text:
    ALI INVESTMENTS, INC., Petitioner, v. FIRST AMERICAN TITLE INSURANCE, etc., et al., Respondent.
    No. 5D06-288.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    R. Lee Dorough, Orlando, for Petitioner.
    Todd M. Hoepker of Todd M. Hoepker, P.A., Orlando, for Respondent.
   PER CURIAM.

Ali Investments, Inc., (“Petitioner”), seeks a writ of certiorari quashing a trial court order prohibiting Petitioner “from calling any witnesses at trial other than the Defendants and one representative from Plaintiff.” The order was entered as a sanction for Petitioner’s willful disregard of multiple discovery requests and court orders compelling responses to discovery, for non-compliance with the pre-trial deadlines for disclosure of witnesses, and for failure to comply with other aspects of the court’s pre-trial order.

Although it appears that the trial court acted within its discretion in imposing the sanctions about which Petitioner complains, we do not reach this issue. “[I]t is settled law that, as a condition precedent to invoking a district court’s cer-tiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.” Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998). Here, Petitioner has failed to demonstrate that it will suffer irreparable harm if the interlocutory order limiting testimony at trial is permitted to stand. See, e.g., Sardinas v. Lagares, 805 So.2d 1024 (Fla. 3d DCA 2001) (recognizing any error in pretrial order precluding testimony in civil case can be remedied on direct appeal); Siegel v. Abramowitz, 309 So.2d 234, 235 (Fla. 4th DCA 1975) (holding interlocutory orders are reviewable by certiorari only “when it clearly appears there is no full, adequate and complete remedy available by appeal after final judgment”).

PETITION DENIED.

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


source: Caselaw Access Project

author: PER CURIAM. SAWAYA, J.,

license: Public Domain

text:
    Viet HO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1198.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Michael D. Dicembre, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Viet Ho was charged with one count of conspiracy to traffic in MDMA (400 grams or more) and one count of conspiracy to traffic in cannabis (25 pounds or more). After a hearing, the trial court denied bond. Ho asserts that since the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, bond cannot be denied.

We agree, grant Ho’s petition for writ of habeas corpus, and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for the State to file a motion for pretrial detention, should it choose to do so. See Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006); Griffith v. State, 914 So.2d 1053 (Fla. 5th DCA 2005). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion.

PETITION GRANTED; CAUSE REMANDED.

SHARP, W. and THOMPSON, JJ., concur.

SAWAYA, J., concurs specially, with opinion.

SAWAYA, J.,

concurring specially.

The issue here is whether a motion for pretrial detention filed by the state is a necessary prerequisite to detaining a criminal defendant prior to trial when the defendant is charged with an offense that may subject him or her to pretrial detention pursuant to section 907.041, Florida Statutes (2005), and the defendant is found to be a danger to the community, a flight risk, or one who will undermine the integrity of the judicial process. Precedent emanating from this court, see Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006), and Griffith v. State, 914 So.2d 1053 (Fla. 5th DCA 2005), and from the Second District Court, see Golden v. Crow, 862 So.2d 903 (Fla. 2d DCA 2003), holds that it is.

It is difficult to determine from the language of rules 3.131 and 3.132, Florida Rules of Criminal Procedure, whether the Florida Supreme Court intended a motion for pretrial detention to be a necessary prerequisite. I believe that if this is indeed what the court intended, far too much discretion is taken away from the trial court to hold an accused without bond, and too much discretion is placed in the hands of the prosecutor to make that determination. Moreover, I believe that such a requirement contravenes the expressed purpose of section 907.041, which provides, in pertinent part, that “[i]t is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest.” § 907.041(1), Fla. Stat. (2005).

Ho was charged with an offense for which pretrial detention may be ordered. See § 907.041(4)(c)(3), Fla. Stat. (2005) (“The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exists: The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant’s appearance at subsequent criminal proceedings.... ”). He was arrested pursuant to a capias, which provided that he be held without bond. Although the record does not contain a transcript of Ho’s first appearance hearing or orders that may have emanated therefrom, the first appearance judge apparently ordered that he be held without bond. Subsequently, Ho filed a motion for bond and was given a full evidentiary hearing. After hearing all of the evidence presented, the trial court denied Ho’s motion and explained its reasons as follows:

At this point the Court is going to make a decision that this individual is not to be admitted to — be admitted to bail [sic] for the following reasons. He meets, critically, the three prongs of the statute as to what is the case law. One, he is a risk not to return to court, particularly in light of the testimony of Agent Weiss that says that even though he must have known he was being — his phone call was being intercepted, he talks about not leaving, and based on the G.P.S. tracking, as well as the following, he is intercepted at the airport trying to leave.
He has a series of prior offenses. He has a Federal offense where he was a codefendant with a codefendant in this particular case.
In addition, he goes out, while on bond, and allegedly is being accused of a burglary. That’s the other two prongs.
Number one, the integrity of the process, because he’s not staying out on bond without being accused of something else. Plus, in addition, you’re talking about protection of the public. If what is alleged is true, and I can take those priors into consideration, as well as pending offenses committed while— or, alleged to have been committed while on bail, certainly there’s an issue of protection of the community.
There is also the immigration hold that, even if I were to set bail, he’s not going anywhere at this point.
And it doesn’t matter because at this point this individual, based on what has been clearly testified to here, will not return to court, will not abide by the Court’s requirements and, quite frankly, the protection of the community requires that he be held. So at this point, I apologize, but at this point it’s very clear that someone without visible means of a lawful employment, despite his testimony, it does not bode very well for someone to return to court.
So, at this point, my apologies, I will deny the Motion for Bond without prejudice for it to be refiled and reconsidered in the event that additional factors are found that might dictate that to occur.

Ho filed a petition for writ of habeas corpus in this court citing Nguyen and Griffith and contending that the State’s failure to file a motion for pretrial detention automatically entitles him to be released on bond. He asserts that holding him without bond violates his constitutional rights to be released pending trial.

The constitutional right of an individual charged with a crime to be released on bail is set forth in article I, section 14 of the Florida Constitution, which provides:

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

This constitutional provision was revised in 1983, when the article was “amended to broaden the group of persons to whom the courts could deny bail.” State v. Paul, 783 So.2d 1042, 1045 (Fla.2001). The court in Paul further observed that

since the passage of the 1983 amendment, the Florida Constitution has provided two broad categories in which a person charged with a crime could be denied the right to be released on bond: (1) where the person is accused of a capital crime or an offense punishable by life imprisonment where the proof of guilt is evident and the presumption great; or (2) where no condition of release can reasonably protect the community, assure the presence of the accused or assure the integrity of the judicial process.

Id.

The Legislature enacted section 907.041 to implement the 1983 amendment, and the Florida Supreme Court amended rules 3.131 and 3.132 to complement this legislative scheme. Paul, 783 So.2d at 1046, 1048. As the court explained in Barns v. State, 768 So.2d 529 (Fla. 4th DCA 2000):

The legislature also made it clear that this court’s interpretation of the pretrial detention statute too severely limited the trial court’s discretion on bond issues. The statutory changes plainly implement the trial court’s discretion to impose pretrial detention within the limits of Article I, Section 14 of the Florida Constitution, which affords the trial judge wide latitude in the decision to deny bond:
If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.
Fla. Const. Art. I, § 14. The legislative intent behind section 907.041 was not to narrow the breadth of the trial court’s discretion under the state constitution, but to be coextensive with it.

Id. at 533.

