text:
    James GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4265.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, James Gibson, challenges his conviction for trafficking in cocaine. Appellant raises six issues on appeal; however, we need only address his first assignment of error. After conducting a thorough review of the record, we find the trial court erred in denying appellant’s motion for judgment of acquittal and, accordingly, REVERSE with instructions to discharge appellant with respect to this offense.

The record shows that on March 11, 2004, a confidential informant telephoned someone, allegedly appellant, to arrange the purchase of cocaine. Law enforcement officers gave the confidential informant a recording device and $2,500 with which to make the purchase. The confidential informant arrived at the location of the supposed sale and remained in his vehicle. Thereafter, appellant exited a store and walked across a public parking lot towards the informant’s vehicle. Appellant entered the vehicle and sat in the passenger’s seat.

The prosecution played for the jury the recorded, but extremely brief, conversation that took place between the informant and appellant while in the vehicle. The recording represented the only verbal evidence regarding the alleged sale at the scene of the arrest. The conversation has one speaker mentioning “nine ounces” and the other speaker making reference to “nine dollars.” There were no other intelligible comments on the recording. Immediately after these comments, law enforcement officers approached the vehicle and arrested appellant, ultimately charging him with trafficking in cocaine. Neither appellant nor the confidential informant testified at trial.

At the time of the arrest, a law enforcement officer recovered the $2,500 from the confidential informant and not from appellant. Further, law enforcement also discovered a baggie containing 28 grams of cocaine on the ground outside of the vehicle in the public parking lot. The record was completely devoid of any evidence of a sale of cocaine between appellant and the confidential informant. No fingerprints were found on the baggie of cocaine nor was there any evidence in the record as to how far the cocaine was from the vehicle at the time of its discovery. Moreover, no evidence in the record showed that appellant ever possessed the cocaine.

At the conclusion of the State’s case in chief, defense counsel moved for judgment of acquittal, on the grounds that the State did not present any evidence establishing appellant trafficked in cocaine. Notwithstanding the trial court’s comment that the State’s case was “weak,” it denied appellant’s motion. The defense then rested without calling any witnesses and the jury returned a guilty verdict.

A trial court’s motion for judgment of acquittal is reviewed de novo. See, e.g., Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Wesson v. State, 899 So.2d 382, 383 (Fla. 1st DCA 2005); Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001). This court must consider the evidence and all reasonable inferences in the light most favorable to the State when reviewing the trial court’s decision. See, e.g., Pagan, 830 So.2d at 803; Wesson, 899 So.2d at 383; Jones, 790 So.2d at 1197. “In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.’ ” Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)). In a case where evidence is purely circumstantial, the State must not only establish each element of the offense beyond a reasonable doubt, “but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Pagan, 830 So.2d at 803 (citing Orme v. State, 677 So.2d 258 (Fla.1996)). In a case of circumstantial evidence, “[t]he state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” State v. Law, 559 So.2d 187, 189 (Fla.1989) (footnote omitted; quoting State v. Allen, 335 So.2d 823, 826 (Fla.1976)). “[I]f the state does not offer evidence which is inconsistent with the defendant’s hypothesis, ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’” Law, 559 So.2d at 189 (citing Lynch v. State, 293 So.2d at 45 (Fla.1974)).

In Varas v. State, the Third District Court of Appeal addressed the necessary showing to sustain a conviction of trafficking in cocaine. 815 So.2d 637 (Fla. 3d DCA 2001). It noted:

In order to be convicted of the offense of trafficking in cocaine, four elements must be established beyond a reasonable doubt: a) that the defendant knowingly purchased or possessed a certain substance, b) the substance was cocaine, c) the quantity was 28 grams or more, and d) the defendant knew the substance was cocaine. Fla. Stat. § 893.135(1X1997). The State must establish its case either by direct or circumstantial evidence.

Id. (citing Dupree v. Florida, 705 So.2d 90 (Fla. 4th DCA 1998) (emphasis added)). Here, the evidence presented by the State consisted of law enforcement testimony concerning the alleged controlled purchase between appellant and the confidential informant in a public parking lot, the audio tape of the conversation between the informant and appellant, and the baggie of cocaine found on the ground outside the informant’s vehicle.

The record in this case is more notable for what it does not contain rather than for what it does contain. No evidence before the jury indicated how the cocaine came to be on the grounds of the public parking lot. Nothing indicates where the cocaine was recovered in relation to appellant. No one testified that appellant possessed the cocaine. No illegal drugs were found in appellant’s possession. No evidence indicated that appellant ever exercised any dominion or control over the cocaine or received any money for the cocaine. Indeed, the $2,500 recovered at the scene was reclaimed from the confidential informant. Additionally, appellant made no admissions related to the cocaine, and the 28 grams of cocaine recovered in the public parking lot had nothing to do with the number “9” that was heard on the audio tape.

Appellant’s defense throughout the trial was that the baggie of cocaine did not come from him. The State did not present any evidence inconsistent with appellant’s theory. The trial court should have granted the motion for judgment of acquittal. See Law, 559 So.2d at 189. See also, e.g., Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001) (reversing denial of judgment of acquittal for possession of cocaine where evidence was wholly circumstantial and the State could not present sufficient evidence to rebut the inference that the defendant did not have actual or constructive possession of cocaine); Wallace v. State, 553 So.2d 777, 777 (Fla. 4th DCA 1989) (reversing denial of judgment of acquittal for conviction for trafficking in cocaine holding “mere proximity” to a place where drugs are found is insufficient to prove offense of trafficking); Morejon v. State, 633 So.2d 1094, 1096 (Fla. 3d DCA 1994) (reversing denial of judgment of acquittal on charges for sale or delivery of marijuana, possession with intent to distribute, and conspiracy on the grounds that the State failed to present competent evidence which was inconsistent with Morejan’s theory); Agee v. State, 522 So.2d 1044, 1046 (Fla. 2d DCA 1988) (reversing denial of judgment of acquittal on possession of heroin charge where defendant was found twelve inches away from the matchbox containing the heroin, behind a tree in a public place, there were other people on the premises and there was no evidence defendant touched the matchbox containing the heroin).

Based on the aforementioned, we find the evidence legally insufficient to convict the appellant. We, therefore, reverse appellant’s conviction and sentence with instructions to the trial court to discharge him with respect to this offense.

REVERSED.

BENTON and LEWIS, JJ., and SILVERMAN, SCOTT J„ Associate Judge, concur.

      . We wish to note that the State of Florida neither charged appellant with conspiracy to traffic in cocaine nor did it charge him with attempting to traffic in cocaine.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Zimley WEST, Appellee.
    No. 1D05-4507.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.

      Charlie Crist, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Johnny F. Farmer, Jacksonville, for Ap-pellee.
   PER CURIAM.

Affirmed. See Rinaldo v. State, 787 So.2d 208, 213 (Fla. 4th DCA 2001) (“A roadblock stop ... is a seizure imposing a greater intrusion upon a citizen than a consensual encounter.”).

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Robert DAVELLA, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-0403.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Robert Davella, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the trial court’s orders (1) denying his petition for a writ of mandamus challenging a forfeiture of gain time in his prison disciplinary proceeding and (2) imposing a lien on his inmate trust account to cover court costs and fees. Because the trial court afforded petitioner due process of law and did not depart from the essential requirements of law when it denied his petition for a writ of mandamus, we deny that portion of his petition for a writ of certio-rari on the merits. However, because, as respondent correctly concedes, the action in the trial court was a collateral criminal action as that term is defined in Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), we grant the petition to the extent it seeks to have the order placing a lien on his inmate trust account vacated. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


text:
    Relyea Theartis RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4162.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    C. Richard Parker, Public Defender, and AuBroncee Martin, Assistant Public Defender, Gainesville, for Petitioner.

      Charlie Crist, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about November 23, 2005, in Alachua County Circuit Court case number 01-2005-CF-000773-A, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent petitioner on appeal.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Christopher C. DEWEES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4167.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Christopher C. Dewees, pro se, Petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Christopher C. Dewees seeks a belated appeal of an amended judgment and sentence entered on June 6, 2006, nunc pro tunc, August 19, 1999. It appears that in 1999, Dewees was simultaneously sentenced in three cases involving two counts each. In response to a motion to correct illegal sentence, the circuit court entered its amended judgment and sentence in June 2006, deleting a conviction on one count and resentencing Dewees on the remaining five counts. In support of his request for a belated appeal, Dewees alleges that he was not present at resentencing, and did not receive the amended judgment and sentence until after the time for initiating an appeal had expired.

