gives support to a suspicion of imminent criminal activity only after the fact). The same is true of the police officer’s discovery upon questioning Bowser that Bowser seemed to be taking a roundabout route home — it did not create the requisite justifiable and reasonable alarm or immediate concern. See Von Goff, 687 So.2d at 928 (“While the statute gives the suspect an opportunity to explain his presence and conduct, the criminal conduct must be completed prior to any action by police officers.”) (quoting E.B. v. State, 537 So.2d 148, 150 (Fla. 2d DCA 1989)).

Therefore, we conclude that the State failed to establish by a preponderance of the evidence that Bowser was loitering and prowling.

Condition 27

Bowser also argues that the State failed to establish a willful and substantial violation of condition 27’s requirement that he perform 100 community service hours at the rate of five hours per month. We agree. This court has previously held that “ ‘the omission’ from a probation order ‘of a specified date by which [a probationer] was required to complete [a particular] task’ combined with ‘the fact that [the probationer] was not at the end of his probationary period’ results in ‘the State’s inability to prove a willful and substantial violation.’ ” Shipman v. State, 903 So.2d 386, 387 (Fla. 2d DCA 2005) (quoting Oates v. State, 872 So.2d 351, 353 (Fla. 2d DCA 2004)); see also Bryant v. State, 931 So.2d 251, 253 (Fla. 2d DCA 2006) (holding that “the State cannot prove a willful and substantial violation of a condition to complete community service hours, even when the order contains a per-month rate of completion, when the order does not contain a beginning and ending date for completing the hours and when there is sufficient time remaining for the probationer to complete the required hours at the required rate”).

The trial court’s probation order did not specify a beginning or end date for Bowser to complete his community service hours. Bowser was serving a three-year probationary term that started in December 2004. His probation officer testified that Bowser was incarcerated from January 4, 2005, until April 4, 2005, but that he had two-and-one-half months during which he could have completed community service— April, May, and half of June. On April 27, 2005, Bowser submitted proof that he completed five hours. He did not provide proof of completion of any other community service. However, at the time .his probation was revoked, Bowser had over two years remaining on his term during which he could have completed 100 hours of community service at the rate of five hours per month. More than adequate time remained for Bowser to complete his obligation by performing community service at the rate of five hours per month for the requisite number of months. Because the State failed to establish a willful and substantial1 violation of condition 27 and a violation of condition 5, we reverse and remand for Bowser’s probation to be reinstated.

In the future, trial judges imposing a per-month hour requirement for community service might announce the condition more clearly by specifying a beginning and ending date for completing the hours. Without a beginning and ending date for completion, the State is limited in its ability to prove a willful and substantial violation of probation — it can seek to establish a violation of condition 27 only when there is insufficient time remaining for the probationer to complete the required hours at the required rate.

Additionally, we note that it may be wise to update the probation forms to facilitate compliance with the case law to specify a beginning and ending date for completing community service hours. The community service requirement is a special condition for probation. See § 948.031, Fla. Stat. (2004) (indicating that a court may require community service as an additional condition of probation); Fla. R.Crim. P. 3.986(e) (not listing community service as a standard condition of probation). It is a standard condition for community control. Fla. R.Crim. P. 3.986(f) (listing public service as standard condition 11). So, redrafting the forms may require consideration by both the Florida Bar Criminal Procedure Rules Committee and the Criminal Court Steering Committee to insure that forms provided to trial judges throughout the state use appropriate language.

Reversed and remanded for reinstatement of probation.

WALLACE and LaROSE, JJ., Concur.

      . In Eubanks v. State, 903 So.2d 1005 (Fla. 2d DCA 2005), this court found that the trial court did not abuse its discretion when the probation officer was unable to confirm that Eubanks had performed any community service hours during one month of his probation. However, Eubanks does not contain a thorough discussion of the facts, and it does not disclose the important fact of whether there was sufficient time remaining for the probationer to complete the required number of community service hours. Therefore, Eu-banks does not guide our analysis on this issue. Rather, we follow the reasoning of Bryant, 931 So.2d 251, and Shipman, 903 So.2d 386.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Gary KASPARIAN, Appellee.
    No. 4D05-3671.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals an order suppressing drugs dropped by the defendant upon being approached by officers. The trial court' suppressed the evidence on the ground that the officers’ “show of authority” constituted an invalid stop. We hold that the officers’ conduct did not constitute a stop of the defendant. Because the defendant dropped the drugs prior to any stop, the court erred in granting the motion to suppress.

At the suppression hearing, the officers involved testified to the incident leading to the recovery of the drugs and the arrest of the defendant. Detectives Mesa and Faust were patrolling an area at night when they observed a vehicle traveling with a broken taillight. The car then pulled into an apartment complex parking lot and stopped. The officers parked about twenty feet from the vehicle and saw Kasparian, a pedestrian, approach the vehicle on the driver’s side. Mesa observed Kasparian hand the driver of the vehicle an unknown amount of U.S. currency in exchange for an unknown substance. Although he could not see the item, Mesa explained that based on his training and experience, he believed that the defendant and the driver were engaged in a narcotics transaction. Mesa also testified that a lot of narcotics transactions occurred in the area.

After Mesa saw the hand-to-hand transaction, he and Detective Faust, wearing police uniforms, exited the vehicle. Mesa testified that as they approached he did not say anything and did not recall Detective Faust announcing they were from the Broward Sheriffs Office. As they began to approach the vehicle, Kasparian saw them and threw down what he had in his hand. Mesa testified he never lost sight of the object that Kasparian dropped to the ground about a foot away. When he picked up the object, Mesa thought it was crack cocaine and conducted a field test which indicated it was cocaine. At that point, Mesa arrested Kasparian.

The trial court suppressed the evidence, finding that although the officers thought they saw a drug transaction, there was no clear evidence of that. Thus, the court found that there were no grounds for a stop based upon probable cause or reasonable suspicion. Further, the court reasoned that because the officers walked up to the car, there was a show of authority which made Kasparian drop the drugs. The state appeals this ruling.

The standard of review for motions to suppress is articulated in Rivera v. State, 859 So.2d 495 (Fla.2003):

[Ajppellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.

Id. at 509. See also Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

The trial court determined that a stop occurred without probable cause or reasonable suspicion. We disagree with the trial court’s conclusion that a stop occurred prior to Rasparían dropping the drugs. Instead, we conclude that what transpired in this ease was a consensual encounter, not a stop.

State v. R.R., 697 So.2d 181 (Fla. 3d DCA 1997), is factually similar to the present case. In R.R, the defendant was charged with possession of a controlled substance. Based on a tip, two officers conducted surveillance of an abandoned house for fifteen minutes. They observed R.R. sitting in front of the house, listening to the radio. The officers approached. R.R. did not see the officers approach because he was adjusting his radio. When R.R. looked up, he saw two officers standing three feet from him, wearing badges and guns. Before either officer spoke, R.R. dropped two clear plastic bags containing narcotics. The officers retrieved the bags and charged R.R. with possession of a controlled substance. The trial court granted the motion to suppress the evidence finding that a show of authority existed at the point at which R.R. dropped the drugs.

The state appealed and the Third District disagreed with the trial court, finding that because the officers were several feet away from R.R. when he dropped the bag and the officers did not say a word to R.R., the encounter was consensual and did not require reasonable suspicion. The Third District explained that:

[T]he trial judge based his ultimate ruling on the erroneous impression that merely walking up to the defendant was a show of authority, and precluded the use of evidence on that issue. This is clearly not the law. We conclude that what transpired was really no different than any consensual encounter; in fact, it could be viewed as a pre-consensual encounter, in that the police did not even have time to speak before R.R. voluntarily dropped the bags of drugs.

Id. at 184.

Just as in R.R., the officers simply walked toward Kasparian and never said anything to him before he dropped the drugs. Thus, it is more like a “pre-consen-sual encounter” described by the Third District.