Hence, neither the statute nor the rules were enacted to constrict the discretion of trial judges to determine whether an accused should be released and, if so, under what conditions. As to rule 3.131, which governs pretrial release, and rule 3.132, which governs pretrial detention, they are distinct rules adopted to deal with different procedures relating to the constitutional rights of an accused to be released pending trial. As we explained in Castro v. State, 914 So.2d 467 (Fla. 5th DCA 2005):

We suspect that some of the position articulated by Mr. Castro grows out of the differences between Rules 3.131(a) and 3.132(c), Florida Rules of Criminal Procedure, and the fact that the trial court apparently decided to hold a hearing to set bond, and a pretrial detention hearing at the same time. Rule 3.131(a) specifically addresses pretrial release and repeats the constitutional requirements requiring bail and its denial. Ordinarily, of course, the accused seeks the benefit of this rule. Rule 3.132, on the other hand, is based on section 907.041, Florida Statutes, and is concerned with pretrial detention. Obviously, Rule 3.132 is generally put into play by the State. Subparagraph (c) of the latter rule authorizes the receipt of hearsay evidence at a hearing on pretrial detention, but indicates that, “A final order of pretrial detention shall not be based exclusively on hearsay evidence.” See Azadi v. Spears, 826 So.2d 1020 (Fla. 3d DCA 2001). That language, however, is not found within Rule 3.131. We note that what the trial judge finally ruled on was apparently the motion to set bond. The finding that he made concerning the evident nature of the proof of guilt and the strength of the presumption invokes only Rule 3.131, and not Rule 3.132.
Mr. Castro argues essentially that the rule applicable to pretrial detention should also apply to pretrial release. [State v. Arthur, 390 So.2d 717 (Fla.1980)] says otherwise, and the rules are distinct. We decline to stir the two rules together. Each rule has a separate purpose and procedure, and they should not be mixed.

Id. at 469-70.

In my view, if the state does not file a motion for pretrial detention under rule 3.132, the trial court must consider the release or detention of the accused at first appearance, pursuant to rule 3.131. See Norris v. State, 737 So.2d 1240, 1242 (Fla. 5th DCA 1999) (“A defendant is entitled to an independent bail determination in front of the first appearance judge after a consideration of all relevant factors. A reading of the criminal rules in pari materia supports this conclusion.”), approved, 768 So.2d 1070 (Fla.2000). I do not believe that the state’s failure to file a motion for pretrial detention under rule 3.132 should deprive the trial court of the ability to determine pretrial detention under rule 3.131 at first appearance and order the accused detained, provided the necessary showing is made by the state and the appropriate findings are made by the trial court. If, on the other hand, the state elects to file a motion for pretrial detention pursuant to rule 3.132 at first appearance, the trial court will then proceed to determine whether probable cause exists under rule 3.132(a) and if probable cause exists, the accused will be held pending a final hearing on pretrial detention. See Fla. R. Crim P. 3.132(a). If the motion is filed after first appearance and probable cause is established, rule 3.132(b) is triggered. Hence, under rule 3.131, the lack of a motion by the state requires the issue of pretrial detention to be resolved at first appearance, while the filing of such a motion at first appearance simply extends the time for the pretrial detention hearing under rule 3.132(a) or (b). See Fla. R.Crim. P. 3.132(c) (“The hearing shall be held within 5 days of the filing of the motion or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later.”).

Ho does not allege in his petition that he was deprived of his first appearance and/or an appropriate pretrial detention hearing. See Hernandez v. Roth, 890 So.2d 1173, 1174 (Fla. 3d DCA 2004) (“Matters relating to the setting of bail and the conditions attached to a defendant’s pre-trial release on bail are reviewed under an abuse of discretion standard. Rodriguez v. McRay, 871 So.2d 1001 (Fla. 3d DCA 2004). Because trial judges are in a superior position to determine what conditions will be required to ensure that the defendant will appear in future proceedings and that the defendant is not a risk to the community, a defendant seeking a writ of habeas corpus ‘must adduce evidence sufficient to overcome the presumption of correctness of the trial court’s order.’ ”) (quoting State ex rel. Smith v. Untreiner, 246 So.2d 158 (Fla. 1st DCA 1971)); Vallejo v. State, 545 So.2d 506, 506 (Fla. 5th DCA 1989) (“The petition does not allege, nor does the record show that the relief requested would entitle the appellant to immediate release.”). Because the record does not contain a transcript of or information regarding Ho’s first appearance and orders emanating therefrom, I believe that we must presume that the trial court complied with the provisions of rule 3.131. Therefore, I do not believe that Ho has alleged in his petition for habeas corpus entitlement to the relief he requests.

Ho simply contends, citing to this court’s decisions in Nguyen and Griffith, that because the State never filed a motion for pretrial detention, he is automatically entitled to be released on bond. While that appears to be the holding in both decisions, I do not believe that either decision adequately analyzed rules 3.131 and 3.132 to arrive at that conclusion. In Griffith, this court explained the rationale for its decision as follows:

The state failed to file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132. Rule 3.132(a) states, “If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1).” Rule 3.131(b)(1) also states that unless the state has filed a motion for pretrial detention, the court shall conduct a hearing to determine pretrial release.
Because the state failed to file a motion for pretrial detention, we grant the petition for writ of habeas corpus and direct the trial court to conduct a hearing pursuant to Rule 3.131(b)(1) and determine appropriate conditions of release. See Golden v. Crow, 862 So.2d 903 (Fla. 2d DCA 2003).

914 So.2d at 1053.

The court in Golden explains that since rule 3.131(b)(1) does not contain a provision to hold a defendant without bond, the failure by the state to file a motion for pretrial detention necessarily requires that the defendant be released on one of the enumerated conditions in the rule. 862 So.2d at 904. However, this analysis fails to properly consider rule 3.131(a), which incorporates article 1, section 14 of the Florida Constitution, and provides that “[i]f no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.” See also § 904.041, Fla. Stat. (2005) (incorporating these constitutional provisions in its various sections). I believe that if the court determines that the defendant meets those criteria at an appropriate first appearance hearing, he or she may be held without bond. Moreover, rule 3.131(b)(1) specifically provides, as this court noted in Griffith, 914 So.2d at 1053, that “unless the state has filed a motion for pretrial detention [pursuant to rule 3.132], the court shall conduct a hearing to determine pretrial release.” I believe this means that the court shall determine whether the defendant will be released and, if so, under what conditions. I find support for this conclusion in rule 3.131, which states that “[t]here is a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release.” Fla. R.Crim. P. 3.131(b)(1) (emphasis added). Clearly, this language contemplates that a person may not be granted pretrial release under the provisions of rule 3.131(a). I also find support for this interpretation in rule 3.131(b)(3), which provides, in pertinent part, that “[i]n determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider ... other facts the court considers relevant.” (Emphasis added); see also Fla. R.Crim. P 3.131(d)(1)(D) (“No judge or a court of equal or inferior jurisdiction may modify or set a condition of release, unless the judge: is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release.”) (emphasis added). When all of the provisions of rule 3.131 are read in pari materia, as I believe they should be, I come to the conclusion that the state filing a motion for pretrial detention is not a necessary prerequisite to the court ordering a defendant to be held without bond pending trial, provided the issue of pretrial release or detention is properly resolved at first appearance.

Moreover, as previously indicated, Ho filed a motion to set bond and an evidentia-ry hearing was conducted where Ho and the State presented their evidence. After the hearing, the trial court denied Ho’s motion and held that he should be held without bond. Based on Ho’s petition for writ of habeas corpus, which does not allege that he was deprived of his first appearance and/or pretrial detention hearing, and the record in the instant case containing the transcript of Ho’s evidentiary bond hearing, I do not believe that Ho is entitled to release solely on the ground that the State did not file a motion for pretrial detention.