In response to an order to show cause, the state asserts that Dewees is not entitled to a belated appeal because he received the relief he sought pursuant to his motion to correct illegal sentence, and thus was not entitled to an appeal. We conclude, however, that because the trial court resentenced Dewees on the five remaining counts, he was entitled to a direct appeal of the amended judgment and sentence. Cf. King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001). The state has not meaningfully disputed Dewees’ claim that he was precluded from taking an appeal as a consequence of the delay in his receipt of the amended judgment and sentence, and that circumstance is sufficient to warrant the granting of a belated appeal. Accordingly, the petition seeking a belated appeal of the amended judgment and sentence entered June 6, 2006, in Okaloosa County Circuit Court case numbers 95-CF-212, 95-CF-276, and 99-CF-234, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Mary Elizabeth Bonom POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4391.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of September 26, 2006, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Oliver ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0105.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Oliver Allen, pro se, Appellant.
    Charlie Crist, Attorney General, Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Appellant stated a facially sufficient claim that the trial court’s oral pronouncement at sentencing does not comport with his written sentence, we reverse.

Following a plea of nolo contende-re, Appellant was convicted of possession and sale of cocaine, and the trial court imposed a sentence of 30 months’ incarceration. In the instant rule 3.850 motion, Appellant alleges that, at sentencing, the trial court orally pronounced that all but one year and one day of his sentence would be suspended and that the written sentence does not reflect this suspension. Written sentences must comport with the sentence that is orally pronounced, and when the two are inconsistent, the oral pronouncement controls. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003).

The trial court incorrectly ruled that Appellant’s plea form demonstrated that the plea agreement was for 30 months’ incarceration and that there would be no logical reason for the trial court to suspend a portion of the sentence. However, the plea agreement does not conclusively refute Appellant’s claim that the sentence that was orally pronounced differs from that which was written. When addressing a rule 3.850 motion, the trial court must either determine that the record refutes the movant’s claim and attach such support to the order denying the motion, or hold an evidentiary hearing on the merits. See Tompkins v. State, 872 So.2d 230, 238 (Fla.2003) (internal citations omitted); Fla. R.Crim. P. 3.850(d). While the trial court provided the plea form, the clerk’s worksheet, the judgment and sentence, and the clerk’s certificate in denying Appellant’s motion, only the transcript of the sentencing hearing will refute or support his claim. The transcript was not attached to the appealed order.

We, therefore, reverse the summary denial of Appellant’s motion and remand to the trial court for an evidentiary hearing or to refute Appellant’s claim with a transcript of the sentencing hearing.

REVERSED AND REMANDED.

KAHN, HAWKES and THOMAS, JJ„ concur.


text:
    Jabulani Chembo GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1284.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2006.
    James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001).

ORFINGER, LAWSON and EVANDER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Paul OREN, as guardian and next friend of Thad Oren, Incompetent, Petitioner, v. Grady C. JUDD, Jr., as Sheriff of Polk County, Florida; Lucy D. Hadi, as Secretary of the Department of Children and Families, an agency of the State of Florida; and the State of Florida, Respondents.
    No. 2D06-2318.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2006.

      James Marion Moorman, Public Defender, and Robert A. Young and Richard N. Blank, Assistant Public Defenders, Bar-tow, for Petitioner.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondents Grady C. Judd, Jr., Sheriff of Polk County, and the State of Florida.
    Charles D. Peters, Orlando, for Respondent Lucy Hadi.
   NORTHCUTT, Judge.

The circuit court found Thad Oren incompetent to proceed in a criminal case and ordered him involuntarily committed to the custody of the Department of Children and Families. Through his guardian, Paul Oren, Oren challenged the commitment by petitioning this court for a writ of habeas corpus. Oren’s petition raised two grounds for relief, the second of which is mooted by our resolution of the first. Oren contended that the circuit court could not involuntarily commit him because there is not a substantial probability that the mental illness causing his incompetence will respond to treatment sufficient to restore his competency to proceed in the reasonably foreseeable future, as is required by applicable law. By order, we treated the petition as a petition for writ of certiorari, granted the petition, and quashed the order insofar as it involuntarily committed Oren. We directed the circuit court to release Oren unless the State first instituted civil commitment proceedings. This opinion follows.

Oren is a severely brain injured thirty-six-year-old man who has been charged with two felonies that he allegedly committed at the adult congregate living facility in which he resided. The circuit court appointed two experts to assess Oren’s competency to proceed to trial. At the competency hearing, both doctors testified that Oren was incompetent to proceed to trial. Dr. William G. Kremper, a clinical psychologist, testified that it was unlikely that Oren would ever become competent because he had a severe brain injury and there could be no improvement in Oren’s cognitive functioning. In fact, he testified, Oren’s condition would probably worsen. Dr. Henry Dee, a neuropsychologist, testified that Oren “isn’t competent to proceed and it is my opinion that he will never be competent to proceed.” The court found that the testimony at the hearing indicated that “[t]he possibility that the defendant could be restored to competency was unlikely and remote.” Nevertheless, the court’s commitment order stated that Oren met the criteria for involuntary commitment for treatment to restore competency as set forth in section 916.13, Florida Statutes (2005), and Florida Rule of Criminal Procedure 3.212(c)(3).

Section 916.13(1) states:

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed, pursuant to the applicable Florida Rules of Criminal Procedure, may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a)The defendant is mentally ill and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; and
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.

(Emphasis added.)

In the present case, the circuit court did not find that there was a substantial probability that Oren’s mental deficiencies would respond to treatment and that he would regain competency to proceed in the near future. Indeed, there was no evidence — let alone clear and convincing evidence — presented at the competency hearing establishing a probability that Oren would regain competency. To the contrary, it was established that Oren would never regain competency. Clearly, then, Oren’s involuntary commitment was not authorized by section 916.13(1).

In Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004), Mosher was found incompetent to stand trial and was involuntarily committed to the Florida State Hospital for treatment. The second six-month report issued by the hospital stated that her prognosis for restoration of competency in the foreseeable future was extremely unlikely. Id. at 1231. Even so, the circuit court issued an order continuing the involuntary commitment. Mosher filed a motion for release from involuntary commitment and a motion to dismiss the charges, both of which the circuit court denied after a hearing. Mosher sought review of the circuit court’s rulings via a petition for writ of certiorari. The First District denied the portion of the petition challenging the denial of the motion to dismiss. But the court granted the petition in part and quashed the order continuing Mosher’s involuntary commitment. See id. at 1231-32. The court noted that at the hearing on Mosher’s motion it was determined that there was no substantial probability that she would regain competency to proceed in the reasonably foreseeable future. Therefore, she no longer met the criteria for involuntary commitment under section 916.13(l)(c). For that reason, the court held, the State must institute civil commitment proceedings or Mosher must be released. The facts in the present case compel the same result.

Petition granted.

WHATLEY and SALCINES, JJ., Concur.

      . See Patton v. State, 712 So.2d 1206 (Fla. 1st DCA 1998) (concluding that a petition for writ of certiorari is an appropriate vehicle to review an order of involuntary commitment in a criminal proceeding where there was no issue raised that required an evidentiary hearing); see also Dep't of Children & Families v. Clem, 903 So.2d 1011 (Fla. 5th DCA 2005); M.H. v. State, 901 So.2d 197 (Fla. 4th DCA 2005); Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004).

      . The experts’ testimony at the hearing corresponded with the opinions proffered in their written reports, which were also considered by the circuit court.


author: ALTENBERND, Judge.

text:
    Brandan Keith GATLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1646.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2006.
   ALTENBERND, Judge.

Brandan Keith Gatlin appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised twenty-three enumerated grounds. The motion challenged a judgment for “aggravated battery by a jail detainee,” § 784.082, Fla. Stat. (2001), and the resulting sentence of thirty years’ incarceration as a prison releasee reoffender. The trial court initially responded to Mr. Gatlin’s motion by issuing an order to show cause, stating: “The Court finds these claims raise facially sufficient bases for relief that are not conclusively refuted by the record.” The State responded to the order to show cause with a lengthy memorandum that referred and cited to material contained within hundreds of pages of testimony and other filings in the trial court. The trial court then entered an order agreeing with the State’s memorandum and denying relief on all grounds “because they are either refuted by the Record or are legally insufficient.” The trial court did not attach to its order any of the documents from the files and records that it recites that it reviewed. See Fla. R.Crim. P. 3.850(d) (holding that a copy of those portions of the files and records that conclusively show the movant is not entitled to relief shall be attached to the order).