To determine whether there has been a consensual encounter, a court must consider all of the circumstances surrounding the encounter to determine whether the conduct of police officers would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter. State v. Livingston, 681 So.2d 762, 764 (Fla. 2d DCA 1996). Traditionally, the factors courts have considered in determining whether a seizure has occurred include: “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.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). None of these factors appear in the instant case. The court found only that the officers approached wearing uniforms, badges, and weapons and did not even announce themselves before Rasparían threw down the drugs. This is how any officer could be dressed on the street. For this to constitute a “show of authority” such that it constituted a stop would essentially eviscerate the law regarding consensual encounters.

Kasparian relies on Hollinger v. State, 620 So.2d 1242 (Fla.1993). However, we find this factually distinguishable. In Hol-linger, the defendant was charged with possession of cocaine and sought to suppress the cocaine as an unlawful seizure by police. Seven to eight members of the Orange County Sheriffs Department conducted a drug sweep. They pulled into a parking lot, exited their vehicle, and announced “Orange County Sheriffs Office.” Clad in black masks and SWAT-team-type regalia, they approached a group of people. Hollinger put his hand behind his back and dropped a tissue containing cocaine.

Upon review of a decision of the Fifth District determining that the defendant had not been illegally stopped at the time, the supreme court determined that these facts did not constitute a consensual encounter. As is readily apparent, the show of force in Hollinger is far more coercive than two officers walking up to a parked car.

For these reasons, we reverse the trial court’s order and remand for further proceedings.

KLEIN and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Nelson ECHEVARRIA, Appellee.
    No. 4D05-3683.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

The State of Florida appeals an order granting appellee Echevarria’s motion to suppress evidence. Although we disagree with the trial court’s determination that Echevarria was subject to an illegal stop, we conclude that the evidence is insufficient to show that the drugs were in plain view, taken in a light most favorable to sustaining the trial court’s ruling. We therefore affirm.

Officer William Evans testified that he was conducting surveillance in the parking lot of a restaurant. He was in an unmarked police car and was wearing plain clothes. At approximately 1:00 a.m., Evans saw Echevarria and an unidentified male get into a red Explorer. Echevarria sat in the driver’s seat and the other male sat in the passenger seat. The car did not move for a little while, so Evans decided to drive over to the car and see what was going on.

Evans parked approximately two spaces away and exited his vehicle. He walked over with his lit flashlight and as he approached the car, the passenger opened his door. Evans looked in, shined his flashlight, and said, “How you guys doing?” He saw Echevarria holding a cellophane cigarette wrapper containing a white substance. Based on his training and experience, Evans knew the substance was suspect cocaine.

Echevarria looked nervous and immediately started stuffing the baggie between the driver’s seat and the center console. Evans told Echevarria to put his hands where he could see them, and he then called for back-up. When back-up arrived, Evans tested the substance and it tested positive for cocaine.

Oh cross-examination, Echevarria’s counsel asked Evans if he leaned in to see what was going on. He responded that he did not lean into the car, but that he “leaned at [the passenger’s] side.” He stated that he did not break the plane of the doorway. Nevertheless, Echevarria impeached the officer with his deposition where he said “I leaned a little bit like this looking at him,” and “as [the passenger] opened the door I just leaned in.” The court itself questioned the officer, asking him to demonstrate how he leaned in the vehicle.

Echevarria then testified that he was in the vehicle for about five minutes before Evans approached him and suddenly opened the passenger door. He saw the word “police” on Evans’ vest, and Eche-varria dropped the bag down by the seat.

After hearing the evidence and at a second hearing the court opined that the encounter was not consensual because the officer blocked Echevarria from getting out of the vehicle and was standing there with a flashlight. The court also had doubts as to how the officer leaned into the vehicle. Stating that it was not satisfied with the evidence, the court granted the motion to suppress, and the state appeals.

Our review of an order on a motion to suppress requires deference to the trial court on the factual findings but de novo review of the application of facts to the constitutional issues.

[Ajppellate courts should continue to accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.

Rivera v. State, 859 So.2d 495, 509 (Fla.2003). The state contends that given the undisputed facts of this case, the encounter was consensual and the officer saw the cocaine in plain view. Although we agree that the encounter was consensual, we must defer to the trial court in its determination that cocaine was not in plain view due to the officer having to lean into the vehicle to see the cocaine.

In order to validate a seizure predicated upon the plain view doctrine, the state must prove three elements: (1) the police must lawfully be in a position from which they view an object; (2) the object’s incriminating character is immediately apparent; and (3) the officers have a lawful right of access to the object.

State v. Drysdale, 770 So.2d 301, 302 (Fla. 4th DCA 2000). The issue in this case comes down to whether Evans was in a lawful position from which he could view the cocaine.

Despite the court’s conclusion to the contrary, the initial approach by the officer to the vehicle was a consensual encounter. See Roberts v. State, 566 So.2d 848 (Fla. 5th DCA 1990). In Roberts, two officers were patrolling a parking lot to check for vehicle burglaries. They observed Roberts’ vehicle with two people in the front seat bent over. One officer approached the driver to obtain identification. The second officer approached the passenger side and shined his flashlight inside. Seeing a mirror on the floor with powder on it, the officer arrested Roberts. The trial court denied a motion to suppress the cocaine.

On appeal, the Fifth District concluded that the action of the officers did not rise “to the level of an investigatory detention prior to the viewing of the cocaine. The officer observed the cocaine in plain view before any arrest or seizure occurred.” Id. at 849-50. It further found that the use of the flashlight did not violate Fourth Amendment rights and that Roberts “had no legitimate expectation of privacy while in a parked automobile in a parking lot to which the public had access, as to illegal activities which would have been as visible to a private security guard or a police officer as to a private citizen.” Id. at 850. Based on this, the Fifth District affirmed the denial of the motion.

Similarly, the court in State v. Ecker, 550 So.2d 545 (Fla. 2d DCA 1989), also held that the use of a flashlight to illuminate the interior of a vehicle was not improper. In Ecker, an officer patrolling a parking lot saw Ecker and a female companion sitting in the front seat of a vehicle. He approached the vehicle without being observed by its occupants and shined his flashlight onto Ecker’s lap, where Ecker and his companion were both looking. At this point he saw a clear plastic bag containing cocaine and saw Ecker rolling a marijuana joint. The Second District held that the officer’s mere approach to the vehicle was not a seizure, and Ecker was not seized until the deputy opened the door and arrested him.

Thus, contrary to the trial court’s conclusion, Officer Evans’ approach to the vehicle with a flashlight did not constitute a seizure of Echevarria. However, the court also questioned whether the cocaine was in plain view of the officer before he leaned into the vehicle.

The extent to which the officer actually entered the vehicle with his body in order to see the cocaine is disputed. The officer actually demonstrated how he leaned into the vehicle. The trial court was the trier of the historical facts and in this case was clearly able to observe the demeanor of the witnesses and the in-court demonstrations of their actions. The court expressed doubt as to the positioning of the officer in the vehicle. We must afford a presumption of correctness to the court’s implicit factual conclusion that the officer had to lean into the vehicle to observe the cocaine. This being the case, the drugs were not in plain view.

Affording the presumption of correctness to the trial court, we affirm the trial court’s suppression of the cocaine.

KLEIN and GROSS, JJ., concur.


text:
    Bryon REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4591.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bryon Reddick was charged with trafficking in cocaine, possession of cannabis (misdemeanor), and resisting an officer without violence (misdemeanor). A jury found Reddick guilty as charged on the cocaine trafficking count and the possession of cannabis count and not guilty of the resisting without violence count. Reddick appeals on three grounds. We write to address the denial of Reddick’s motions to dismiss counsel and proceed pro se. We reverse on this ground and affirm in all other respects.