Nevertheless, our decisions in Nguyen and Griffith dictate the outcome here, and I, therefore, reluctantly concur in the majority opinion. Pursuant to our holding, Ho will be entitled to another hearing where, in all probability, the same witnesses and evidence will be presented; the only difference will be that the State will have filed its motion for pretrial detention, which will add nothing new of substance to the proceedings.


author: SAWAYA, J.

text:
    Marshall C. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-538.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Marshall Carter, Daytona Beach, pro se.
    No Appearance for Appellee.
   SAWAYA, J.

In his 1995 case, Marshall Carter appeals the denial of his second rule 3.850 motion for postconvietion relief. We vacate the trial court’s order as a nullity and dismiss this appeal for lack of jurisdiction.

On direct appeal, Carter’s five convictions were affirmed by this court, although resentencing was ordered. Carter v. State, 689 So.2d 455 (Fla. 5th DCA 1997). This court’s mandate issued on April 9, 1997, maldng Carter’s convictions final. See, e.g., Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.”).

Carter has since filed several postconviction motions, one of which resulted in his resentencing on September 26, 2003, nunc pro tunc to August 9, 1996. After that, he filed a rule 3.800(a) motion to correct his September 26, 2003, sentence. It was denied; he appealed; and this court per cu-riam affirmed on June 21, 2005. Carter v. State, 905 So.2d 146 (Fla. 5th DCA 2005). Carter’s motions for a written opinion, for rehearing, and for rehearing en banc were all rejected.

On October 20, 2005, Carter filed his second rule 3.850 motion, raising three claims that again attacked his September 26, 2003, sentence. While that was pending, Carter sought and received a belated appeal of that same sentence. The order granting relief was treated as a notice of appeal under rule 9.141(c)(5)(D) and that belated direct appeal is still pending in this court, case number 5D05-4482. Because jurisdiction had already lodged in this court for Carter’s pending resentencing appeal, the trial court erred in ruling on his rule 3.850 motion.

When a defendant files a notice of appeal before the trial court disposes of his postconviction motion, the defendant is deemed to have abandoned his motion. Hankerson v. State, 879 So.2d 71 (Fla. 5th DCA 2004); Moore v. State, 789 So.2d 551, 552 (Fla. 5th DCA 2001). Here, the trial court’s order is a nullity because the court lacked jurisdiction to enter the order while the appeal of the same subject matter was pending in this court. See Fla. R.App. P. 9.600; Rivera v. State, 913 So.2d 769, 770 n. 1 (Fla. 5th DCA 2005); Hankerson, 879 So.2d at 71-72. Further, as the trial court pointed out in denying rule 3.850 relief, Carter’s claims are matters to be raised on direct appeal.

ORDER VACATED; APPEAL DISMISSED.

THOMPSON and MONACO, JJ., concur.

      . We note, as an aside, that the trial court's April 6, 2006, "Order Denying Motion To Correct Sentencing Error” suffers from the same procedural flaw, so that the trial court was without jurisdiction to issue that order as well.
      We further note that Carter cannot persist in contesting his sentences forever. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.”).


author: PER CURIAM.

text:
    Steven CORN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4514.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Steven Corn, Sneads, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Steven Corn appeals from an order denying his petition for writ of habeas corpus. We affirm.

Corn pled no contest to aggravated child abuse on July 9, 2003. The trial court conducted a full plea colloquy, and accepted Corn’s plea. The agreement was that the State would waive the guidelines so that Corn could argue for a sentence that was less than the bottom of the guidelines. It was also agreed that the lower court would order a pre-sentence investigation, and set off sentencing. At the plea hearing, the lower court explained the maximum penalty and that Corn faced up to the maximum in what was, essentially, a plea to the bench. At sentencing, Corn requested a three-year prison sentence. The lower court imposed a sentence of seven years in prison, followed by three years of probation. Corn appealed, and we affirmed. Corn v. State, 870 So.2d 902 (Fla. 5th DCA 2004) (table).

Corn then filed a series of post-conviction motions. Relief was denied in each instance, and we affirmed in each instance. See Corn v. State, 882 So.2d 396 (Fla. 5th DCA 2004) (table); Corn v. State, 892 So.2d 1053 (Fla. 5th DCA 2004) (table); Corn v. State, 917 So.2d 204 (Fla. 5th DCA 2005) (table), rev. dism. 917 So.2d 204. Corn then filed a petition with this court claiming ineffective assistance of appellate counsel, which we denied on November 17, 2005 (Case No. 5D05-3816).

The current petition for writ of ha-beas corpus is simply another attempt to collaterally attack Corn’s underlying conviction. As such, it was properly denied. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

Additionally, upon reviewing this matter, we issued a Spencer order directing Corn to show cause “why he should not be denied further pro se access to the Court for any proceeding to further attack the conviction and sentence rendered below in Volusia County, Seventh Judicial Circuit Court Case Number 2003-01177-CFAWS.” Appellant responded by rear-guing the merits of his petition.

At this point, Corn is abusing the judicial process by his successive attacks upon his conviction and sentence. In order to conserve judicial resources, we prohibit Steven Corn from filing with this Court any further pro se pleadings concerning Volusia County, Seventh Judicial Circuit Court Case No. 2003-01177-CFAWS. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”) The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

MONACO, TORPY, and LAWSON, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


author: LAWSON, J.

text:
    D.E., Appellant, v. R.D.B., Mother, Appellee.
    No. 5D05-2032.
    District Court of Appeal of Florida, Fifth District.
    June 2, 2006.
    Michael E. Morris, Orlando, for Appellant.
    Joan Jordan Wood of Joan Jordan Wood, P.A., Orlando, for Appellee.
   LAWSON, J.

D.E., the former lesbian lover of R.D.B., appeals an order granting R.D.B.’s motion to dismiss her petition for dependency as to R.D.B.’s minor daughter, seven-year-old M.N.B. We affirm.

Appellant and R.D.B. resided together in a homosexual relationship from 1992 until sometime in 2003. R.D.B. conceived M.N.B. by artificial insemination during her involvement with Appellant. When the two broke off their relationship in 2003, Appellant sought visitation rights with respect to the child. Florida law, however, does not allow a non-parent to seek custody or visitation. See generally Wakeman v. Dixon, 921 So.2d 669 (Fla. 1st DCA 2006). Therefore, Appellant’s civil action was dismissed.

Appellant then sought to force visitation by filing a dependency action. Her petition alleged that M.N.B. is dependent within the meaning and intent of chapter 39, Florida Statutes, in that Appellee abused and/or neglected the minor child by cutting off all contact between the child and Appellant, causing the child significant harm. Hearings were held on the matter during which Appellant presented the testimony of Dr. Deborah Day, a licensed psychologist. Dr. Day testified that there could be psychological damage inflicted on the child if her primary or secondary attachment figure was abruptly and inappropriately removed from her life. This potential psychological damage was the only alleged incidence of abuse, abandonment or neglect presented at the hearing. After considering the evidence and argument of counsel, the trial court found no legal basis to conclude that depriving M.N.B. of contact with Appellant, someone to whom the child has no legal connection, constitutes the level of abuse needed to support a finding of a dependency.

We agree with the trial court that a parent’s decision to deprive a child of contact with someone who has no legal custody or visitation rights vis-á-vis the child is an inadequate ground upon which to base an adjudication of dependency. Cf. Clock v. Clock, 649 So.2d 312 (Fla. 3d DCA 1995) (holding the mere act of relocating or separating a child from familiar surroundings by an otherwise fit and proper custodial parent against the child’s wishes does not constitute abuse under the statutory definition and therefore does not render the child dependent); Jones v. A.W., 519 So.2d 1141 (Fla. 2d DCA 1988) (holding testimony relating to children’s expressed apprehensions over custody fight and charges parents were making against each other and concerning the atmosphere of turmoil created by a custody battle was insufficient to declare children dependent). Therefore, the petition for dependency was properly dismissed.