On appeal, this court issued an order giving the circuit court clerk the opportunity to supplement the record with the referenced attachments. The circuit court clerk supplemented our record with photocopies of legal research that must have been performed by someone in the trial court, but with nothing from the actual court files and records. The clerk indicated that there was nothing else in the court file.

We are inclined to believe that many of the twenty-three grounds in Mr. Gatlin’s motion are facially insufficient and that the trial court erred in initially finding them to be sufficient. Usually we would review the motion de novo and sort out the grounds that require further attention on remand. In this case, however, since the trial court initially informed Mr. Gatlin that all of his grounds were facially sufficient and then entered an order disposing of each ground on the alternative theories that each ground was either facially insufficient or refuted by records that cannot be produced for this court, we remand this motion to provide the circuit court an opportunity to actually rule upon the motion.

Accordingly, we reverse the trial court’s order and remand for further proceedings. If the trial court again denies Mr. Gatlin’s motion, it must attach those portions of the record that conclusively refute his claims. See Hartley v. State, 933 So.2d 685 (Fla. 2d DCA 2006).

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.

      . It is noteworthy that an order denying a ground in such a motion based on record attachments is a disposition on the merits, whereas a denial or dismissal based on the insufficiency of the pleading is not. See McCrae v. State, 437 So.2d 1388 (Fla.1983); Wallace v. State, 463 So.2d 467 (Fla. 2d DCA 1985). Thus, Mr. Gatlin and this court have no guidance from the trial court as to which grounds have actually been resolved on the merits.


author: VILLANTI, Judge.

text:
    Robert A. McGOLDRICK, Appellant/Cross-Appellee, v. E. Diane McGOLDRICK, Appellee/Cross-Appellant.
    No. 2D05-5231.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2006.

      Lorena L. Kiely, Tampa, for Appellant/Cross-Appellee.
    Virginia R. Vetter, Tampa, for Appel-lee/Cross-Appellant.
   VILLANTI, Judge.

In this appeal, Robert A. McGoldrick (the Husband) raises three grounds — any one of which he claims requires reversal of the Final Judgment of Dissolution of Marriage: (1) the judgment is inconsistent with the evidence, (2) the equitable distribution award is improvident and unsupported by requisite findings, and (3) the permanent alimony award is excessive. We reverse for a new trial on the first ground, which moots the necessity to address the remaining two grounds, as well as those grounds raised in the cross-appeal by E. Diane McGoldrick (the Wife).

We decline to address the factual history in any great detail in this opinion except to point out that eight months after the final hearing, the trial court issued a Final Judgment of Dissolution of Marriage, which both parties agree contains inconsistent, confusing, and contradictory provisions, including findings unsupported by the evidence. The main disagreement on appeal is each party’s suggested solution' — ■ the Husband contends a new trial is the only practical solution, while the Wife contends this court should remand the matter back to the trial court to revisit selected issues.

In determining whether a delayed ruling warrants reversal and retrial, the critical determinations are: (1) the existence of conflict between the judge’s statements or findings at trial and the ultimate judgment entered and (2) the presence of unsupported factual findings in the final judgment. See Locke v. Locke, 882 So.2d 971, 972 (Fla. 2d DCA 2002) (“In addition to creating anxiety and expense, a delay in the entry of an order can cause inaccuracies to creep into the final judgment, warranting a new hearing.”); Caswell v. Caswell, 674 So.2d 861 (Fla. 2d DCA 1996) (finding that sixteen-month delay required a new trial where judgment materially differed from oral pronouncement); Donn v. Donn, 733 So.2d 581 (Fla. 4th DCA 1999) (reversing based upon inconsistencies between judgment and evidence presented at trial, together with a ten-month delay found to be excessive); Walker v. Walker, 719 So.2d 977 (Fla. 5th DCA 1998) (holding that more than a nine-month delay warranted new trial where the delay created improper inconsistencies in judgment and trial court omitted parties’ stipulations); McKenzie v. McKenzie, 672 So.2d 48 (Fla. 1st DCA 1996) (holding that twelve-month delay required new trial where inconsistencies in judgment indicated the trial court may not have recalled the evidence); Tunnage v. Bostic, 641 So.2d 499 (Fla. 4th DCA 1994) (finding that seven-month delay required new trial where judgment was confusing and contradictory). There is no bright-line rule setting forth exactly when a delayed ruling becomes excessive and thereby necessitates a new trial. See McCartney v. McCartney, 725 So.2d 1201 (Fla. 2d DCA 1999). Florida Rule of Judicial Administration 2.050(f) provides that “[ejvery judge has a duty to rule ... within a reasonable time” and to “inform the chief judge ... of each case that has been held under advisement for more than 60 days.” As a practical matter, such self-policing judicial policy is difficult for litigants to enforce, and there is nothing in this record regarding trial court adherence. Regardless, the rule does not set forth a remedy for any nonadherence that would be of assistance to the McGoldrieks. Under the facts of this case, reversal for a new trial is required by controlling case law.

We are also concerned that if we do not remand for a new trial, the passage of time between the trial and this opinion would likely have produced changed circumstances, causing one or both of the parties to seek modification of whatever partial result we might have affirmed. Additionally, intervening case law may require a different result than the law in effect when the case was tried. For example, the Florida Supreme Court issued its opinion in Zold v. Zold, 911 So.2d 1222 (Fla.2005), which now has a direct impact on how the trial court in this case should evaluate a portion of the evidence on remand.

We have considered the Wife’s proposed resolution and find it too cumbersome. The errors in this judgment are so numerous, and the prospect of interrelation of relief is so great that the Husband’s assertion that a reversal for a new trial on all issues is the only practical solution. Accordingly, we reverse this case in all regards except for the dissolution of marriage, and we remand for a new trial before a successor judge.

Dissolution of marriage affirmed, reversed in all other regards, and remanded for a new trial before a successor judge.

WHATLEY and DAVIS, JJ., Concur.

      . The parties extensively litigated how their voluminous and varied assets should be treated, valued, and divided.


text:
    Lazaro MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.

      Lazaro Martinez, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Lazaro Martinez (Martinez) appeals an order of the Broward County circuit court, summarily denying his motion for postcon-viction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand.

When Martinez was sentenced following his violation of probation in Broward case no. 02-20610 to three years imprisonment concurrent with his sentence in Miami-Dade case no. 98-18207, the trial court credited him with only forty-seven days, the time he was incarcerated in the Bro-ward County jail prior to sentencing. He filed a “petition for clarification of sentence,” seeking additional credit for the time he was incarcerated in Miami-Dade County before being transported to Bro-ward County on the violation of probation charges. The motion was based on his claim that he was actually arrested on the Broward warrant issued in connection with this case prior to being incarcerated in the Miami-Dade County jail on other charges. He attached to his motion a copy of the Broward fugitive arrest affidavit. The motion was denied based on the state’s response that Martinez was not arrested in Miami-Dade on the Broward warrant, but merely detained. The state attached a copy of the teletype request from the Bro-ward County authorities to the Miami-Dade County authorities, asking them to hold Martinez in connection with the instant case.

This court affirmed the denial without prejudice to Martinez filing a rule 3.850 motion for postconviction relief, explaining as follows:

It is apparent that this issue cannot be resolved in a rule 3.800(a) proceeding, because the issue requires consideration of matters outside the record before the court in Broward County, including the teletypes between the Broward Sheriffs Office and the Miami-Dade Police, as well as the arrest affidavit signed in Miami-Dade.
We therefore affirm the order denying relief under rule 3.800(a), but we do so without prejudice to the appellant filing a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 to resolve the factual issues regarding whether the appellant was actually arrested on the Broward warrant while in the Miami-Dade jail.

Martinez v. State, 932 So.2d 337, 338 (Fla. 4th DCA 2006).

Thereafter, Martinez filed the instant timely sworn pro se motion for postconviction relief, pursuant to rule 3.850, Florida Rules of Criminal Procedure, in which he sought the same additional jail time credit. He alleged that he was arrested on August 7, 2004, for three outstanding warrants: one in the instant Broward County case, one in a Collier County case, and one in the Miami-Dade County case. He attached copies of the fugitive warrants from Collier and Broward Counties. The complaint/arrest warrant executed by the Miami-Dade County police officer indicated he was arrested at a Miami address at 7:31 p.m.; the same date and time are also shown on the two fugitive arrest warrants. He asserted that the Broward teletype, requesting that a “hold” be placed on him for the Broward case, was irrelevant; it was sent at 11:51 p.m. on the same date, by which time he already had been arrested.