Prior to trial, Reddick filed motions to dismiss his counsel and proceed pro se. The trial court held a hearing on the motions. At the hearing, Reddick expressed his desire to dismiss his counsel and proceed pro se. The trial court conducted the following colloquy and denied Reddick’s motions:

COURT: Mr. Reddick, you’ve indicated to the Court that you would rather represent yourself—
REDDICK: I would, Your Honor.
COURT: —than have Mr. O’Connell represent you. Why don’t you tell me your experience in court and your education.
REDDICK: I have — I done have extensive education.
COURT: How far did you go in school?
REDDICK: I obtained a GED while I was incarcerated.
COURT: AGED?
REDDICK: Yes, sir. Prior to that, I only was in the sixth grade.
COURT: Have you ever sat through a trial before?
REDDICK: No, I haven’t.
COURT: Have you ever studied any law to understand professionally — to understand, for example, how to pick a jury?
REDDICK: No, I haven’t.
COURT: Have you ever attempted or studied to see how you would examine a witness or how—
REDDICK: No, I haven’t.
COURT: —or how you would address a jury on behalf of yourself?
REDDICK: No, sir, I haven’t.
COURT: Mr. Gallagher, for example, has been an attorney for what, in excess of 25 years?
STATE: About a hundred years.
COURT: Close to a hundred, I misspoke. Obviously very skilled, very talented lawyer.
REDDICK: I understand.
COURT: How are you going to represent yourself and give yourself a fair day in court with your total lack of qualifications and ability?
REDDICK: I haven’t thought about it, but I — I don’t feel comfortable going to trial with Mr. O’Connell.
COURT: All right. The Court declines Mr. Reddick’s offer to proceed pro se.
STATE: Thank you, Judge.
COURT: The Court, having conducted a Faretta inquiry, determines that Mr. Reddick doesn’t have the qualifications, skills, or experience to completely or effectively represent himself.

Thereafter, Reddick filed another set of motions seeking to dismiss his counsel and proceed pro se. The trial court held a hearing on these motions. Reddick indicated at the beginning of the hearing that he was asking to represent himself. The trial court conducted the following colloquy and again denied Reddick’s motions:

COURT: Why don’t you tell me your experience in handling criminal matters as far as trial or case preparations?
REDDICK: I have none. I can’t have Mr. O’Connell. There is a conflict of interests. I don’t feel I’ll be adequately represented by Mr. O’Connell.
COURT: You voiced that for whatever attorney has been appointed to represent you.
REDDICK: As Your Honor Judge Gates stated, he found Mr. O’Connell competent. For one reason, he’s telling me things he’s going to do in court he doesn’t do, he seems to not be able to remember things. I don’t want to go to trial with him.
COURT: Let’s talk about your ability to represent yourself.
You have filed a motion, requesting you have the opportunity to represent yourself.
You understand you’re looking at some serious time if convicted, mandatory minimum of 15 years, minimum mandatory, if you are convicted.
How far did you go in school?
REDDICK: IhaveaGED.
COURT: How long ago did you get it?
REDDICK: Federal prison.
COURT: When?
REDDICK: When I was incarcerated.
COURT: How many times have you actually sat through a trial?
REDDICK: Never. Never sat through a trial.
COURT: How many times, other than these cases, have you been in court?
REDDICK: A few times. I can’t be specific.
COURT: Have you ever represented yourself before?
REDDICK: No, but in federal court, I have had the court assist my counsel while I was in federal custody.
COURT: Now, this ease is set for jury trial. Tell me what you know about evaluating a jury.
REDDICK: It will be a first experience for me.
COURT: Do you know anything about the mechanics of how to do it or question a jury so one can be selected that can be fair and impartial to both you as well as the State?
REDDICK: No, I don’t.
COURT: Do you know the process of exercising peremptory challenges or what may constitute a challenge for cause?
REDDICK: No, I don’t.
COURT: Do you know how to make an opening statement and to tell the jury what evidence you believe will be presented and what will be admissible or acceptable in that opening statement as opposed to what will not be?
REDDICK: If presented with, I believe I could.
COURT: Do you know how to examine witnesses, cross-examine witnesses?
REDDICK: I believe I could if the time came, I believe I would be able to.
COURT: Tell me what you know about making objections, what you know about the case law and legal issues involved in making a proper objection.
REDDICK: I mean could you be, you say case law, case law, I’m asking if you can be more specific?
COURT: There are certain grounds and comments that a witness may make, certain issues if something is brought into evidence that may be objected to. Those objections are founded either by statute, rules or case law.
REDDICK: Wouldn’t that be like discovery, though?
COURT: No, sir.
REDDICK: Oh.
COURT: Mr. Reddick, I’m confident, from your testimony, that you have plenty of case law. As a matter of fact, you probably have too much because you probably don’t have things applicable or relevant to what you’re working on.
REDDICK: Correct.
COURT: One of the other things I’m confident of also is you don’t have the first idea what to do with them.
REDDICK: I don’t but address them to counsel and expect him to handle it, which he hasn’t.
COURT: The issue of whether or not you’re competent to represent yourself is clear. You’re not.
You don’t have the wherewithal to properly prepare your defenses and to represent yourself. You’re being prosecuted by not just an attorney but the head of the drug trafficking unit, who’s been an assistant state attorney for as long as I can remember, in excess of 25 years and who is a very experienced trial attorney.
In order for you to have your rights protected, you also need to be represented by someone who is experienced—
REDDICK: And effective.
COURT: And competent.
And you know something, the Court appointed someone of that caliber and quality to represent you.
The Court is absolutely confident, in knowing Mr. O’Connell and seeing him work, that he will give you the best defense you’re entitled to.
REDDICK: Your Honor, if I may speak, Your Honor?
COURT: Yes.
REDDICK: I demand my right to represent myself.
COURT: Mr. Reddick, you have a month from now to get yourself educated.
REDDICK: Right.
COURT: And if you show me, come August 16th, that you are sufficiently educated to represent yourself, that you’re ready to go to trial on that day, and I’ll reconsider it. I’ll tell you what, look you square in the face and Mr. O’Connell and everyone else, August 16th, 32 days from now, you’re going to trial.
REDDICK: If I have to go by myself, I will.
COURT: This case is now, in September, it will be three years old.
And one of the reasons it is three years old is because of these repetitive motions you filed on counsel and made it difficult for anyone to properly represent you.
Mr. O’Connell is your lawyer. I’m telling you that, cautioning you that. Absent hearing something that shows me that you have really been able to study and figure out how to represent yourself, this Court is not going to have you representing yourself when you have not shown the Court an iota of ability to do so.

The standard of review applicable to trial court rulings on motions seeking the right to self-representation in a criminal trial is abuse of discretion. See Wheeler v. State, 839 So.2d 770, 771 (Fla. 4th DCA 2003); Beaton v. State, 709 So.2d 172, 174 (Fla. 4th DCA 1998).

In order for a defendant to be permitted to represent himself, he must “knowingly and intelligently” forgo his constitutional right to counsel. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Furthermore:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”

Id. (internal citations omitted). As such, “a trial judge is required to conduct a Faretta inquiry before allowing a defendant in a criminal case to proceed without counsel.” State v. Young, 626 So.2d 655, 655 (Fla.1993). “Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.” Fla. R.Crim. P. 3.111(d)(3).

Additionally, as discussed in State v. Bowen, 698 So.2d 248 (Fla.1997):

Based on the foregoing, we hold that once a court determines that a competent defendant of his or her own free will has “knowingly and intelligently” waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented. See Fla. R.Crim. P. 3.111. The court may not inquire further into whether the defendant “could provide himself with a substantively qualitative defense,” Bowen [v. State], 677 So.2d [863] at 864 [ (Fla. 2nd DCA 1996) ], for it is within the defendant’s rights, if he or she so chooses, to sit mute and mount no defense at all.
Where a competent defendant “knowingly and intelligently” waives the right to counsel and proceeds unrepresented “with eyes open,” he or she ipso facto receives a “fair trial” for right to counsel purposes. As for Mr. Bowen, no citizen can be denied the right of self-representation — or any other constitutional right — because he or she has only a high school diploma.

Id. at 251, 252. This Court has likewise held that a defendant’s lack of legal experience or post-secondary education is not a consideration under Faretta. See McKinney v. State, 850 So.2d 680, 682 (Fla. 4th DCA 2003) (“The trial court can lead a defendant to the water of an intelligent decision about the dangers of self-representation, but it cannot make him drink.”); Wheeler, 839 So.2d at 772; Beaton, 709 So.2d at 174.

Faretta requires the trial court to inquire into whether a defendant’s desire to defend himself is “knowing and intelligent.” As part of this inquiry, the trial court can and should inform the defendant of the potential perils and pitfalls of self-representation. However, the trial court cannot, despite the possible impact of these perils and pitfalls on a defendant lacking legal knowledge and advanced education, conclude that the defendant cannot represent himself once he is aware of the danger and chooses to proceed with “eyes open.”