AFFIRMED.

SAWAYA and PALMER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Christian G. WEBER, Petitioner, v. Nataliya WEBER, Respondent.
    No. 2D05-4162.
    District Court of Appeal of Florida, Second District.
    June 2, 2006.
    Rehearing Denied June 2, 2006.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers; and Sonja K. Burkard of Burkard Law Firm, P.A., Fort Myers, for Petitioner.
    Paul Morris of Law Offices of Paul Morris, P.A., Miami, for Respondent.
   ALTENBERND, Judge.

Christian G. Weber (the husband) seeks a writ of prohibition or a writ of certiorari, challenging a circuit court’s order that it has subject matter jurisdiction to proceed with a dissolution of marriage action filed by Nataliya Weber (the wife). The husband argues that the circuit court lacks subject matter jurisdiction over this divorce because the wife’s status as a nonim-migrant alien prohibits her from claiming that Florida was her “residence” for the six months preceding the date she filed her petition for dissolution of marriage, as required by section 61.021, Florida Statutes (2004). We deny the petition. See Nicolas v. Nicolas, 444 So.2d 1118 (Fla. 3d DCA 1984); Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964).

The husband is a citizen of Germany who currently holds a “nonimmigrant visa” and resides in the United States. The wife is a citizen of the Ukraine and likewise resides in Florida on a “nonimmi-grant visa.” Before coming to the United States in 1998, the wife had resided in Germany since 1994.

The couple moved to Florida in December 1998. They obtained a marriage license and were married here in 1999. That same year, their daughter was born in Florida. She is, thus, both a United States citizen and a lifelong resident of Florida. The wife filed her petition for dissolution of marriage in a Florida circuit court in August 2004.

At the evidentiary hearing on subject matter jurisdiction, the wife testified that both she and the husband have Florida driver’s licenses and bank accounts. She indicated she has been a continuous resident of Florida since December 1998, and she presented evidence that she has been enrolled as a student in a nursing program at a community college in Florida since 1999. She also presented evidence from a babysitter who regularly provided child care for the parties’ child since 1999. The wife testified that she intends to reside in Florida permanently, at least as long as she is permitted to do so by the United States government.

The only evidence that seems to conflict with the wife’s testimony is the fact that she applied for “permanent residence” in Germany in 2004, a few months before she filed the petition for dissolution of marriage. However, the wife explained that she had sought dual citizenship with Ukraine and Germany because German citizenship would make it easier for her to travel internationally.

Based upon this evidence, the trial court ruled that that the wife was a resident of Florida pursuant to section 61.021, and thus, the court had subject matter jurisdiction over this dissolution proceeding. There is, of course, no dispute that the court has personal jurisdiction over the parties. The husband challenges the finding of subject matter jurisdiction in this original proceeding.

Section 61.021 states: “Residence requirements. — To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” Residency under section 61.021 means an actual presence in Florida coupled with an intention at that time to make Florida the residence. Rowland v. Rowland, 868 So.2d 608, 610 (Fla. 2d DCA 2004) (citing Copas v. Copas, 687 So.2d 885, 887 (Fla. 2d DCA 1997)). A continuous presence during the entire six-month period before filing the petition is not required. Rowland, 868 So.2d at 611.

Generally, whether a party is a resident within the meaning of section 61.021 is both a question of law and fact to be settled or determined from the facts of each particular ease. Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817, 819 (1945). Here, however, the husband argues that if a person is a nonimmigrant alien whose presence in this country is permitted based upon the understanding that it will not be permanent, that person cannot, as a matter of law, establish that he or she is a Florida resident because he or she cannot “legally” intend to remain in this state. Although the Third District in Nicolas, 444 So.2d 1118, and Perez, 164 So.2d 561, has rejected this argument, the Florida Supreme Court and this district have not previously spoken to this specific issue.

There is one Florida Supreme Court case addressing whether “citizenship” is a prerequisite for “residency” under the dissolution of marriage statutes. In Pawley v. Pawley, 46 So.2d 464 (Fla.1950), receded from on other grounds in Davis v. Dieujuste, 496 So.2d 806 (Fla.1986), the Florida Supreme Court stated:

“Our statute, 65.02, Florida Statutes 1941, F.S.A., reads, “In order to obtain a divorce the complainant must have resided ninety days in the State of Florida before the filing of the bill of complaint.” (Italics supplied.) It is obvious that the word resided could not properly be construed to encompass citizenship in a legal sense because one may come to this State, establish a bona fide residence of ninety days, thereafter institute a divorce action and have it heard and conclusively adjudicated on its merits before he could under the law become a citizen and enjoy all the privileges of citizenship. On the other hand, a person might reside in Florida many years and never become a citizen of this State or renounce his citizenship in a foreign jurisdiction. Indeed, failure to renounce pre-existing citizenship is nothing more than a circumstance to be considered in connection with the question of the bona fides of the plaintiffs residence which is the real test under our statutory law.... Citizenship is not a statutory jurisdictional prerequisite for divorce and neither of the words ‘citizen’ or ‘citizenship’ can be read into our statute.”

Id. at 471 (citation omitted). The opinion in Pawley, however, does not disclose under what conditions the wife in that case entered the United States; that is, whether she had an immigrant status which contemplated permanency or a nonimmigrant status which anticipated a temporary stay. Thus, Pawley does not conclusively resolve whether nonimmigrant status will prevent an alien from establishing residency for the purpose of filing an action for dissolution of marriage.

The husband argues that this specific issue is resolved by the supreme court’s reasoning in two subsequent cases: Cooke v. Uransky, 412 So.2d 340 (Fla.1982), and Juarrero v. McNayr, 157 So.2d 79 (Fla.1963). In these two cases, the Florida Supreme Court held that a nonimmigrant alien was not entitled to the constitutional homestead exemption from taxes and attachment by creditors. We conclude, as did the Third District in Nicolas and Perez, that Cooke and Juarrero are distinguishable and based upon considerations not present here. Like the Third District, we conclude that a person’s nonimmigrant status does not bar his or her ability to establish residency under section 61.021, although that status may be a factor in determining whether the person has a bona fide intent to remain in the state indefinitely.

In 1963, the Florida Supreme Court decided Juarrero. The case involved Cuban refugees, holders of nonimmigrant visas who had permission to stay indefinitely in the country and who sought to claim entitlement to the homestead property tax exemption. At the time, article X, section 7, of the Florida Constitution permitted such an exemption for “[e]very person who has the legal title ... to real property ... and in good faith makes the same his or her permanent home.” Relying on the constitutional language, the supreme court held that the nonimmigrant aliens could not claim then- residences as them “permanent homes” because they could not “legally intend to do that which by law and the temporary nature of their visas they are prohibited from doing.” Id. at 81.

In Cooke, 412 So.2d 340, the supreme court came to a similar conclusion in a case in which Canadian citizens, who were permitted to enter the United States on a temporary basis without obtaining a visa, sought to declare their Florida residence as their homestead and thus exempt from creditors’ claims in a bankruptcy proceeding. Although the court acknowledged that the constitutional homestead provision had been amended and no longer used the term “permanent home,” the court nevertheless concluded that the amendment “did not eliminate the requirement that the head of the family intend to make the property his family’s permanent residence.” Id. at 342. Thus, the court concluded that the “Canadian tourists” could not claim their residence as homestead in order to exempt it from the claims of creditors.