Martinez cited cases which hold that a defendant is entitled to credit from the time of arrest in another county. E.g., Travis v. State, 724 So.2d 119 (Fla. 1st DCA 1998) (holding that when a warrant is transmitted to the other county and that county also incarcerates the defendant on unrelated charges, the defendant is deemed to be in custody on both warrants). The supreme court in Gathers v. State, 838 So.2d 504, 505 (Fla.2003), distinguished the issuance of a detainer from the transmission of an arrest warrant, disapproving of cases that “erroneously equated the transmission of the warrant, as in Travis, with the issuance of a detainer. The filing of a detainer or a hold does not have the same effect as an arrest.” Id. at 508.

Without a hearing, the trial court summarily denied the motion based on the state’s response, which again maintained Martinez was not entitled to time served from August 7, 2004, because the teletype records reflected that a hold was placed on him pending the resolution of the Miami-Dade County charges. It continued to maintain that the record reflected there was no arrest by Miami-Dade County authorities on the Broward warrant, and that the Broward County arrest affidavit did not reflect an arrest in Miami-Dade on that warrant.

The attachment of the teletype to the state’s response did not conclusively refute Martinez’s sworn allegation that he actually was arrested in Miami-Dade County on the date he alleged in his motion, several months prior to being transported to Bro-ward County. If he actually was arrested in Miami-Dade County on the Broward warrant, as the warrant appears to reflect, he could be entitled to credit under either of two circumstances: if there was a period of time when he was incarcerated in Miami-Dade solely on the Broward charges; or if the Miami-Dade charges resulted in a sentence, and that sentence and the Broward sentence were to run concurrent with each other. See, e.g., Johnson v. State, 935 So.2d 89 (Fla. 5th DCA 2006); Smith v. State, 932 So.2d 594 (Fla. 5th DCA 2006).

Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Nedor HYACINTHE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3202.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Nedor Hyacinthe, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Nedor Hyacinthe appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. The trial court ruled that Hyacinthe’s motion was successive and an abuse of procedure. Fla. R.Crim. P. 3.850(f). The court noted that Hya-cinthe had filed two prior motions, neither one of which was considered on the merits. Hyacinthe’s first motion was stricken because the court lacked jurisdiction while a direct appeal was pending, and the second motion was found to be legally insufficient where it failed to allege facts to support the claims of ineffective assistance of counsel. See Fla. R.Crim. P. 3.850(c)(6) (requiring movant to state the facts supporting the motion). The trial court did not reach the merits of this second motion because it found that the motion merely stated conclusions of law without any factual explanation.

Rule 3.850(f) provides:

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

The instant motion alleged new grounds for ineffective assistance of counsel. The state argues that the trial court properly determined that Hyacinthe abused the post-conviction process by raising new claims, even though none of Hyacinthe’s prior motions were determined on the merits. We disagree.

The abuse of process doctrine does not apply where the trial court has not previously ruled on the merits of a post-conviction claim in the case and the movant seeks to raise new claims in a different motion. See Christopher v. State, 489 So.2d 22, 24 (Fla.1986) (discussing the abuse of process doctrine and the adoption of rule 3.850(f)). As noted by Hyacinthe in his response to this court, a 3.850 movant has the right to amend or supplement a motion at any time within the two-year time limit as long as the trial court has not yet ruled on the merits of the motion. Gaskin v. State, 737 So.2d 509 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004); Harris v. State, 826 So.2d 340 (Fla. 2d DCA 2002). Hyacinthe’s motion was not successive because the prior motions were not determined on the merits. See also Mancebo v. State, 931 So.2d 928 (Fla. 3d DCA 2006).

We reverse the summary denial of the motion for post-conviction relief and remand for the trial court to consider the motion on its merits.

STONE, POLEN and HAZOURI, JJ., concur.


text:
    Brad W. MOSS d/b/a Alloy Wheel Repair Specialist of Palm Beach, Appellant, v. WHEEL REPAIR SOLUTIONS INTERNATIONAL, INC., Appellee.
    No. 4D06-1542.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Brad W. Moss, Delray Beach, pro se.
    Kathleen E. Mones of Seyfarth Shaw, LLP, Atlanta, GA, for appellee.
   PER CURIAM.

Affirmed. See SAI Ins. Agency, Inc. v. Applied Sys., Inc., 858 So.2d 401 (Fla. 1st DCA 2003).

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    NORTH BROWARD HOSPITAL DISTRICT, Petitioner, v. Haylee Ann KROLL, Cynthia J. Hutchinson, and Jacob M. Kroll, III, Respondents.
    No. 4D05-4310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.

      Vanessa A. Reynolds and Janine Ka-lagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for petitioner.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Scott M. Newmark of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for respondents.
    Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, and Michael G. Tanner and Cynthia L. Hain of Holland & Knight LLP, Jacksonville, for Amicus Curiae Florida Hospital Association, Inc.
   PER CURIAM.

Petitioner seeks certiorari review of a trial court order requiring the production of incident reports and peer review records in a medical malpractice suit pending since 1996. Petitioner sought these records after the voters adopted Amendment 7 on November 2, 2004. See Art. X, § 25, Fla. Const. (2004) (“In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”). The Legislature enacted legislation construing Amendment 7 not to apply to “records created, incidents occurring, or actions pending before November 2, 2004.” See Chap. 2005-265, § 1, Laws of Fla. (effective June 20, 2005); see also § 381.028(5), Fla. Stat. (2006). In ordering the production of these medical records, the trial court held that Amendment 7 was self-executing and extended to records created before its adoption. The trial court therefore held the statute unconstitutional.

We agree with the trial court’s conclusions and deny the petition. In doing so, we adopt the First District’s reasoning and rulings in Notami Hospital of Florida Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006). We note that the Fifth District has also addressed these issues in Florida Hospital Waterman Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006). The Fifth District held the statute unconstitutional and the constitutional provision self-executing, but did not conclude that it could be retroactively applied. We agree with the retroactivity analysis contained in No-tami. We therefore certify conflict with Blister.

Petition denied.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Vincent ANTONELLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3090.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 2006.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Morales v. State, 557 So.2d 893 (Fla. 4th DCA 1990); State v. Lamb, 484 So.2d 1368 (Fla. 2d DCA 1986).

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    H.B., Mother of K.M., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-2474.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2006.
    Carl S. New, Ocala, for Appellant.
    Ralph J. McMurphy, Wildwood, for Ap-pellee, Department of Children and Families.
    Wendie Michelle Cooper, Orlando, for Appellee, Guardian ad Litem Program.
   PER CURIAM.

H.B., the appellant, seeks review of an order terminating her parental rights with respect to K.M., her infant child. The only issue before us is whether the trial court abused its discretion in ordering termination. As the order is supported by clear and convincing evidence, as well as a factual finding that termination is in the manifest best interest of the child, we affirm. See Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993), review denied, 634 So.2d 625 (Fla.1994).

AFFIRMED.

SAWAYA, PALMER, and MONACO, JJ., concur.


author: THOMPSON, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Jennifer BREWER, Respondent.
    No. 5D06-739.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Paul L. Nettleton of Carlton Fields, P.A., Miami, for Petitioner.
    Michael S. Rywant and Kerry C. McGuinn, Jr. of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, and Don McKeever, Winter Park, for Respondent.
   THOMPSON, J.

State Farm Mutual Automobile Insurance Company (“State Farm”) seeks a writ of certiorari or prohibition quashing the trial court’s order that denied State Farm’s motion for summary judgment and alternative motion to dismiss Jennifer Brewer’s statutory bad faith claim. State Farm contends that the order is a departure from the essential requirements of the law for which it has no adequate remedy by plenary appeal. We agree that the court departed from the essential requirements of the law. However, because State Farm has failed to show it will suffer irreparable harm that cannot be adequately remedied on appeal, we deny the petition.

Brewer was involved in an automobile accident with an uninsured driver in March 1992. She was insured under a State Farm automobile policy that provided uninsured motorist (“UM”) and other coverages. Brewer was not seriously injured; she saw her family doctor to treat minor discomfort four times in the following two weeks and sought no further treatment. State Farm paid all medical expenses — $447—in 1992 under Brewer’s no-fault coverage. She missed two days of work, and State Farm paid 60 percent of her lost wages in 1992 under her no-fault coverage. State Farm did not pay Brewer the remaining 40 percent of her lost wages in 1992.