The trial court in the present case failed to make the necessary finding under Faretta that Reddick knowingly and intelligently sought to waive his right to counsel. Instead, the trial court considered Reddick’s competence to represent himself, although not a subject of inquiry under Faretta, perhaps in a noble attempt to interpose itself between Reddick and any upcoming danger. Because of these errors, we reverse and remand for a new trial before which the trial court should, if Reddick again seeks to represent himself, conduct a Faretta inquiry limited to his knowing and intelligent acceptance of the perils and pitfalls of self-representation.

Reversed and Remanded.

GUNTHER, FARMER and GROSS, JJ., concur.


author: STEVENSON, C.J.

text:
    Anna GEBIS a/k/a Anna Gebis-Slowinska, Appellant, v. The OAKS CONDOMINIUM ASSOCIATION, INC., et al., Appellee.
    No. 4D05-2736.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Casey A. Fundaro of Tripp Scott, P.A., Fort Lauderdale, for appellant.
    Richard A. Sherman, Sr. and Richard A. Sherman, Jr. of the Law Offices of Richard A. Sherman, P.A., and David R. Strong of the Law Offices of Leonard C. Bishop, Fort Lauderdale, for appellee.
   STEVENSON, C.J.

In this personal injury action, a jury found The Oaks Condominium Association solely liable for Anna Gebis’s injuries and awarded her the exact amount of her past medical expenses. The jury awarded nothing for past non-economic damages, future medical expenses, and past or future economic damages. Gebis filed a motion for new trial, contending that the jury’s verdict is inadequate given its finding of liability and award of damages for past medical expenses and that a new trial on non-economic damages is warranted. We disagree and affirm the trial court’s denial of the motion.

Gebis testified at trial that she was injured on July 4, 1999, when she tripped and fell walking to a barbeque at The Oaks. According to Gebis, although she was in pain and unable to walk, she did not seek immediate medical care because the injury occurred on a Sunday, during a holiday, and she “didn’t want to bother anybody.” When she went to the emergency room the following day, her leg was swollen and discolored. She was diagnosed with a nondisplaced fracture near her left little toe (fifth metatarsal) and received therapy until March 2000. Gebis alleged she stopped receiving medical care because she did not want to complain, did not want to take time off from work, and had financial constraints. The parties presented conflicting evidence regarding Ge-bis’s contribution to, and the permanence of, the injury.

During closing argument, counsel for Gebis asked that she be compensated $5,000 for “hav[ing] a black foot and horrible pain.” Counsel also suggested that when awarding damages, the jury also consider her “disability, physical impairment, disfigurement, mental anguish, [and] inconvenience.” Regarding inconvenience, Gebis’s attorney specified only that “[tjhere’s several past inconveniences. How much, I don’t know.” As to why Gebis was not seeking future lost earnings, counsel informed the jury that “[s]he wasn’t affected at work.”

“When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge.” Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). The Supreme Court of Florida has instructed that an “appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion, to wit, ‘discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)). Under the circumstances before us, we cannot say the trial court was unreasonable in making its determination.

We are aware that, in Manasse, the supreme court quoted with approval Judge Klein’s dissent in Allstate Insurance Co. v. Manasse, 681 So.2d 779, 784-85 (Fla. 4th DCA 1996), which stated:

“Future damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering.”

707 So.2d at 1111. However, simply because “there is generally something wrong” when a jury awards damages for past medical expenses but nothing for past pain and suffering does not mean there is always something wrong. In the instant case, we cannot say that the trial court abused its discretion in denying the motion for new trial.

Affirmed.

STONE, J., and BATEMAN, III, THOMAS HOWELL, Associate Judge, concur.


author: SHAHOOD, J.

text:
    Jeffrey GRAVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2804.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Jeffrey Graves appeals his conviction and sentence for one count of aggravated battery. He argues that the trial court erred in instructing the jury on self-defense, and by refusing to allow defense counsel to question the alleged victim about a civil suit filed against Graves as a result of the incident. We agree as to both points and reverse.

Graves resided with a friend named Christine Heap. On December 7, 2005, Graves and Heap were experiencing a plumbing problem and called a plumbing company to send someone out to their home. The company sent Eduardo Perez. A dispute developed between Perez and Graves, who also claimed to be a plumber, over the proper way to solve the problem. After trying a few different alternatives, Perez eventually used a high-pressure water jet in an attempt to clear the blocked pipes. Graves and Heap had told Perez not to use a water jet because the pipes were old and they feared it would damage them.

Perez testified that after he used the water jet, Graves began yelling at him, and Perez turned to leave. According to Perez, Graves then grabbed him, turned him around, and began hitting him. Perez collected his equipment and returned to his truck. Graves began hitting Perez while Perez was in the truck. Graves took a shovel out of the back of the truck and struck Perez in the head with the shovel’s blade end, causing a cut that required seven stitches. Graves turned the shovel around and began jabbing Perez with the handle. Perez suffered severe injury to one of his testicles.

Heap testified that she was inside the house talking on the phone with the plumbing company at the time Graves and Perez were fighting outside. According to Heap, she came out of the house to see Perez swinging the shovel at Graves, landing a blow that cut a gash in Graves’s hand. Heap said that Graves eventually managed to take the shovel away from Perez. Heap admitted that she did not see who began the altercation.

The trial court instructed the jury on both the use of deadly force and the use of non-deadly force. Both of the instructions stated that the use of force in self-defense “is not justifiable if you find Jeffrey Graves was attempting to commit, committing, or escaping after the commission of a Battery.” During the jury instruction conference, defense counsel objected to these instructions on the basis that they were circular.

Graves argues that the trial court erred in giving the instruction to the jury. Specifically, Graves claims that the circular nature of the instruction as given improperly told the jury that the defense of self-defense was not available to Graves if he was in the process of committing the same offense he was charged with. We agree.

“Florida law is clear that decisions regarding jury instructions rest within the sound discretion of the trial court and should not be overturned on appeal absent a showing of prejudicial error.” Gonzalez v. Rose, 752 So.2d 39, 41 (Fla. 3d DCA 2000). Reversible error is not found “unless the error complained of resulted in a miscarriage of justice, or where the instruction or failure to give a requested instruction was reasonably calculated to confuse or mislead the jury.” Reyka v. Halifax Hosp. Dist., 657 So.2d 967, 969 (Fla. 5th DCA 1995).

This court has held that in a single aggravated battery case, a jury instruction that the defendant’s use of force was not justifiable if he was committing, attempting to commit, or escaping after the commission of an aggravated battery is fundamental error in cases where no independent forcible felony was taking place. See Estevez v. State, 901 So.2d 989, 990 (Fla. 4th DCA 2005); Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002). In Giles, the same instruction was given, and this court found it to be “misleading and confusing such that the effect was to negate Giles’ only defense to the charge of aggravated battery.” Id. at 1265. This court stated:

[T]he plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent “forcible felony” at the time.... The instruction is normally given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony-

Id. (citations omitted).

We conclude that the trial court’s self-defense instructions were erroneous because they were “reasonably calculated to mislead or confuse the jury.” Id. (quoting Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999)). As in Giles and Estevez, Graves was charged with one count of aggravated battery, the very act for which he was claiming self-defense. The jury instructions on self-defense given by the trial court therefore effectively negated Graves’s only defense. See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).

The State argues that the evidence at trial established two separate batteries, and that the instruction was proper because the other battery was an independent forcible felony sufficient to warrant the instruction. We disagree. Graves was charged with only one count of aggravated battery, and the case was presented at trial as a single occurrence. Since Graves was not engaged in the commission of an independent forcible felony, the trial court erred in instructing the jury that the defense of self-defense was not available if he was in the process of committing the charged offense of aggravated battery.