Despite this precedent, however, the Third District has concluded that a nonim-migrant alien whose status is based upon an understanding that he or she will not remain in the country permanently is not prohibited as a matter of law from establishing that he or she was a resident of Florida for six months in order to file a petition for dissolution of marriage. In Perez, 164 So.2d 561, decided one year after the supreme court’s decision in Juarrero, the Third District held that a Cuban refugee, intending to remain in the United States for an indefinite period, could establish that he had been a resident of Florida for the six months required by then section 65.02, Florida Statutes (1961), in order to file a petition for dissolution of marriage. Perez, 164 So.2d at 564. The Third District distinguished Juarrero, explaining that Juarrero “turned on the feature that the constitutional provision for the homestead exemption required the applicant to have a permanent home, and the court quite correctly held that a Cuban refugee, here for an indefinite period, but not on a permanent visa, could not be said to have a permanent home here.” Perez, 164 So.2d at 564.- The court added:

However, in administering the laws of the State of Florida with reference to divorce, courts should advert to the principle that the state is a party in interest in all divorce suits and that the public welfare and morals are necessarily involved.

Id.

The Third District reaffirmed the holding of Perez in Nicolas, 444 So.2d 1118. Citing Pawley, the court concluded:

Plainly, then, an alien’s foreign citizenship or non-permanent immigration status in this country does not constitute in itself an absolute residency bar to the maintenance of a marriage dissolution action by the alien in the Florida courts, although these factors are certainly evi-dentiary on the issue of domiciliary intent. ...

444 So.2d at 1120. The Third District added, “This conclusion is in accord with the overwhelming weight of authority on this subject throughout the country.” Id.; see also Emile F. Short, Annotation, What Constitutes Residence or Domicil Within State By Citizen of Another Country for Purpose of Jurisdiction in Divorce, 51 A.L.R.3d 223 (1973).

Like the Third District, we conclude that the wife’s nonimmigrant status does not preclude her, as a matter of law, from establishing residency in Florida under section 61.021. The holdings of Juarrero and Cooke, both of which result from the wording of the constitutional provisions regarding homestead, do not apply in this context. Certainly prohibiting a nonimmi-grant from claiming a tax exemption or an exemption from creditors’ claims raises significantly different policy issues than preventing a nonimmigrant who is legally in the state and hopes to remain from seeking a dissolution of marriage here.

There is no question in this case that the circuit court has personal jurisdiction over the parties and over their minor child who was born in this state and is a United States citizen. A Florida court has a significant interest in the impact of this dissolution on this child and any decisions that might be made regarding his or her custody and support.

The wife presented competent, substantial evidence to support the trial court’s finding that she resided in the state of Florida for the requisite six-month period and that she had a bona fide intent to remain in Florida indefinitely. As a result, we deny the petition for writ of prohibition or writ of certiorari because we conclude the circuit court had subject matter jurisdiction over this dissolution of marriage action.

Petition for writ of prohibition or writ of certiorari denied.

CASANUEVA and VILLANTI, JJ„ Concur.

      . See 8 U.S.C. § 1184.

      . See also DeQuervain v. Desguin, 927 So.2d 232 (Fla. 2d DCA 2006).


author: VILLANTI, Judge.

text:
    Danny Patrick KEELING, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3425.
    District Court of Appeal of Florida, Second District.
    June 7, 2006.

      Larry Sandefer of Sandefer & Murtha, P.A. Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Danny Patrick Keeling contends in this appeal that the trial court erred in denying his motion to suppress. He claims that the police lacked a founded suspicion that he had committed, was committing, or was about to commit a crime and thus the stop of his vehicle was unlawful. Accordingly, he contends that the trial court erred in denying his dispositive motion to suppress. We agree and, therefore, reverse.

In the early morning hours of July 30, 2004, St. Petersburg police officers responded to a report of a brawling at a convenience store. A clerk at the convenience store had called law enforcement regarding a violent altercation in the convenience store’s parking lot. The clerk reported four people were fighting, that a female went down with a possible head injury, and that a red Ford Ranger truck was leaving. The clerk reported the license tag number for the truck. Several police officers responded to the scene.

En route, Officer Troy Achey was given the residence address of the truck’s owner and, without being told or ascertaining any additional facts, proceeded directly to that address. The record does not show that Officer Achey was asked to stop the truck or in any way detain its driver. Officer Achey testified, “Prior to getting to the 7-Eleven, I was advised that a vehicle involved in the brawling had left the scene and they didn’t know who all was in the vehicle or how it was involved, but it had left and those people needed to be spoken to.”

As Officer Achey approached the address, he noticed a red truck matching the given description leaving the apartment complex, and he followed it. Officer Achey stopped the truck, not based on any traffic violation or exigent circumstances, but rather on the information received via his radio. All the other officers who responded to the call testified that the reason for stopping the red truck was solely to gain information. Prior to the stop, the driver of the truck was not specifically identified as a suspect in any criminal offense. After the stop, Officer Achey and Officer Egulf of the DUI unit arrested Keeling, the driver of the red truck, for driving under the influence of alcohol.

In order to justify an investigatory stop, a police officer must have a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing § 901.151(2), Fla. Stat. (1991)); Morrow v. State, 848 So.2d 1290 (Fla. 2d DCA 2003); Coney v. State, 820 So.2d 1012 (Fla. 2d DCA 2002); Bryant v. State, 779 So.2d 464 (Fla. 2d DCA 2000); State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). Mere suspicion is not enough to conduct an investigatory stop; the officer must have a well-founded and articulable suspicion of criminal activity. Popple, 626 So.2d at 186. “All that is required for a valid vehicle stop ... is a founded suspicion on the part of the officer effectuating the stop that the occupants have committed or are about to commit a crime.” London v. State, 540 So.2d 211, 213 (Fla. 2d DCA 1989) (citing Sumlin v. State, 433 So.2d 1303 (Fla. 2d DCA 1983)). “The officer’s suspicion is ‘founded’ upon an objective foundation which reasonably supports his assessment of the particular circumstances.” Carter v. State, 454 So.2d 739, 741 (Fla. 2d DCA 1984). In contrast, investigatory stops based solely upon an inarticulable hunch or unpartieularized suspicion are invalid. See State v. Setzler, 667 So.2d 343, 348 (Fla. 1st DCA 1995) (citing to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

Here, it is clear that the officer lacked a founded suspicion to stop and detain Keeling or his vehicle. The commotion at the convenience store did not support the stop, and indeed the officers at the scene did not request a BOLO for Keeling or his vehicle. Officer Achey’s independent observations did not, and could not, give rise to anything more than a mere suspicion of unlawful activity. If the officers desired to question Keeling concerning the alleged brawling incident, they should have waited for him to park and voluntarily exit his vehicle. At that point, a consensual citizen encounter would have occurred, and the odor of alcohol emanating from Keeling might then have served as probable cause to ultimately effectuate a valid DUI arrest.

Because the’ initial stop was unlawful, suppression should have been granted. Accordingly, we reverse the trial court’s denial of .the motion to suppress and remand.

CASANUEVA and KELLY, JJ., Concur.

        . The facts surrounding the convenience store clerk's call to law enforcement were not clearly developed in the record. We do commend the trial judge's admirable efforts to sort the confusing presentation at the suppression hearing into a comprehensive and comprehendible order.

      . The "Florida Stop and Frisk Law" provides:
      Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.
      § 901.151(2), Fla. Stat. (1991).


author: STEVENSON, C.J.

text:
    Carmela FERLANTI, as Personal Representative of the Estate and Survivors of Joseph Ferlanti, Appellant, v. LIGGETT GROUP, INC. and Vector Group Ltd., Appellees.
    No. 4D05-1724.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Angel M. Reyes and Daniel F. O’Shea of Reyes & O’Shea, P.A., Miami, and John Venable of Venable & Venable, P.A., Brooksville, for appellant.
    Denise B. Crockett and Alvin B. Davis, P.A., of Squire, Sanders & Dempsey, LLP, and Kelly A. Luther of Clarke Silverglate Campbell Williams & Montgomery, Miami, for appellee Liggett Group, Inc.
   STEVENSON, C.J.