In September 2002, an attorney advised Brewer that she might have a claim against State Farm for UM benefits arising out of her 1992 accident. She retained him, and on 26 November 2002 he filed a Civil Remedy Notice of Insurer Violation on her behalf with the Department of Insurance that alleged:

[Brewer] wrote State Farm asking for information, but State Farm failed to comply with the request. State Farm also failed to disclose the applicability of coverage and pay benefits. This is a business practice strongly encouraged by State Farm’s Performance Planning and Review (PP & R) Program which gave claim representatives monetary incentives to deny, reduce and ignore valid claims. Enclosed please find a copy of pertinent excerpts from the October 19, 2001, Opinion of the Utah Supreme Court in Curtis B. Campbell and Inez Preece Campbell v. State Farm Mutual Automobile Insurance Company which elaborates on the sinister PP & R scheme.

The notice did not state any amount of benefits or contractual damages allegedly due.

On 22 January 2003, within 60 days of the notice’s filing, State Farm paid Brewer $162.70 under her UM coverage, which reflected the 40 percent of lost wages not previously paid under Brewer’s no-fault coverage plus interest. State Farm formally responded to the civil remedy notice by letters dated 23 January 2003, stating it had cured the alleged violations in accordance with section 624.155, Florida Statutes, and that it requested that Brewer amend or supplement the civil remedy notice to specify any additional amount Brewer might believe she was due. Brewer did not respond, but filed suit in March 2003, alleging that State Farm committed fraud and conspiracy by failing to disclose and pay in 1992 UM benefits due under the insurance contract. She also asserted a statutory bad faith claim against State Farm under section 624.155, Florida Statutes (1991) (and section 626.9541, incorporated by reference therein).

Because the trial court granted summary judgment for State Farm on Brewer’s fraud and conspiracy claims, we discuss only the pending bad faith claim. State Farm moved for summary judgment and, alternatively, to dismiss the claim because: (1) it cured the alleged violations by payment within the 60-day cure period; (2) there was no determination of liability and extent of damages owed on the insurance contract, precluding the accrual of a bad faith claim; and (3) Brewer’s civil remedy notice was legally inadequate under the statute. Brewer responded that State Farm’s cure payment was inadequate because she was not compensated for some unstated additional amount of UM benefits to compensate her for pain and suffering, mental anguish, inconvenience, and other intangible damages. Nevertheless, Brewer also argued that State Farm’s cure payment, though inadequate, constituted the determination of liability and extent of damages giving rise to the bad faith claim. Finally, Brewer argued that her civil remedy notice complied with section 624.155 because it was accepted by the Department of Insurance for filing.

The trial court denied State Farm’s motion for summary judgment and alternative motion to dismiss, holding “that factual issues presenting jury questions exist as to whether State Farm cured the alleged violations and whether there has been a determination of liability and the extent of damages owed on the insurance contract.” State Farm timely sought certiorari review.

“Certiorari review of an interlocutory order is appropriate if the challenged order is a departure from the essential requirements of law that causes material injury, and if the order leaves the petitioner with no other adequate remedy to review the alleged erroneous order.” OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So.2d 113, 115 (Fla. 5th DCA 2005); National Life Ins. Co. v. Harrell, 891 So.2d 1078 (Fla. 1st DCA 2004); Hartford Ins. Co. v. Mainstream Constr. Group, Inc., 864 So.2d 1270, 1271 (Fla. 5th DCA 2004). We have held that “coverage and liability issues [involving a contract of insurance] must be determined before a bad faith cause can be prosecuted.” General Star Indem. Co. v. Anheuser-Busch Cos., 741 So.2d 1259 (Fla. 5th DCA 1999); OneBeacon, 898 So.2d at 115; Hartford, 864 So.2d at 1271.

State Farm is correct that the court erred by allowing Brewer’s statutory bad faith claim to proceed without a prior determination of liability and the extent of damages allegedly owed on the insurance contract. The trial court found that “factual issues ... exist as to ... whether there has been a determination of liability and the extent of damages owed on the insurance contract.” Thus, the order finds that the issues of State Farm’s liability under the contract and the extent of damages owed have yet to be determined. The trial court’s order is internally inconsistent, and erroneous because the order has the effect of allowing the bad faith suit to proceed despite the finding that the basis for such a suit has not been established. See Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla.1991) (“Absent a determination of the existence of liability ... and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle.”); Vest v. Travelers Ins. Co., 753 So.2d 1270 (Fla.2000) (“We continue to hold in accord with Blanchard that bringing a cause of action in court for violation of section 624.155(l)(b)l is premature until there is a determination of liability and extent of damages owed on the first party insurance contract.”). This constituted a departure from the essential requirements of the law.

However, we note that a predominant feature in the insurance cases, but absent here, is an order that prejudiced petitioner by forcing it to litigate a bad faith or unfair settlement practices claim in tandem with a coverage claim. See OneBeacon, 898 So.2d at 115; Hartford, 864 So.2d at 1271-73; General Star, 741 So.2d at 1261. State Farm cannot demonstrate the order causes irreparable injury and leaves it with no other adequate remedy to review the alleged erroneous order. See Nat’l Life Ins. Co. v. Harrell, 891 So.2d 1078, 1078-79 (Fla. 1st DCA 2004). Its concern appears to involve the time and expense of litigation. We find Progressive Consumers Insurance Co. v. Day, 869 So.2d 621, 622 (Fla. 1st DCA 2004), and the cases cited therein, to be instructive:

Petitioner ... ask[s] this Court to quash the ... order denying petitioner’s motion to dismiss the respondent's] ... bad faith claim.... Petitioner has failed to show that it will suffer irreparable harm that cannot be adequately remedied on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099-1100 (Fla.1987) (stating that while it is often appropriate to review orders granting discovery by certiorari, motions to dismiss and motions to strike claims should not be reviewed by certiorari); Florida Fish & Wildlife Comm’n v. Pringle, 770 So.2d 696, 697 (Fla. 1st DCA 2000) (stating that the time and expense of litigation that would be dismissed if certiorari were granted does not constitute irreparable injury); Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (denying certiorari review because the denial of a motion to dismiss a bad faith action can be adequately reviewed on plenary review); Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998, 1002 (Fla. 4th DCA 1987) (stating that taking certiorari review of a motion to dismiss a bad faith claim should not be treated differently than any other motion to dismiss because of the nature of the action).

Accordingly, we DENY the petition without prejudice to petitioner seeking a writ of certiorari in this court if the trial court compels discovery of privileged or protected documents. See Federated Nat’l Ins. Co. v. Copeland, 932 So.2d 310, 311 (Fla. 2d DCA 2006); Progressive Consumers, 869 So.2d at 622.

GRIFFIN and MONACO, JJ., concur.

      . We realize this fact clashes with Brewer's allegation in her motion for summary judgment that "[a]t no time did (State Farm) contact Ms. Brewer’s attorney about the amount of benefits that might be due under the policy to "cure” the violations alleged in the statutory notice.”

        . The trial court granted State Farm's and the other Defendants’ motion for summary judgment on Plaintiff's fraud and conspiracy claims based on the statute of limitations, leaving the bad faith claim the only claim pending in the case.

      . We note that Brewer’s statutory bad faith claim may never ripen. To obtain a determination regarding liability and the extent of damages owed on the insurance contract, Brewer would need to bring an action on the contract, which would likely be precluded by the statute of limitations, i.e., five years from the date of the accident. See Woodall v. Travelers Indem. Co., 699 So.2d 1361 (Fla.1997); State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla.1982); § 95.11(2)(b), Fla. Stat. (1991).


text:
    Jewell R. KELLY, Appellant, v. Mark C. MYERS, Appellee.
    No. 5D05-4393.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.

      R. Colt Kirkland of Blanchard, Merrian, Adel Kirkland, Ocala, for Appellant.
    Mark C. Myers, Mabelvale, Arkansas, in proper person.
   PER CURIAM.

Appellant challenges that portion of the final judgment of paternity that changed her child’s surname from Kelly to Myers. We conclude that this case is controlled by our decision in McKay v. Haikey, 860 So.2d 1046 (Fla. 5th DCA 2003), and accordingly reverse that portion of the judgment that effected the name change and remand this cause with directions that the child’s surname be restored to Kelly.

REVERSED and REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Stephen TERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3019.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Stephen Terry, Quincy, pro se.
    No Appearance for Respondent.
   PER CURIAM.