We also reject the State’s contention that the self-defense instructions were not necessary because the evidence presented at trial did not support Graves’s claim of self-defense. See Hickson v. State, 917 So.2d 939, 940-41 (Fla. 4th DCA 2005)(distinguishing that case from Giles because Hickson presented no evidence at trial to support the inclusion of a self-defense instruction). “[A] defendant who requests a jury instruction on the theory of his defense is entitled to have it, so long as there is evidence in the record to support that theory, however flimsy that evidence may be.” Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987). Graves presented testimony at trial that conflicted with Perez’s version of events and supported Graves’s claim of self-defense. Heap’s testimony that she exited the house to see Perez swinging a shovel at Graves was sufficient to support Graves’s claim of self-defense and warrant a self-defense jury instruction, despite Heap’s admission that she did not see who started the altercation.

During cross-examination of Perez, defense counsel asked whether Perez was suing Graves for the injuries Perez sustained. The State objected, asserting that the question was irrelevant. Defense counsel maintained that the question was relevant to prove Perez’s bias in testifying. Defense counsel admitted she had no proof of a civil case, and was merely relying on information Heap had volunteered. The trial court sustained the State’s objection. Graves argues that this was error because it prohibited relevant inquiry into Perez’s motivation and possible bias in testifying at the trial. We agree.

The trial court has broad discretion to make determinations regarding the scope of cross-examination, and decisions to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion. See Eliakim v. State, 884 So.2d 57, 60 (Fla. 4th DCA 2004). However, rule 90.608(2) of the Florida Evidence Code provides that a party may attack the credibility of a witness by showing that the witness is biased. § 90.608(2), Fla. Stat. (2005). A defendant in a criminal case has considerable latitude in cross-examination to elicit testimony showing the bias of a witness. See Breedlove v. State, 580 So.2d 605, 608-09 (Fla.1991). “[WJhere a witness has filed a civil suit against the defendant or a third party (arising out of the criminal incident), inquiry into this is relevant to the witness’ motivation in testifying at the criminal trial.” Nelson v. State, 704 So.2d 752, 753 (Fla. 5th DCA 1998). However, such testimony should be excluded if “it is unjust to the witness and uncalled for by the circumstances.” Id. at 754.

We conclude that the trial court committed reversible error in sustaining the State’s objection to the question of whether Perez was bringing a civil suit against Graves as a result of the incident. Perez was the State’s only witness. Graves’s defense at trial was that he was defending himself from a fight instigated by Perez. Graves’s counsel attempted to show inconsistencies between Perez’s trial testimony, the testimony Perez gave in his sworn deposition, and Perez’s police statement. The trial court’s ruling prevented questioning designed to show that Perez’s pending civil case provided a financial motivation for his testimony that might explain the inconsistencies. Testimony that Perez was bringing a civil suit against Graves would be relevant, and would provide a proper subject upon which to impeach Perez’s testimony. See Nelson, 704 So.2d at 753. We cannot say that the improper exclusion of this evidence was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

We reverse Graves’s conviction for aggravated assault and remand for new trial.

Reversed and Remanded For New Trial.

FARMER and TAYLOR, JJ., concur.

      . The language of this instruction is based on section 776.041(1), Florida Statutes (2002).


author: STONE, J.

text:
    Robert NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3076.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Newman, convicted of one count of first-degree murder with a firearm and two counts of attempted first-degree murder with a firearm, challenges the denial of his motion to suppress statements. He claims that Miranda warnings that were properly given to him previously were “undercut” and “diluted” by a later “equivocal” exchange with the interrogating detective. Newman contends that his subsequent statements, which he terms queries, reflect that his earlier Miranda waiver was not understood, not knowingly given, and amounted to a request for counsel. We affirm.

The detective who took the statement was the sole witness at the suppression hearing. A videotape was played; however, the audio portion of the tape was of such poor quality that the court reporter noted the following in the transcript: “the audio is not good quality and the Defendant’s voice in [sic] almost indiscernible.” Despite this, the transcriber made an effort to transcribe the audio. As the detective was persuading Newman to disclose all, and after the warnings were given, the detective made, if accurately transcribed, the following comments:

Detective Martin: I mean Pm telling you I will stand up in court and say “this young man did the right thing. He told me the truth.”
We gotta answer to our mistakes. There’s no doubt. Do you agree with me?
Newman: All the way, man.
Detective Martin: All the way. Exactly.
Newman: I don’t have the money for an attorney. I can’t fight it in court. Can’t do nothing.
Detective Martin: I ... I guarantee you, if you don’t have the money for an attorney, one ... you will ... you’ll get an attorney. I mean there ... there’s no doubt about that. But you’re gonna get an attorney!] when ... when ... when you go to court. And you know, like I said, when you go to court, you know, you ... you gotta show ... you gotta show the court that hey, listen, you made a mistake.

The entire tape was played for the trial judge. Admission of the video into evidence at that time was discussed, but rejected, because it was the state’s only copy, with the stipulation that the original and a copy would be admitted at trial. The trial court found that Newman acknowledged his Miranda rights, that Newman’s was a knowing waiver, and that he was not invoking his right to counsel by his comments about not having money for an attorney.

Determination of the voluntariness of a confession and a knowing and intelligent waiver of Miranda rights requires an examination of the totality of the circumstances. Lukehart v. State, 776 So.2d 906, 917 (Fla.2000).

The issue on appeal is not an attack on the initial Miranda warnings. Instead, Newman claims that his waiver was later vitiated by his statement regarding the futility of a court battle and his inability to afford an attorney at trial, and, further, that this may have amounted to a request for counsel. Newman’s position is also that the detective was obligated to halt the questioning in order to ascertain whether Newman was invoking his right to counsel the moment that he mentioned the word attorney. The trial court did not err in rejecting Newman’s contentions.

In State v. Glatzmayer, 789 So.2d 297, 302 (Fla.2001), citing State v. Owen, 696 So.2d 715, 719 (Fla.1997), the court stated, “we hold that police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights.” Since the trial court, here, determined the initial waiver to be adequate, the question is whether Newman’s later statement was a clear and unequivocal request for counsel, requiring termination of the interview. The trial court properly concluded it was not, notwithstanding the possibility that the statement could be an equivocal indication of some misunderstanding regarding his right to counsel at trial if he was indigent.

Newman’s comments were not a request for counsel and were certainly not an unequivocal request. Taken in context, Newman was apparently responding to the detective’s comments on the need to do the right thing and that the detective would advise the judge that he had confessed to the truth. There is no indication that his response was intended as a request for counsel at that time.

As to other issues raised, we also find no reversible error or abuse of discretion.

STEVENSON, C.J. and POLEN, J., concur.

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

      . Given the poor quality of the transcript, it is arguable that a period should have been inserted here, followed by a capital "W" When.


author: CORTINAS, Judge.

text:
    Ian YORTY, etc., et al., Appellants, v. REALTY INVESTMENT & MORTGAGE CORP., INC., Appellee.
    No. 3D05-2129.
    District Court of Appeal of Florida, Third District.
    June 21, 2006.
    Rehearing and Rehearing En Banc Denied Oct. 3, 2006.

      Murray A. Greenberg, Miami-Dade County Attorney, and Eric A. Hernandez, Assistant County Attorney, for appellants.
    Stok & Associates, Aventura, and Robert A. Stok and Eric R. Thompson, for appellee.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, Judge.

The appellants, Ian Yorty, as tax collector for Miami-Dade County, and Joel W. Robbins, as former property appraiser for Miami-Dade County (collectively “County”), appeal from a non-final partial summary judgment continuing the stay of a tax deed sale and directing the County to apportion taxes for land owned by the appellee, Realty Investment & Mortgage Corp., Inc. (“RIMCI”). We reverse.

In 1996, Dade Foreign Trade Zone, Inc. (“DFTZ”) and Wynwood Community Economic Development Corporation (“Wyn-wood”) prepared and signed a document dedicating several real estate parcels, which each entity separately owned, into a six tract plat (“six tracts”) named the Wynwood Industrial Complex (“WIC Plat”). On December 24, 1996, the WIC Plat, which is comprised of Tracts A through F, was recorded in the county public records.

In 1997, the County property appraiser assigned folio numbers for each of the six tracts in accordance with the subdivisions set forth in the recorded WIC Plat. In 1997, and every year thereafter, the County assessed the six tracts and sent corresponding tax bills and notices to DFTZ and Wynwood. In 1998, DFTZ paid the entire 1997 tax bill for the six tracts described in the WIC Plat.