Appellant, Carmela Ferlanti, as personal representative of the estate of her late husband, Joseph Ferlanti, appeals the trial court’s summary judgment entered in favor of appellee, Liggett Group, Inc. We reverse.

Ferlanti filed a personal injury lawsuit, seeking damages for injuries sustained by her late husband as a result of his smoking Liggett’s Chesterfield cigarettes. Discovery indicates that the decedent is believed to have smoked from 1941 until 2003. The first amended complaint contains four counts that are relevant for purposes of this appeal. Count I, for negligence, alleges that the cigarettes contained latent defects, that Liggett failed to use alternative safer designs to reduce or eliminate harmful materials or characteristics, that Lig-gett sold cigarettes containing “artificially high levels of nicotine,” and that, prior to 1969, Liggett failed to warn foreseeable users, such as the decedent, of the dangers posed by the cigarettes. Count II, for strict liability, asserts that the cigarettes’ defective design resulted in an unreasonably dangerous product, that Liggett failed to design and manufacture comparable cigarettes that reduced or eliminated the levels of tar, nicotine, and other harmful substances, and that Liggett failed to warn of the dangers caused by exposure to those products. Count III cites fraud, deceit, and misrepresentation. Count IV claims Liggett concealed the health risks posed by the cigarettes. The trial court entered summary judgment in favor of Liggett on all counts.

When granting summary judgment, the trial court held that both the negligence and strict liability claims were barred by conflict preemption. Under the Supremacy Clause of the United States Constitution, Congress may preempt state common law and state statutory law through legislation. See Art. VI, § 2, U.S. Const. “Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). The principles of federalism dictate that preemption should not be found “unless that is ‘the clear and manifest purpose of Congress.’ ” Teper v. Miller, 82 F.3d 989, 993 (11th Cir.1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). “[I]t is the burden of the party claiming Congress intended to preempt state law to prove it.” Video Trax, Inc. v. NationsBank, N.A., 33 F.Supp.2d 1041, 1048 (S.D.Fla.1998), aff'd, 205 F.3d 1358 (11th Cir.2000).

Liggett’s preemption argument relied heavily upon statements in Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), concerning tobacco and the national economy. Liggett contends that allowing tort claims against tobacco companies for producing, distributing, and selling cigarettes would conflict with the United States Supreme Court’s findings that “Congress stopped well short of ordering a ban” of tobacco products and “foreclosed the removal of tobacco products from the market.” Id. at 137-38, 120 S.Ct. 1291. However, as recognized by one court, “crucial to the FDA Court’s conclusion was its implicit determination that the FDA’s extension of jurisdiction over cigarettes and smokeless tobacco would have resulted in a ban of all tobacco products: there was no suggestion that there would be selective regulation of tobacco products based on their design. It is this result — a complete ban on tobacco products — that would have conflicted with Congressional intent.” Conley v. R.J. Reynolds Tobacco Co., 286 F.Supp.2d 1097, 1106 (N.D.Cal.2002) (citing FDA, 529 U.S. at 137, 120 S.Ct. 1291). We hold that to the extent appellant’s claims are based on a design defect in the cigarettes smoked by the decedent, her claims are not barred by the doctrine of conflict preemption. In light of this distinction, there is no conflict between the holding in this case and the Third District’s statement in Liggett Group, Inc. v. Engle, 853 So.2d 434, 460 (Fla. 3d DCA 2003), rev. granted, 873 So.2d 1222 (Fla.2004), that “[fjederal law preempts claims that selling cigarettes is tortious or otherwise improper.”

Having determined appellant’s claims are not preempted, we next determine whether her claims should have survived summary ' judgment. In granting summary judgment for the design defect claims, the trial court held that appellant presented no evidence that (1) the Chesterfield cigarettes were not ordinary or unreasonably dangerous and (2) an alternative cigarette design would have prevented her late husband’s injuries. Concerning the failure to warn claims, the trial court stated that the dangers of cigarette smoking were open, obvious, and common knowledge. The trial court also held that Liggett was entitled to summary judgment on the fraud and fraudulent concealment claims because appellant failed to present any evidence that her husband heard or relied on any misrepresentations or con-cealments.

Appellant filed several exhibits regarding the public’s general lack of knowledge of the dangers posed by cigarettes, including a Gallup Poll for the years 1949 through 1958. The Gallup Poll revealed that approximately 45% of all participants believed cigarette smoking is one of the causes of lung cancer. Appellant also introduced a survey that was conducted for Liggett in 1963.' There, only 39% of the 2,000 participants thought smokers should stop smoking for health reasons.

Liggett points to a document by Dr. Otis Graham to contradict appellant’s evidence concerning common knowledge. According to Graham’s research, “there was widespread public awareness, both before and especially after the medical reports that began in 1950, that cigarette smoking can be harmful to health, can lead to disease and death, and can be difficult to quit.” Both sides also referenced various cases where courts discussed whether the risks of cigarette smoking were common knowledge. Compare Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir.1996) (“Like the dangers of alcohol consumption, the dangers of cigarette smoking have long been known to the community.”), with Boerner v. Brown Williamson Tobacco Co., 394 F.3d 594, 599 (8th Cir.2005) (finding widower presented sufficient evidence to prevail on a design defect claim because “historically^ the average smoker did not fully appreciate the nature or severity of the health risks associated with smoking”).

In support of her claim that Chesterfield cigarettes were defectively designed, appellant presented evidence showing there is a close relationship between the materials in cigarettes and lung cancer. In fact, laboratory tests revealed that only fifteen Chesterfield cigarettes were needed to kill 50% of the animals tested — as opposed to thirty-eight cigarettes from other brands, such as the Sano unfiltered cigarette. Also, pursuant to transcripts included in the record, Dr. James Woods, a former employee of R.J. Reynolds Tobacco Company, opined that, presumably, a low tar, low nicotine cigarette would be a “safer cigarette” and that cigarettes can be made safer by reducing the cigarette’s diameter or length.

“A defendant’s motion for summary judgment is not a vehicle to test the sufficiency of the evidence to support a plaintiffs claims.” Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1077 (Fla. 2d DCA 2000). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). We agree that the trial judge impermissibly shifted the burden from Liggett. The record before this court shows numerous factual issues including, without limitation, whether the quantity of tar and nicotine made Chesterfield cigarettes defective, whether the risks associated with smoking cigarettes were open, obvious, and common knowledge, and whether Joseph Ferlanti relied on any statements or omissions. Liggett’s attorney did not conclusively rebut the allegations and evidence presented that Chesterfield cigarettes were defective. Nor did Liggett’s attorney disprove detrimental reliance. Appellant’s lack of knowledge concerning what her husband relied on and what he discussed with his children, grandchildren, and other individuals does not conclusively establish that the decedent did not rely on any statements or omissions. See Tooke v. Downing, 564 So.2d 250, 251 (Fla. 1st DCA 1990) (reversing summary judgment for the defendants in a wrongful death action stemming from a motor vehicle collision because the personal representative’s deposition testimony that she had no personal knowledge as to the facts surrounding the collision merely proved her state of knowledge as of that date and was not competent to prove that she “had no evidence regarding the alleged acts of negligence”).