The appellant, Stephen A. Terry, seeks certiorari review of the trial court’s order denying his motion filed pursuant to rule 3.800(c), Florida Rules of Criminal Procedure, to mitigate his sentence. An order entered on a rule 3.800(c) motion to reduce or modify a sentence is not appealable, however, it is subject to review in an extraordinary case under this court’s certio-rari jurisdiction. See Byrd v. State, 920 So.2d 825 (Fla. 2d DCA 2006). As the appellant has failed to demonstrate that he is entitled to certiorari relief, the petition is denied.

DENIED.

PALMER, ORFINGER, and MONACO, JJ., concur.


text:
    Ronald J. HYDLE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3319.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Ronald J. Hydle, Wewahitchka, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

Ronald J. Hydle has filed a petition for a belated appeal of his criminal conviction. We deny the petition without prejudice to file a legally sufficient petition consistent with Florida Rule of Appellate Procedure 9.141(c). See also Vasquez v. State, 901 So.2d 425 (Fla. 5th DCA 2005).

PETITION DENIED.

PALMER, ORFINGER and TORPY, JJ., concur.


text:
    SKYNET TELESYSTEMS, LLC, A Florida, Etc., et al., Appellant, v. THERMO CREDIT, LLC, A Colorado, ETC., Appellee.
    No. 5D06-524.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Jonathan D. Smith, Spring Hill, for Appellant.
    Lynn Welter Sherman and J. Scott Slater of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Affinity Internet, Inc. v. Consol. Credit Counseling Servs., 920 So.2d 1286, 1289 (Fla. 4th DCA 2006) (“No evidentiary hearing was required because no factual issues were in dispute and the issue of whether a valid arbitration agreement existed was a matter of law.”); Eugene W. Kelsey & Son, Inc. v. Architectural Openings, Inc., 484 So.2d 610, 611 (Fla. 5th DCA 1986) (“Arbitration provisions from one contract cannot be extended to a separate contract between the same parties unless the parties expressly agree to do so.”).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    James M. McINTOSH, a/k/a James McIntosh, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3777.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
    Rehearing Denied Sept. 6, 2006.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

James McIntosh appeals a final order denying his motion for postconviction relief in which he raised seven grounds of ineffectiveness of counsel. We conclude that two of the grounds involve deficient performance by his trial counsel. Although the issue is close, we also conclude that Mr. McIntosh has established the degree of prejudice that warrants a new trial in this case. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Mr. McIntosh was charged with attempted first-degree murder for the stabbing of eighteen-year-old Kenneth Brooks. At trial, Mr. McIntosh alleged that he stabbed Mr. Brooks in the neck with a pocketknife in self-defense. Our record contains the transcript of the testimony presented at Mr. McIntosh’s trial.

Mr. Brooks was a friend of Sharon McCall, who apparently had a relationship with Mr. McIntosh’s brother, John Avery. About a week before this incident, Mr. Brooks lost $80 while visiting Ms. McCall at Mr. Avery’s apartment. When he realized that he had lost his money, Mr. Brooks immediately returned to look for it. The money could not be found, and Ms. McCall and Mr. Avery denied any knowledge of it. Mr. Brooks became angry and left, promising to return the following week for the money.

Mr. Brooks returned the following Saturday evening at approximately 10 or 11 p.m. Mr. Brooks, Ms. McCall, and Mr. McIntosh each testified to the events that followed, but each description varied considerably. Each agreed, however, that Mr. Avery answered the door first, refused to give Mr. Brooks any money, and slammed the door in Mr. Brooks’ face. After a short time, Mr. Brooks returned and knocked or kicked at the door again. This time, Mr. McIntosh answered the door.

Mr. McIntosh was about fifty-five years old on the day of the incident. At trial, he testified that he was at the house because he knew that Mr. Brooks had been threatening Mr. Avery and Ms. McCall. According to Mr. McIntosh, Ms. McCall had told him that Mr. Brooks carried a gun. Mr. McIntosh claimed that when he answered the door, he too told Mr. Brooks to leave and slammed the door in his face. This time Mr. Brooks immediately started beating on the door again. Mr. McIntosh claimed that he did not call the police because the house had no telephone.

Mr. McIntosh opened the door again and stepped out onto the front porch. Although Mr. Brooks testified that Mr. Avery and Ms. McCall also stepped outside and participated in the affray, Mr. Avery did not testify and Ms. McCall claimed that she and Mr. Avery remained inside and did not witness the altercation. According to Mr. Brooks, Mr. McIntosh pushed him backwards, whereupon Mr. Brooks grabbed Mr. McIntosh by the waist. The two were physically struggling when Mr. McIntosh stabbed Mr. Brooks.

According to Mr. McIntosh, Mr. Brooks attacked him, and at some point pushed away and reached behind his back. Mr. McIntosh thought that Mr. Brooks was reaching for a gun. Mr. McIntosh testified he then pulled out a small pocketknife and stabbed Mr. Brooks once in the neck. Mr. McIntosh, Ms. McCall, and Mr. Avery quicWy left the area, ignoring Mr. Brooks’ calls for help. Mr. McIntosh and Ms. McCall both testified that they heard Mr. Brooks state that he was only trying to reach for a beeper. Mr. Brooks admitted that he had a beeper on his person when the stabbing occurred.

Mr. Brooks’ stab wound was less than three-fourths of an inch across, but rendered him partially paralyzed. He identified Mr. McIntosh as the person who stabbed him. Mr. McIntosh was arrested a few days later. He initially denied any involvement in the events leading up to the stabbing. No knife was ever recovered.

Based upon this evidence, the jury corn victed Mr. McIntosh of the lesser-included offense of attempted second-degree murder. He was sentenced to life imprisonment. We affirmed Mr. McIntosh’s judgment and sentence on direct appeal. McIntosh v. State, 819 So.2d 767 (Fla. 2d DCA 2002).

Mr. McIntosh filed a timely motion for postconviction relief, alleging seven grounds of ineffective assistance of counsel. After an evidentiary hearing on six of the grounds, the circuit court denied the motion. We affirm the denial of grounds two through five and ground seven without further comment. We reverse, however, the denial of grounds one and six.

In ground one, Mr. McIntosh asserted that his trial counsel was ineffective for failing to object when, during recross-examination of Mr. McIntosh, the prosecutor pulled out his own personal knife to demonstrate his theory that Mr. McIntosh did not have time to pull the knife in self-defense and thus must have come prepared to fight. Although the knife Mr. McIntosh had used was described as an ordinary pocketknife, the prosecutor pulled out a “long, white butterfly knife” about eight to ten inches long. Defense counsel did not object, even ‘though no knife was in evidence and the demonstration knife was three times larger than an ordinary pocketknife. Indeed, at the post-conviction hearing, defense counsel did not even recall the prosecutor doing this, although the prosecutor admitted that he had done so.

The prosecutor’s knife, of course, was not introduced into evidence, and there is no indication that he ever apprised the trial court or defense counsel of his intent to use it. The knife that the prosecutor used was not one that a man might ordinarily carry on his person for utility purposes; it was the kind of knife that an aggressor would take to a fight, and quite possibly it was an illegal concealed weapon. Even if the prosecutor’s personal knife had been admitted into evidence, it would not have been a proper demonstrative exhibit. See, e.g., Chamberlain v. State, 881 So.2d 1087, 1102 (Fla.2004); Brown v. State, 550 So.2d 527 (Fla. 1st DCA 1989) (holding demonstrative exhibits may be used to aid in the jury’s understanding only if they are accurate and reasonable reproductions of the object involved). There was no evidence that the prosecutor’s knife was an accurate and reasonable reproduction of the one actually used by Mr. McIntosh. In fact, Mr. McIntosh’s testimony at the evidentiary hearing, which was unrefuted, was that the knife produced by the prosecutor was significantly different and significantly larger than the knife he used during the incident.

Defense counsel was given another chance to address the prosecutor’s actions when the jury returned from deliberations to ask: ‘What happened to the knife? And what are its dimensions?” Defense counsel did not request that the trial court clarify to the jury that the knife used by the prosecutor was not evidence and was not intended to replicate the knife Mr. McIntosh actually used. Rather, defense counsel permitted the trial court to instruct the jury as follows:

As I told you yesterday afternoon, you’ve heard all of the evidence you’re going to hear and seen all of the evidence you’re going to see. This is it. So you must base your deliberations on what you have seen and heard. So please return to the jury room and deliberate your verdict.

The State’s theory of this case was essentially that Mr. McIntosh had been called to the house to protect the occupants and that he came prepared to do battle with Mr. Brooks. Thus, the State argued that Mr. McIntosh did not have time to pull his pocketknife in the heat of the battle, to open it, and to strike Mr. Brooks during the time that he believed Mr. Brooks was reaching for a gun. Inu plicit in the State’s argument was the fact that Mr. McIntosh had brought the knife to fight and had it ready to wield when he answered the door.