This case concerns only Tracts A and B. Since 1998, taxes on Tracts A and B have not been paid, and over $1.4 million in delinquent taxes are currently owed on those two tracts.

In December 2001, DFTZ conveyed a mortgage to the appellee, RIMCI, for certain subdivisions of property situated within Tracts A and B and owned by DFTZ (“Subtracts”). The Subtracts consist of approximately one-third (1/8) of Tract A and five-sixths (5/6) of Tract B. DFTZ defaulted under the mortgage and RIMCI filed a suit for foreclosure. In lieu of foreclosure, DFTZ granted a deed to RIMCI, and later conveyed a curative and corrective deed (“deed”) to RIMCI with a legal description referencing the WIC Plat. On February 5, 2004, RIMCI took fee simple title of the Subtracts. As we have noted above, Tracts A and B, in which the Subtracts are located, carried tax liens at the time RIMCI acquired title.

On August 9, 2004, RIMCI secured a buyer for the Subtracts. On November 1, 2004, RIMCI requested that the County apportion the delinquent taxes on the Subtracts by subdividing Tracts A and B in accordance with the description in the deed. On January 13, 2005, the County property appraiser sent RIMCI a letter denying its request. In April 2005, RIM-CI was served with notices stating that, unless all delinquent taxes on Tracts A and B were paid, a tax deed sale would occur on June 16, 2005.

On May 2, 2005, RIMCI filed its Verified Complaint alleging: (1) RIMCI is entitled to a declaratory judgment pursuant to section 86.011, et seq., Florida Statutes (2005), compelling the County to apportion the tax liens in accordance with RIMCI’s ownership of the Subtracts; (2) the County deprived RIMCI of its right to alienate the Subtracts without due process of law under 42 U.S.C. § 1983, et seq., (2005); and (3) RIMCI is entitled to a writ of mandamus compelling the County to apportion the delinquent tax liens in accordance with RIMCI’s ownership of the Subtracts. The trial court entered an ordei enjoining the tax deed sale.

The County filed a motion to dismiss RIMCI’s complaint and RIMCI filed a motion for summary judgment. The trial court granted RIMCI’s motion for summary judgment with respect to its claims for declaratory judgment and mandamus relief, and denied the County’s motion to dismiss with respect to the defenses concerning those claims. The trial court stayed the tax deed sale on the Subtracts and ordered the taxing authorities to provide RIMCI with a tax bill only on land owned by RIMCI so that RIMCI could pay the property taxes owed on the Subtracts.

We review the trial court’s entry of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment may only be entered if. there are no genuine issues of material fact and if the moving party is entitled to a judgment as a matter of law. Id. (citing Menendez v. Palms West Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)).

We also review the trial court’s denial of the County’s motion to dismiss RIMCI’s complaint de novo, as we are determining the legal sufficiency of RIMCI’s allegations as a matter of law. See Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So.2d 283, 286 (Fla. 5th DCA 2004)(holding that an appellate court does not defer to the trial court on matters of law); Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)(holding that whether a complaint sufficiently states a cause of action is an issue of law reviewed de novo). When considering a motion to dismiss, the allegations in the complaint are taken as true and viewed in a light most favorable to the nonmoving party. Merovich v. Huzenman, 911 So.2d 125, 127 (Fla. 3d DCA 2005)(citing Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003)).

The main issues on appeal are whether the trial court properly granted RIMCI’s motion for summary judgment and denied the County’s motion to dismiss as to RIMCI’s claims for declaratory judgment and mandamus relief. In order for a court to issue a writ of mandamus, “the petitioner must demonstrate a clear legal right to the performance of a ministerial duty by the respondent and that no other adequate remedy exists.” Morse Diesel Int’l, Inc. v. 2000 Island Boulevard, Inc., 698 So.2d 309, 312 (Fla. 3d DCA 1997) (citations omitted). Moreover, the respondent must have an “indisputable legal duty to perform the requested action.” Huffman v. State, 813 So.2d 10, 11 (Fla.2000)(citing Turner v. Singletary, 623 So.2d 537, 538 (Fla. 1st DCA 1993)). While mandamus is available to enforce an established legal right, it does not establish that right. Morse Diesel, 698 So.2d at 312.

With respect to a declaratory judgment action, the claimant must demonstrate that it is in doubt as to the existence or nonexistence of some right or status, and that it is entitled to have such doubt removed. See Bryant v. Gray, 70 So.2d 581, 584 (Fla.1954); Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992); Kelner v. Woody, 399 So.2d 35, 37 (Fla. 3d DCA 1981). Although this court has recognized that our review of a declaratory judgment is limited and the trial court’s decision is accorded a presumption of correctness, a declaratory judgment may be overturned on appeal if it is based on a misapplication of law or shown by the record to be clearly wrong. Williams v. General Ins. Co., 468 So.2d 1033, 1034 (Fla. 3d DCA 1985)(citing General Ins. Co. v. Ramanovski, 443 So.2d 302 (Fla. 3d DCA 1983); Groover v. Adiv Holding Co., 202 So.2d 103 (Fla. 3d DCA 1967)).

The County contends that the trial court erred in granting RIMCI declaratory and mandamus relief, and that the trial court failed to recognize that the recording of the WIC Plat in the county public records established the WIC Plat as the official county map of all lands identified on the plat. On the other hand, RIMCI contends that the County erred in its initial apportionment of the tracts because the tax rolls did not include an identification of RIMCI, or an accurate identification of DFTZ, RIMCI’s predecessor in interest.

We find that, in assessing taxes on the Subtracts, the County did not err in relying on the WIC Plat filed by DFTZ and Wynwood. Section 193.114, Florida Statutes (1997) and Florida Administrative Code Rule 12D-8.007 provide that the property appraiser shall prepare the real property assessment roll. § 193.114, Fla. Stat. (1997); Fla. Admin. Code R. 12D-8.007. In doing so, the property appraiser refers to the recorded plats identifying the real property. § 177.021, Fla. Stat. (1997); Fla. Admin. Code R. 12D-8.008(l)(a)l. Section 177.021, Florida Statutes (1997), provides as follows:

Legal status of recorded plats. — The recording of any plats made in compliance with the provisions of this chapter shall serve to establish the identity of all lands shown on and being a part of such plats, and lands may thenceforth be conveyed by reference to such plat.

§ 177.021, Fla. Stat. (1997). Similarly, Florida Administrative Code Rule 12D-8.008(l)(a)l provides as follows:

Where real property has been subdivided into lots according to a map or plat duly recorded in the office of the Clerk of Circuit Court of the county in which the lands are located, or is a condominium or co-operative apartment, the description of real property shall, in addition to Section, Township, Range, be based upon reference to such map or plat.

Fla. Admin. Code R. 12D-8.008(1)(a)1.

In the instant case, the property appraiser was entitled to rely on the WIC Plat in assessing the tracts. It is undisputed that, with the County’s approval in 1996, DFTZ and Wynwood recorded the WIC Plat in the county records. The recording of the WIC Plat properly established the WIC Plat as the official county map of all lands identified on the plat. Neither DFTZ nor Wynwood challenged the tax assessment on the tracts. In fact, DFTZ paid the entire 1997 tax bill for the six tracts described in the WIC Plat. Thus, we find that the property appraiser properly based its tax assessment on the WIC Plat.

RIMCI next contends that it is entitled to an apportionment of taxes and an assignment of new folio numbers for the real property that it owns. However, the County states and we agree that taxes on real property must be based on the identity of a recorded plat, and not on subdivisions of property made pursuant to a deed. Thus, absent a new and duly recorded plat, RIMCI is not entitled to an apportionment of taxes or assignment of new folio numbers.