Finally, “[t]he established rule in respect to judicial notice is that it should be exercised with great caution. The matter judicially noticed must be of common and general knowledge. Moreover, it must be authoritatively settled and free from doubt or uncertainty.” Makos v. Prince, 64 So.2d 670, 673 (Fla.1953). The existence of contradictory evidence on whether the dangers of smoking were common knowledge precluded the trial judge from taking judicial notice when ruling on the motions for summary judgment. See Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1154 (9th Cir.2005) (refusing to take judicial notice that the hazards of lung cancer were well known before 1969 because “the evidence in the record, though slight, is sufficient to survive summary judgment and raise a question for a trier of fact”); Tompkin v. Am. Brands, 219 F.3d 566, 573 (6th Cir.2000) (reversing summary judgment in favor of the defendant tobacco companies because a jury question existed regarding the extent of “common knowledge” of the link between cigarette smoking and lung cancer between 1950 and 1965).

Accordingly, we reverse the judgment on appeal and remand for further proceedings.

Reversed.

GUNTHER and TAYLOR, JJ., concur.

      . We do not address whether a party at trial is required to utilize an expert to establish that the dangers of cigarettes were common knowledge.


author: FARMER, J.

text:
    Michael OLIBRICES, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2104.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Jeffrey Golant, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

During jury selection in this criminal case the State exercised a peremptory challenge against juror Mohammed Kahn. Thereupon defendant objected, asking the court to require a non-invidious reason. The following then ensued:

Court: Is he a minority that’s recognized under Neil Slappy ? I have never heard Muslim recognized under Neil Slappy.
Defense: Your honor, if you give me a moment to look through my notes, that Neil Slappy can be used on anyone now.
Court: No, not anyone. It has to be a recognized class of people that resides in the Community. So far, the cases I have seen are race. I have seen Spanish, Jewish; I haven’t seen any Muslim.
State: Your honor, I don’t know if he was ever asked that question. I don’t know what his religious affiliation is. How could I strike somebody on religious affiliation?
Court: He is Pakistani. And I don’t think there’s a significant number of Pakistanis in the United States to come under Neil Slappy. There was nothing shown as to his religion.
State: Is it Hindu? I don’t know what the religion is in Pakistan.
Defense: There are many Muslims.
Court: Okay. I think counsel is looking up whether or not Pakistani comes under Neil Slappy, and I haven’t seen a case where Pakistani- — . By that theory, then, everyone would come under Neil Slappy because everyone came from somewhere.
Defense: Your Honor, I said the fact that he was Muslim.
Coitrt: There was no testimony whatsoever that he is Muslim, was there? It’s just an assumption on your part. He said he was Pakistani. That’s the ethnicity that I have.
Defense: And that assumption is based on, Your Honor, the name Mohammad is common.
Court: Well, unless you can show me a case where a Pakistani is excluded, or that’s something under Neil Slappy, that Pakistanis are a recognized group that comprises a group under Neil Slap-py. I have never seen a case on that. So I will deny it. Okay. He is struck. Mohammad Khan is struck by the state.
Defense: And I just object for the record, Your Honor.

Defendant was convicted and appeals. We reverse.

The exclusion of jurors by peremptory challenge under Florida law is subject to judicial examination to establish whether the prospective juror has been, singled out for invidious reasons. As the court explained in Muhammad v. State, 782 So.2d 343 (Fla.2001):

“The right to exercise peremptory challenges is no longer completely unfettered. It is now ... impermissible to exercise challenges on the basis of race, gender, or ethnicity. See, e.g., Abshire v. State, 642 So.2d 542, 543-44 (Fla.1994); State v. Alen, 616 So.2d 452, 454 (Fla.1993); State v. Neil, 457 So.2d 481, 486 (Fla.1984), receded from on other grounds, State v. Johans, 613 So.2d 1319, 1321 (Fla.1993). Accordingly, we recede from the language to the contrary in Francis v. State, 413 So.2d 1175, 1179 (Fla.1982).” [e.s.]

782 So.2d at 352, n. 4. In Dorsey v. State, 868 So.2d 1192 (Fla.2003), during a discussion of alleged impermissible peremptory challenges of jurors on invidious grounds the court said:

In response to the dissent’s suggestion that this holding applies to jurors of a ‘particular gender, occupation or profession or other economic, social, religious, political, or geographic group,' we note that this Court has not extended Neil’s protections beyond peremptory challenges based on race, gender, and ethnicity.

868 So.2d at 1202 n. 8 [c.o.]. This is therefore — at least partially — an issue of first impression.

The term ethnic — and by necessary implication its sibling, ethnicity — is understood to mean: “Of or relating to sizable groups of people sharing a common and distinctive racial, national, religious, linguistic, or cultural heritage.” American HeRitage Dictionary 630 (3d ed. 1992). According to an electronic encyclopedia:

“An ethnic group is a human population whose members identify with each other, usually on the basis of a presumed common genealogy or ancestry (Smith 1986). Ethnic groups are also usually united by common cultural, behavioral, linguistic, or religious practices. In this sense, an ethnic group is also a cultural community....
While ethnicity and race are related concepts (Abizadeh 2001), the concept of ethnicity is rooted in the idea of social groups, marked especially by shared nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds; whereas race is rooted in the idea of a biological classification of Homo sapiens according to chosen genotypic and/or phenotypic traits.”

The modern sense of the word ethnic thus clearly means “a member of a particular ethnic group” which, in turn, may involve a particular religious identification. Given this rather definite inclusion of religion in the elements of ethnicity, it is obvious that sharing a common religion cannot foreclose a social group from having a common ethnicity. Dorsey’s disclaimer of any holding applying Neil Slappy equally to the singular classification of religion does not yield the conclusion that the principle may not be applied where a common religious heritage is also involved in the shared identity of a given ethnic group.

Ethnicity was formally recognized for Neil Slappy purposes in State v. Alen, 616 So.2d 452 (Fla.1993). There, peremptory challenges were admittedly used to excuse potential Hispanic jurors. In extending Neil to persons of Hispanic ethnicity, the court offered the following by way of explanation:

“ ‘[m]any ties bind Hispanics together as a cognizable group within the community. Hispanics often share an ethnic and cultural ‘community of interest,’ including language, history, music, and religion. In addition, Hispanics have made notable achievements in the professions, the arts, industry and public life. On a more somber note, Hispanics, in relation to other Americans, share a host of harsh realities, such as relatively high unemployment, poverty, relative lack of educational opportunity and, of import to the present case, discrimination directed at them precisely because they are Hispanic.’ ”

616 So.2d at 455 (citing People v. Trevino, 39 Cal.3d 667, 217 Cal.Rptr. 652, 659-60, 704 P.2d 719, 726-27 (1985)).

Alen attempted to suggest a specific inquiry to assist in a judicial determination of whether a given group may be deemed a “cognizable class” for Neil purposes: “the cognizability requirement inherently demands that the group be objectively discernible from the rest of the community.” [e.s.] 616 So.2d at 454. The court said:

“First, the group’s population should be large enough that the general community recognizes it as an identifiable group in the community. Second, the group should be distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately represented by other segments of society.”

616 So.2d at 454. We do not think that the term community in this explanation should be understood in a physical sense but, instead, more as metaphor. We read it to refer to social groups linked by origin, language, culture and religion, not necessarily to a physical collection of people or houses in a city, county or nation. It is also not limited to oppressed minorities, for a party to litigation may also seek to use race, sex or ethnicity to remove members of the dominant social group from a proposed jury. In short, the court’s use of community in Alen should be read as shorthand for both de jure social groups, as well as racial, ethnic or religious groups sharing common characteristics a party is seeking invidiously to exclude.

We think the community of Pakistani people in the United States — numbering about 500,000 people — is large enough to be, by consensus, an objectively discernible group for ethnic classification. By population Pakistan is the sixth largest country in the world, sharing at least two dominant languages, a common culture, and is overwhelmingly Muslim. The population is heavily Semitic in origin. We therefore think its culture, language, history and' — ■ yes — its religion, make it objectively and discernibly large, distinct and homogeneous enough to be deemed an ethnic group capable of identification.