The evidence in this case strongly supported the theory that Mr. Brooks provoked the fight. While the prosecutor is correct that it would have taken Mr. McIntosh some time to pull and open a common pocketknife, the description of events on the front porch was far from precise and would have allowed the jury to determine that Mr. McIntosh had ample time to pull out the knife when the men separated. Even‘if the jury decided that Mr. McIntosh drew the knife before he opened the door the second time in response to Mr. Brooks’ banging and kicking, we are not convinced that this fact would preclude a finding of self-defense.

In this context, the prosecutor’s decision to use a large knife in his demonstration was a critical error related to the heart of Mr. McIntosh’s sole defense, and one that went unchallenged by defense counsel. Given the jury’s later question regarding the type of knife used and the jury’s decision to convict Mr. McIntosh of a lesser-included offense, we conclude there is a reasonable probability that, but for counsel’s failure to object to this damaging demonstration, the result of the proceeding would have been different and our confidence in the outcome is undermined. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Concerning ground six, during the trial defense counsel called Ms. McCall as a witness. Her testimony was somewhat helpful to Mr. McIntosh because it tended to support his claim of self-defense. Ms. McCall testified that Mr. Brooks was “crazy” and that he had a reputation for carrying a gun with which he had threatened her on a prior occasion. Her testimony that she heard Mr. Brooks say that he was only reaching for a beeper supported Mr. McIntosh’s claim that Mr. Brooks reached behind his back during the altercation. However, Ms. McCall also testified that Mr. McIntosh threatened her with the knife and ordered her not to contact the police.

Mr. McIntosh testified on direct examination that he never threatened Ms. McCall and, that perhaps she “lied” about the threats because the State made her a deal to testify against him. The prosecutor, on cross-examination, used this response as a justification to ask: “Let me ask you this, sir: You don’t think anything Ms. McCall said is credible; you think she’s lying about everything, right?”

Although this question was completely improper and should have been objected to, it drew no objection from defense counsel. See, e.g., Knowles v. State, 632 So.2d 62 (Fla.1993) (prosecutor’s question asking appellant whether he thought two state’s witnesses were lying was improper); Mosley v. State, 569 So.2d 832 (Fla. 2d DCA 1990) (prosecutor’s questioning defendant whether previous witnesses had lied entitled defendant to a mistrial); Izquierdo v. State, 724 So.2d 124, 126 n. 2 (Fla. 3d DCA 1998) (prosecutorial misconduct found where prosecutor asked appellant if his defense witness was a liar).

Mr. McIntosh’s testimony that Ms. McCall had lied about the alleged threats did not open the door for the prosecutor to imply that Mr. McIntosh believed all of her testimony was a lie. Mr. McIntosh had not discredited Ms. McCall’s entire testimony prior to the prosecutor’s improper question. Although Ms. McCall did give some harmful testimony, she was still the only defense witness other than Mr. McIntosh and her testimony tended to support Mr. McIntosh’s self-defense theory.

This error was compounded when the prosecutor repeatedly restated in his closing arguments that Mr. McIntosh called his own witness a liar, again without objection. This singular error may not have been sufficient to establish the prejudice required by Strickland, to warrant a new trial. However, when this conduct by the prosecutor is added to his decision to use his own large knife during his recross-examination of Mr. McIntosh, we are convinced that Mr. McIntosh was deprived of the fair trial that the Strickland standards are designed to protect.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: SALCINES, Judge. WHATLEY, Judge,

text:
    Michael RHODEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2069.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.
    Rehearing Denied Sept. 6, 2006.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Michael Rhoden entered a plea of nolo contendere to the charges of resisting law enforcement officers without violence, possession of cocaine with intent to sell, and possession of drug paraphernalia. He reserved the right to appeal the denial of his dispositive motion to suppress. In the motion, Rhoden argued that the law enforcement officers lacked reasonable suspicion to conduct a “Terry Stop” and lacked probable cause to detain him. We reverse.

An evidentiary hearing on the motion to suppress was conducted. Testimony was presented that four “task force members” of the Highlands County Sheriffs Department in an unmarked Ford Explorer approached the intersection of Highlands Avenue and Lemon Street in Sebring at approximately 1 p.m. on October 29, 2003. While there had been no reports of any specific criminal activity at that intersection, the testimony of the task force members revealed that the area was known for drug activity and was a high crime area.

The task force members were in regular street clothes with no insignia on their clothing to identify them as law enforcement officers. The task force members did have badges which hung from chains around their necks; however, one task force member testified that the badges were hidden while they were inside the vehicle.

As the Ford Explorer approached the intersection, the task force members noticed a man, who was ultimately identified as Rhoden, walking “briskly” away from their direction while talking on a cellular telephone. Rhoden looked back at the Ford Explorer repeatedly as it approached the intersection and when it stopped at a stop sign. The driver of the Ford Explorer pulled to the curb and parked the vehicle. As two task force members cracked open their doors to exit the vehicle, Rho-den looked at the vehicle and began running. The task force members chased Rhoden on foot, shouted for him to stop, and identified themselves as law enforcement officers. Thereafter, the lights and siren on the Ford Explorer were activated and a chase ensued. Rhoden was eventually apprehended, and he struggled vfith the officers as they attempted to place handcuffs on him. After he was subdued, the task force members removed a Tylenol pill bottle from Rhoden’s hand which contained crack cocaine.

An investigatory stop must be based on more than a mere hunch. See Slydell v. State, 792 So.2d 667 (Fla. 4th DCA 2001). The driver of the Ford Explorer, Investigator Jamie Davidson testified that Rhoden was walking across the intersection and talking on a cell phone when he first observed him. He stated that Rhoden “[h]ad a great interest in my vehicle approaching the intersection.” Inv. Davidson testified that the fact that Rhoden was talking on a cell phone and that he had something in his hand was not suspicious, but his brisk walk with his other actions were suspicious. When questioned about these other actions, Inv. Davidson testified:

While he was speaking on the telephone walking briskly away from us, he was very concerned about our presence. My vehicle was, obviously, known as an unmarked police vehicle associated with Special Operations Division. And he was very concerned with where we were and if we are going to get out of it. Because he was constantly looking back while he was on the phone.

Investigator Ryan Magnuson, who recognized Rhoden from an earlier citizen encounter, .admitted that while Rhoden was observing the vehicle as he was walking away, it was possible that he did not recognize him from the earlier two or three minute encounter. Inv. Magnuson admitted that speaking on a cell phone was not suspicious, but he noted that Rhoden “continued to look back at us, making eye contact with the vehicle which is known in that area.” Inv. Magnuson admitted that he did not know if Rhoden had knowledge that the Ford Explorer was a law enforcement vehicle.

Deputy Robert Duncan testified, “Well, when he ran from us ... [.] We didn’t necessarily get out to even talk to him.” Dep. Duncan was asked, ‘Was the fact that he ran the only reason he incurred your suspicion?” The deputy responded, “In the beginning, yes, I would say so.” He then indicated that the task force members probably would have conducted a citizen’s encounter. However, Dep. Duncan stated that he would not have initiated the encounter because he did not know Rho-den. The deputy admitted that there was nothing suspicious about talking on a cell phone and he did not know if Rhoden had been walking briskly away from the area before their vehicle turned the corner and he was observed.

In his motion, Rhoden argued that the task force members’ actions in parking and jumping out of the Ford Explorer provoked nervousness on Rhoden’s part which caused him to flee, or in the alternative, the task force members took advantage of Rhoden’s nervousness to provoke his flight. Rhoden asserted that because the task force members provoked his flight, they lacked genuine reasonable suspicion to justify their pursuit of him.

In ruling on the motion, the trial court noted that Rhoden was located in a high crime area. “That the Defendant, Mr. Rhoden, fled. That the police officers got out, identified themselves as police officers. They had badges that they took out.” The lights and siren on the unmarked vehicle were activated and a chase ensued. The trial court concluded that the task force members had the right to take Rhoden into custody. The decision to deny the motion to suppress was based on the rationale in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness with regard to determinations of historical fact. A reviewing court must defer to the factual findings of the trial court that are supported by competent, substantial evidence. Bautista v. State, 902 So.2d 312, 313-14 (Fla. 2d DCA 2005). However, the decision of whether the application of the law to the historical facts has established an adequate basis for the trial court’s ruling is subject to de novo review. Fitzpatrick v. State, 900 So.2d 495, 513 (Fla.2005).