Moreover, apportionment is improper because delinquent taxes on Tracts A and B, as described in the WIC Plat, became liens on the property, and remain attached to the two tracts until the taxes are discharged by payment. See § 197.122(1), Fla. Stat. (2005); § 192.053, Fla. Stat. (2005); In re Mulberry Phosphates, Inc., 283 B.R. 347, 348 (Bankr.M.D.Fla.2002)(holding that “pursuant to Fla. Stat. § 197.122, the unpaid property taxes become a statutory lien on the property to secure the amount of unpaid taxes”); In re Intelligent Med. Imaging, Inc., 262 B.R. 142, 143 (Bankr.S.D.Fla.2001)(holding that unpaid “taxes are secured by a statutory lien as provided by Fla. Stat. Ch. 197.122(1) and 192.053”). Since over $1.4 million in delinquent taxes are owed on Tracts A and B, tax liens attached to RIMCI’s Subtracts, thereby precluding the County from apportioning taxes based solely on RIMCI’s ownership of the Subtracts.

Finally, RIMCI contends that section 197.122(1), Florida Statutes (2005), authorizes the County to correct any error in its tax assessment at any time. Section 197.122(1) states, “any acts of omission or commission may be corrected at any time by the officer or party responsible for them....” See § 197.122(1), Fla. Stat. (2005). However, the County did not commit an act of omission or commission in basing its tax assessment on the WIC Plat filed in the public records by DFTZ and Wynwood. Rather, the County complied with both section 177.021 and Florida Administrative Code Rule 12D-8.008(l)(a)l, which establish the WIC Plat as the official county map for tax purposes. Furthermore, even assuming that the tax assessments on the tracts were erroneous, section 197.122(1) states, “[n]o act of omission or commission on the part of any property appraiser, [or] tax collector ... shall operate to defeat the payment of taxes.” § 197.122(1), Fla. Stat. (2005); see also City of Ft Myers v. Heitman, 149 Fla. 203, 5 So.2d 410, 413 (1941)(holding that “[i]f errors in making tax assessments on the rolls are not corrected, that does not affect the duty to pay or the authority to collect the tax when it is duly authorized by law").

Having concluded that the property appraiser properly relied on the WIC Plat in assessing taxes and that the delinquent taxes became liens on the tracts which cannot be apportioned, we find that the trial court improperly entered summary judgment in favor of RIMCI. The trial court concluded that the tax rolls did not identify RIMCI and DFTZ, RIMCI’s predecessor in interest, as the owners of the Subtracts, and that the folio numbers assigned by the County were not assigned in accordance with the ownership of the Subtracts. However, the trial court’s entry of a declaratory judgment in favor of RIMCI was not supported by a proper application of law. See, e.g., Williams, 468 So.2d at 1035 (reversing the trial court’s declaratory judgment in favor of the appellee because it was not supported by competent substantial evidence and a proper application of the law). A proper application of the Florida Statutes and Administrative Code requires that the property appraiser assess taxes based on the WIC Plat filed in the public records, and precludes an apportionment of taxes on property burdened by delinquent taxes. Therefore, a declaratory judgment should not have been entered in RIMCI’s favor.

RIMCI is also not entitled to mandamus relief because it cannot demonstrate that it had an “established legal right” to an apportionment, or that the County had an “indisputable legal duty” to apportion RIMCI’s taxes. See Huffman, 813 So.2d at 11; Morse Diesel, 698 So.2d at 312. On the contrary, RIMCI does not have an established legal right to an apportionment of taxes on land encumbered by tax liens. Furthermore, the County has a legal duty to base its taxation of real property on the recorded plat, and not on any subdivision of such property pursuant to a deed.

For similar reasons, we conclude that the trial court should have granted the County’s motion to dismiss RIMCI’s complaint for declaratory judgment and mandamus relief. It is significant that, in RIMCI’s complaint, RIMCI acknowledges that its Subtracts are “currently platted with parcels of other real property in the [WIC] Plat,” and that “past due” taxes are owed on the Subtracts and other property. These allegations actually support the County’s reliance on the WIC Plat in making its assessment and the County’s position that it cannot apportion RIMCI’s taxes because delinquent taxes are owed on the tracts. Even taking RIMCI’s remaining allegations as true, RIMCI cannot demonstrate that the County violated any law in denying RIMCI’s request to apportion the tax liens in accordance with RIM-CI’s ownership of the Subtracts, or that the County is legally required to apportion the taxes on property encumbered by tax liens. Thus, the trial court should have granted the County’s motion to dismiss RIMCI’s complaint.

Accordingly, we reverse the trial court’s grant of RIMCI’s motion for summary judgment continuing the stay of the tax deed sale and requiring apportionment, as well as its denial of the County’s motion to dismiss with respect to the claims for declaratory judgment and mandamus relief. We affirm the trial court’s determination that there are no indispensable parties which should have been joined in this action and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

      . The current property appraiser, as of July 4, 2005, is Frank Jacobs.

      . The trial court’s order did not address RIM-CI’s claim that the County deprived RIMCI of its right to alienate the Subtracts without due process of law under 42 U.S.C. § 1983, et seq.

      . We previously rejected RIMCI's argument that the trial court's non-final order denying the County's motion to dismiss was not ap-pealable. As stated in our April 24, 2006 order, the County is "allowed to complain on appeal about any interlocutory ruling by the trial court which led up to the issuance of the injunction.” The trial court’s order has an injunctive effect because it stays the tax deed sale until the County provides RIMCI with a statement apportioning the delinquent tax liens in accordance with RIMCI's ownership of the Subtracts. Therefore, the denial of the motion to dismiss is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(B). See Fla. R.App. P. 9.130(a)(3)(B)(providing that non-final orders with injunctive effect may be appealed).


author: PER CURIAM. SHEPHERD, J.,

text:
    PRINCE LOBEL GLOVSKY & TYE, LLP, Appellant, v. Charles N. ZALIS, individually, Charles N. Zalis, in his capacity as General Partner of the Charles N. Zalis Family Limited Partnership, a Virginia limited partnership, and North America Underwriting Managers, Inc., a dissolved Florida corporation, Appellees.
    No. 3D05-950.
    District Court of Appeal of Florida, Third District.
    June 28, 2006.
    Rehearing and Rehearing En Banc Denied Oct. 10, 2006.
    Josephs, Jack & Miranda and Susan S. Lerner, Miami, for appellant.
    Bales & Sommers and Richard M. Bales, Jr., Miami; Martin L. Nathan, Miami, for appellees.
    Before LEVY and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 48.193(1)(b), Fla. Stat. (2005); Ramos v. Preferred Med. Plan, Inc., 842 So.2d 1006 (Fla. 3d DCA 2003); Waxoyl, A.G. v. Taylor, Brion, Buker & Greene, 711 So.2d 1251 (Fla. 3d DCA 1998); Windels, Marx, Davies & Ives v. Solitron Devices, Inc., 510 So.2d 1177 (Fla. 4th DCA 1987).

LEVY, J., and SCHWARTZ, Senior Judge, concur.

SHEPHERD, J.,

dissenting.

I respectfully dissent.

This is an appeal by a Massachusetts law firm, Prince Lobel Glovsky & Tye, LLP., from a nonfinal order denying its motion to dismiss for lack of personal jurisdiction in a legal malpractice action brought against it and a former Of Counsel, Richard Heidlage, Esq., arising out of an action in the United States District Court for the Southern District of Florida, in which Heidlage appeared and represented Appellee Charles N. Zalis and related entities. Whether personal jurisdiction exists turns on whether Heidlage was an agent of the firm during the course of the alleged negligent representation. Zalis concedes the firm did not imbue Heidlage with actual authority to act on its behalf in the representation. The sole question presented in this appeal, then, is whether the Of Counsel relationship between Heidlage and Prince Lobel created an apparent agency relationship between the two of them. I would conclude that it did not and reverse the order of the trial court.

In the underlying federal case, Heidlage, a member of the Massachusetts Bar, appeared pro hac vice, to assist Florida counsel in the representation of Zalis, the Zalis Family Limited Partnership, and a wholly owned entity of the partnership, North American Underwriting Managers, Inc., in an action brought by Florida counsel arising out of a failed business relationship between Zalis and Allen Gersten, a resident of Needham, Massachusetts. During the course of the representation, Zalis was first Of Counsel to the appellant, Prince Lobel, and then Of Counsel to Ko-tin Crabtree & Strong, LLP, both Massachusetts-based law firms. Of these two law firms, Zalis seeks to proceed only against Prince Lobel in this case.

Heidlage’s appearance as co-counsel in the federal case was inspired by the fact that Zalis previously had hired him to represent the Zalis entities in a suit filed by Gersten in Massachusetts just days pri- or to the initiation of the federal action. Zalis testified he sought out Heidlage because the business acquaintance who recommended Heidlage described him as a “tenacious bulldog,” and based upon prior litigation experience, that was the type of lawyer Zalis needed. He also testified he “relied on the fact that [Heidlage] was with a big firm (Prince Lobel) which would have the necessary resources to handle the case.”

However, these facts alone are not sufficient to support a conclusion that Heidlage was the apparent agent of Prince Lobel. Apparent agency exists only if each of the following three elements is present: 1) a representation by the purported principal; 2) reliance on that representation by a third party; and 3) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995). “Apparent authority does not arise from the subjective understanding of the person dealing with the pm-ported agent, nor from appearances created by the purported agent himself; instead, apparent authority exists only where the principal creates the appearance of an agency relationship.” Izquierdo v. Hialeah Hosp. Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998)(internal quotations omitted)(citing Spence, Payne, Masington & Grossman, P.A. v. Philip M. Gerson, P.A., 483 So.2d 775, 777 (Fla. 3d DCA), rev. denied, 492 So.2d 1334 (Fla.1986)).

Here, there is no evidence that the purported principal, Prince Lobel, made any representation to Zalis, the purported third party. Zalis does not urge otherwise. Rather, Zalis urges that: because Heidlage had an office at Prince Lobel; he met with Heidlage there; he received correspondence from Heidlage on Prince Lo-bel stationery; all of the pleadings filed by Heidlage while he was with Prince Lobel indicated Heidlage was with Prince Lobel; when he called he went through a Prince Lobel switchboard; it appeared Heidlage’s secretary was a Prince Lobel secretary and that some Prince Lobel lawyers and paralegals worked on the Florida litigation from their offices in Boston, Heidlage was the apparent agent of Prince Lobel. I disagree.

Instead, the outcome of this case is controlled by the decision of the Florida Supreme Court in Mobil Oil. Although involving a different business, Mobil Oil is legally indistinguishable from our case. In Mobil Oil, the plaintiff, Jeremy Bransford, entered a Mobil Mini Mart gas station in Broward County, owned by Mobil Oil but leased to Alan Berman. Mobil Oil, 648 So.2d at 120. While on the premises, Ber-man was attacked and beaten by one of Berman’s employees, who allegedly had a history of assaulting customers. Id. Bransford sued Mobil Oil on the theory it effectively had established an apparent agency relationship with the leaseholder, Berman. Id.

As grounds, Bransford noted the facts that Mobil owned the property; Mobil products were sold in the station; Mobil trademarks and logos were used throughout the premises; and, the franchise agreement with Mobil required the use of Mobil symbols and the selling of Mobil products. Moreover, Mobil allegedly sent its representatives to the station to provide various routine franchise support services to the lessee. Id. The Florida Supreme Court held that Bransford’s allegations were insufficient to plead a case against Mobil:

In today’s world, it is well understood that the mere use of franchise logos and related advertisements does not necessarily indicate that the franchisor has actual or apparent control over any substantial aspect of the franchisee’s business or employment decisions. Nor does the provision of routine contractual support services refute this conclusion.
Franchisors may well enter into an agency relationship with a franchisee if, by contract or action or representation, the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee, beyond the mere fact of providing contractual franchise support activities.
The factual allegations in the complaint below clearly fail to allege even the minimum level of ‘representation’ necessary to create an apparent agency relationship. The plaintiff below alleged no genuine factual representation by Mobil, but merely assumed that such a representation is implicit in the prominent use of Mobil symbols and products throughout the station and in the provision of support activities.

Mobil Oil, 648 So.2d at 120-21 (emphasis added). This analysis applies in many contexts, including prominently medical malpractice cases involving hospitals. See, e.g., Izquierdo, 709 So.2d at 188 (holding that hospital was neither vicariously liable nor liable on the basis of apparent agency for alleged negligence of physician who provided care for patient in hospital pursuant to contract between health care provider and hospital where “there was no evidence that [hospital] partook in any activities to create the appearance of an agency relationship”).

Similarly here, it is undisputed that Prince Lobel partook in no activities to create the appearance of an agency relationship. Zalis simply “assumed” Heid-lage was an agent of the law firm. In fact, Heidlage was not the agent of the law firm. The law firm did not control or supervise him. As illustrated by his professional relationship with Zalis, Heidlage took in his own clients, made his own retention and compensation arrangements with those clients, and received all fees billed by him on his client matters. Pursuant to an agreement with the law firm, he rented an office from the firm and reimbursed the firm for expenses incurred by him at the firm, including the use of a halftime secretary. His name was separately shown as “Of. Counsel” on firm letterhead, and the signature block on all pleadings signed and filed by him expressly stated he was “Of Counsel” to the law firm. If he did work on a firm matter, he received eighty percent of the fee collected and conversely, if a firm professional assisted him on one of his matters, the firm received eighty percent of the fee.

It. cannot be gainsaid that Heidlage was affiliated with Prince Lobel. However, he was not a member, shareholder, or associate of the firm. Black’s Law Dictionary 352 (8th ed.2004)(defining Of Counsel to include “[a] lawyer who is affiliated with a law firm, though not as a member, partner, or associate”). When the existence of personal jurisdiction is contested by a defendant, it is the proponent of jurisdiction who must demonstrate its existence. Venetian Salami v. Parthenais, 554 So.2d 499, 501 (Fla.1989). I do not believe the Zalis entities met that burden here. Zal-is’s subjective belief, based upon his observations of the relationship between Heid-lage and Prince Lobel, is insufficient. See Izquierdo, 709 So.2d at 188.

Finally, I briefly must note the cases cited by the majority for affirmance are inapposite. In Ramos v. Preferred Medical Plan, Inc., 842 So.2d 1006 (Fla. 3d DCA 2003), we reversed a summary judgment granted to a health maintenance organization sued by a member on the ground that disputed issues of material fact remained on the issue of apparent agency. However, Ramos is inapposite for at least three reasons: (1) unlike our case, in Ramos there existed a direct contractual relationship between the claimant and the defendant health maintenance organization; (2) unlike our case, the defendant health maintenance organization selected the professional who performed the allegedly negligent service and supplied him to the Ramos’; and (3), most notably unlike our case, the defendant health maintenance organization in Ramos had made representations to the Ramos’ from which we concluded a reasonable jury could find an apparent agency relationship to exist.

Likewise, the remaining two cases cited in the majority — Waxoyl, A.G. v. Taylor Brion, Buker & Greene, 711 So.2d 1251 (Fla. 3d DCA 1998), and Windels, Marx, Davies and Ives v. Solitron, 510 So.2d 1177 (Fla. 4th DCA 1987) — are of no assistance to the majority decision, for two reasons: (1) in both of these cases, the question was whether or not the nonresident defendant had itself engaged in sufficient business activity in Florida for purposes, respectively, of §§ 48.161(1) and 48.193(l).(a) of the Florida Statutes; and (2) there was no apparent agency issue in either case. In both of these cases, long arm jurisdiction was found to exist on the basis that, each nonresident defendant had engaged in substantial business activity in this state. See. Waxoyl A.G., 711 So.2d at 1253; Windels, Marx, 510 So.2d at 1179. That is not the question in our case. See supra note 1.

For these reasons, I would reverse the trial court’s decision in this case and direct that Prince Lobel be dismissed from the proceeding below.

      . The firm does not have an office in Florida or engage in business here. Accordingly, ap-pellees seek personal jurisdiction over the law firm under section 48.193(l)(b) of our long arm statute, § 48.193, Fla. Stat., which allows our courts to hale in nonresidents who "[cjommit a tortious act within this state.”

      . This action was filed by Florida counsel in January 2001 and concluded in August 2002 via settlement, which Zalis now considers to have been inadequate. The record reflects Heidlage appeared in the case as pro hac vice in July 2002. Florida counsel changed at least three times during the twenty months the action pended in the Southern District of Florida. Various of the Florida counsel and their firms also have been named defendants in the instant action at one time or another during its course.

      . His arrangement with Zalis was a verbal arrangement.