In conducting our de novo review, we conclude that while the trial court’s factual findings are supported by the evidence, its application of the law to the facts in the present case was erroneous because the task force members’ testimony demonstrated nothing more than a hunch that criminal activity might be afoot. They were unable to articulate a valid basis for their suspicion that Rhoden had committed, was committing, or was about to commit a crime. See § 901.151, Fla. Stat. (2003); Williams v. State, 910 So.2d 368, 370 (Fla. 5th DCA 2005).

The Wardlow decision, upon which the trial court relied, is totally distinguishable. In Wardlow, uniformed police officers in a caravan of four marked police vehicles arrived in an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers expected to find a crowd of people including customers and lookouts. Id. at 121, 120 S.Ct. 673. As the caravan passed, an officer noticed Wardlow standing beside a building holding an opaque bag. Wardlow looked in the direction of the officers and fled. Two officers chased Wardlow in their marked police vehicle and apprehended him. The officers conducted a protective patdown for weapons and discovered a firearm. The trial court denied Wardlow’s motion to suppress and held that the weapon had been recovered during a lawful stop and frisk. Id. at 122, 120 S.Ct. 673.

The Illinois appellate court reversed the trial court, and the Illinois Supreme Court upheld the reversal. The United States Supreme Court granted cer-tiorari and reversed the Illinois Supreme Court. It concluded that an individual’s presence in a high crime area standing alone was not enough to support a reasonable, particularized suspicion that a person was committing a crime to warrant a brief, investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It further concluded, however, that the fact that the stop occurred in a high crime area is among the relevant contextual considerations in a Terry analysis. Wardlow, 528 U.S. at 124, 120 S.Ct. 673. The Supreme Court then found that it was not merely Wardlow’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the marked police vehicle and the officers in their uniforms. “The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Id. at 125, 120 S.Ct. 673. The Supreme Court acknowledged that the conduct justifying a stop could be ambiguous and susceptible of an innocent explanation. It concluded that while the conduct by itself could be lawful, if it is ambiguous and could also be interpreted as criminal activity, for example when it appears individuals are casing a store for a planned robbery, the officers could detain the individual to resolve the ambiguity. Id. at 125, 120 S.Ct. 673.

In the present case, Rhoden was walking down the street at 1 p.m. in an area identified as a high crime area. The fact that Rhoden kept looking back at the unmarked vehicle following him was not an ambiguous act because it was not suggestive of criminal behavior. See Terry, 392 U.S. at 5-6, 88 S.Ct. 1868 (holding where conduct articulated as justification for the stop is ambiguous and susceptible of an innocent explanation, if it also suggests criminal activity, then detention to resolve the ambiguity does not violate the Fourth Amendment). The task force members had no expectation of finding criminal activity in that specific location, as in Ward-loiv, and there had been no reports of criminal activity to which they were responding.

At the time the task force members observed Rhoden, he was talking on a cell phone and was already walking at a brisk pace in the same direction in which their vehicle was traveling. Unlike the caravan of four marked police vehicles in Wardlow, in the present case there was only a single, unmarked law enforcement vehicle. Although the task force members testified that the vehicle was known in the area, they could not say that Rhoden knew it was a law enforcement vehicle. Further, unlike the uniformed officers in Wardloiv, the task force members were dressed in street clothes, and nothing on their persons identified them as law enforcement officers before they exited the vehicle and began to pursue Rhoden. As they exited the vehicle, after Rhoden already had taken flight, they activated the lights and siren and displayed their badges on the outside of their clothing.

At the hearing on the motion to suppress, the task force members all conceded that talking on a cell phone while briskly walking down a street was not sufficient to provide reasonable suspicion that the individual committed, was committing, or was about to commit a crime as is required to detain an individual for investigative purposes. One deputy testified that he could see that Rhoden had something in his hand as he was walking down the street talking on the cell phone but confessed that he had no idea what the object was. The only alleged suspicious activity identified was that Rhoden kept looking back at the unmarked vehicle with interest. The task force members indicated that Rhoden kept making “eye contact” with the vehicle but did not make eye contact with the occupants of the vehicle.

We hold that under the specific facts of the present case it is clear that Rhoden’s action of fleeing was not unprovoked flight at the sight of law enforcement. The State offered nothing but speculation to support its assertion that Rhoden knew the unmarked Ford Explorer was a law enforcement vehicle. We are loathe to expand the holding in Wardlow to include a situation such as that before us today.

Because the officers did not have the reasonable suspicion necessary to authorize an investigatory stop after Rhoden’s provoked flight, the initial detention was illegal and the resulting acquisition of the cocaine and Tylenol bottle (drug paraphernalia) was the fruit of an unconstitutional seizure. See, e.g., Jay v. State, 731 So.2d 774, 776-77 (Fla. 4th DCA 1999). Accordingly, we reverse the order denying Rho-den’s motion to suppress and remand for further proceedings.

Reversed and remanded.

KELLY, J., Concurs.

WHATLEY, J., Dissents with opinion.

WHATLEY, Judge,

Dissenting.

I respectfully dissent, because I believe this case is controlled by Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570. In Wardlow, the appellee was in an area known for heavy narcotics trafficking. When the officers drove into the area, the appellee looked in the direction of the officers and fled. The Supreme Court held that this conduct gave officers a reasonable suspicion that the appellee was engaged in criminal activity. Id. at 121, 120 5.Ct. 673.

In the present case, there was testimony that the area in question was a well-known drug area and a high crime area. Deputy Duncan testified that the unmarked police vehicle had been used at that intersection 100 times, maybe more. He testified that they conduct operations using that vehicle in the area several times a week. Further, Investigator Magnuson had spoken with Rhoden a week or two prior to the stop at issue, and Rhoden made complaints about Investigator Magnuson because he had stopped him.

On the day in question, there was testimony that as the vehicle turned the corner, Rhoden looked at the vehicle and began to quickly walk away from the vehi-ele. The law enforcement officers testified that Rhoden was constantly looking back and forth at their vehicle. When the vehicle stopped and Investigator Magnuson got out of the vehicle, Rhoden began to run. Deputy Duncan testified that Rho-den was looking directly at Magnuson when Magnuson opened the door. When he opened the door, Investigator Magnu-son yelled “stop, police,” and Rhoden continued to flee. The vehicle’s siren and lights were then turned on and Rhoden still did not stop.

The trial court correctly found that, as in Wardlow, Rhoden’s presence in a well-known drug area and high crime area and his unprovoked flight upon noticing the police constitute reasonable suspicion to justify the stop under Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. As the Supreme Court held in Wardlow, 528 U.S. at 124, 120 S.Ct. 673, “Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Further, while Rhoden’s actions in continuously looking back at the unmarked police vehicle were not suggestive of criminal behavior, such behavior is among the relevant contextual considerations in a Terry analysis. See id. (recognizing that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion”).

I would affirm the order denying Rho-den’s motion to suppress.

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

      . The task force members testified that the Ford Explorer was commonly used by task force members in the area to make citizen encounters. It was not an undercover vehicle. The officers testified that the vehicle was known in the community to be a law enforcement vehicle. There was no evidence presented to demonstrate that Rhoden was aware that the Ford Explorer was a law enforcement vehicle.

      . Deputy Robert Duncan testified, "[A]s they got out of the car they took that badge on the outside, which is what we always do.”

      .Testimony was presented that a member of the team, Investigator Ryan Magnuson, recognized the man from a prior citizen encounter. At that time Rhoden had been stopped due to mistaken identification. This encounter had lasted two or three minutes a few weeks earlier. Dep. Duncan testified that after Inv. Mag-nuson exited the vehicle he called out Rho-den's name and ordered him to stop. The deputy, who remained inside the vehicle, testified that he could not say how loudly Inv. Magnuson called out Rhoden’s name because the door to the vehicle was closed after Inv. Magnuson exited.

      . The deputies testified that "the instant that the door cracked [Rhoden] took off." Dep. Duncan was asked, "Now were you able to see whether or not Mr. Rhoden was looking at the car or away from the car when the door was open?” The deputy responded, "Yes sir, he was looking right at him.” Although the dissent indicates that the deputy testified that Rhoden was looking directly at Inv. Magnuson, the deputy's testimony in this regard is not clear and he did not clarify the "him” to whom he referred.

      . There was no testimony that Investigator Magnuson was in the vehicle at issue when he previously stopped Rhoden.