In fact we find that any difficulties in distinguishing this group are less daunting than those experienced by the Alen court’s attempt to describe the shared characteristics of the Hispanic ethnic group. 616 So.2d at 455. If Hispanics in this country do not necessarily have a common language, national origin, unique culture or religion, the Pakistanis here are more likely to have all of these characteristics in common. Moreover, in the wake of September 11, 2001, and the ensuing War on Terror against .enemies who are thought fanatically Muslim and Arab or Persian in origin, the possibility of group-based, invidious discrimination against Pakistanis in this country is not fanciful but real.

This juror was a member of an objectively discernible ethnic group. Whether he is thought of as Pakistani or as a practicing Muslim, Mr. Khan’s membership within the objectively discernible group of Pakistani Muslims was the basis for the objection to the exercise of the peremptory challenge. The Florida cases make plain that the protection of Neil Sloppy applies when a prospective juror is being barred from service because of membership in an objectively discernible ethnic group. Defendant’s objection was therefore based on the juror being excluded because of his ethnicity.

We conclude that whether the juror was challenged because he is of Pakistani origin or because his religious belief is Muslim, it would be a Neil Slappy violation to exercise a peremptory challenge of him on either account. In facially rejecting the objection to this challenge, it was error for the trial judge to conclude that no ethnicity violation could be shown because Pakistanis are not recognizable as an ethnic group under Neil Slappy.

Reversed for New Trial.

STEVENSON, C.J., and GUNTHER, J., concur.

      . Actually, defense counsel used the term "race neutral” [e.s.] in seeking the State's justification for the strike. Objections to per-emptoiy challenges of prospective jurors based on race, sex or ethnicity may actually involve more than one of these classifications. The term "race neutral” is therefore under-inclusive by two-thirds and hence unsuitable. A better term would be non-invidious. That is the one we have used here.

      . Referring to State v. Neil, 457 So.2d 481 (Fla.1984), and State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988). See also Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996). The elimination of prospective jurors on invidious grounds such as race and sex also offends federal law. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); J.E.B. v. Alabama ex rel. T.B., 511 .U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      .We reject the State’s argument that this issue was not preserved. Our review of the record reveals that the timing, sequence and context are such that the trial judge was under no illusion that defendant had abandoned this issue.

      . Wikipedia.org (site visited May 11, 2006).

      . In the translation of ancient Hebrew texts into Greek for the Christian Scriptures, the Greek word ethnilcs was used for the Hebrew word goyim. Thus while the early meaning of ethnilcs was a religious reference to gentiles, that noun usage disappeared after 1728. The adjectival, ethnic, a religious classification referring to heathen to set them apart from Christian and Jewish people, is still used. See American Heritage Dictionary 630 (3d ed. 1992) (Word History note following definitions of ethnic). Yet, even though the term ethnic might be equated primarily with a shared religion, to ascribe that meaning in the Neil Slappy context could have the effect of equating ethnicity with religion, the very thing Dorsey was at pains to disclaim deciding.

      . In fact, its official title is The Islamic Republic of Pakistan.


author: TAYLOR, J.

text:
    Pedro CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2371.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Pedro Castillo was charged by information with burglary of a structure but was convicted of burglary of a dwelling. On appeal, Castillo argues that his conviction for an uncharged crime denied him due process of law and constituted fundamental error. We agree and remand with instructions to reduce appellant’s conviction to burglary of a structure and to re-sentence him accordingly.

It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument. See State v. Gray, 435 So.2d 816, 818 (Fla.1983); Moran v. State, 869 So.2d 613, 615 (Fla. 4th DCA 2004); Mauldin v. State, 696 So.2d 801, 801 (Fla. 2d DCA 1997). “[T]he test for granting relief based on a defect in the charging document is actual prejudice to the fairness of the trial.” Gray, 435 So.2d at 818. So-called technical deficiencies in a charging instrument are waived if the defendant does not raise them before the state rests its case. McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002).

Fundamental defects, however, can be raised for the first time on appeal. See Fulcher v. State, 766 So.2d 243, 244 (Fla. 4th DCA 2000). A charging instrument is fundamentally defective if “it is so vague, inconsistent and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Brown v. State, 135 Fla. 30, 34, 184 So. 518, 519-20 (1938). The fifth district has noted that “[t]he overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried.” McMillan, 832 So.2d at 948.

Here, appellant was charged by an information that was captioned “Burglary (Dwelling).” The body of the charging instrument, however, alleged that appellant burgled a “structure,” and it referenced sections 810.02(1) and 810.02(4)(a), Florida Statutes. Section 810.02(1) provides a general definition of burglary:

(b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter!.]

Section 810.02(4)(a) outlines the elements for burglary of a structure or conveyance, a third degree felony:

Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Structure, and there is not another person in the structure at the time the offender enters or remains; or
(b) Conveyance, and there is not another person in the conveyance at the time the offender enters or remains.

In Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000), the defendant was charged with burglary of a dwelling. The information stated two of the three necessary elements for burglary and referenced the applicable statutes. We held: “Because the information in this case referenced the appropriate sections of our criminal code, the information was sufficient.” Id. at 245; see also State v. Phillips, 463 So.2d 1136, 1138 (Fla.1985) (finding information heading plus reference to the statute that defined the elements of the crime sufficiently fulfilled the constitutional requirements for a charging instrument); State v. Burnette, 881 So.2d 693, 695 (Fla. 1st DCA 2004) (“An information may withstand an untimely challenge to a technical deficiency (1) where a statutory citation for the crime is given, but all elements are not properly charged, or (2) where the wrong or no statutory citation is given, but all elements of the crime are properly charged.”); Cuevas v. State, 770 So.2d 703, 705 (Fla. 4th DCA 2000) (same).

In this case, the information clearly charged appellant with burglary of a structure. When a “discrepancy exists between the offense designated in the information heading and the crime depicted in the body of the instrument, the offense described in the body is the one with which the defendant is charged.” Troyer v. State, 610 So.2d 530, 531 (Fla. 2d DCA 1992). Although the charging instrument was titled “Burglary (Dwelling),” the information included the essential elements of burglary of a structure and a reference to that statute. This case is thus distinguishable from the cases cited above, because it included both the elements of burglary of a structure, as well as a reference to that statute. The “deficiencies,” therefore, are fundamental.

Burglary of a structure is a “necessarily included offense” of burglary of a dwelling. See Sassnett v. State, 838 So.2d 650 (Fla. 1st DCA 2003) (noting burglary of a structure is necessarily a lesser included offense of burglary of a dwelling); Florida Standard Jury Instructions in Criminal Cases p. 635 (5th ed.2005). In explaining lesser included offenses, our supreme court stated:

[T]he burden of proof of the major crime cannot be discharged without proving the lesser crime as an essential link in the chain of evidence.
[I]f there is sufficient evidence to establish the offense charged, there is necessarily sufficient eiddence to establish all elements of the lesser included offense.

Brown v. State, 206 So.2d 377, 382 (Fla.1968), overruled on other grounds by In re the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981), modified, 431 So.2d 599 (Fla.1981). Because the jury found appellant guilty of burglary of a dwelling, the state necessarily proved its case of burglary of a structure, a necessarily included offense. Accordingly, we remand this cause to the trial court to reduce the conviction to burglary of a structure and to re-sentence appellant.

Reversed and Remanded.

KLEIN and SHAHOOD, JJ., concur.

      . The Schedule of Lesser Included Offenses, included with the Florida Standard Jury Instructions, “is presumptively correct and complete.” Ray v. State, 403 So.2d 956, 961 n. 7 (Fla.1981).


text:
    Ricardo BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3109.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Bryan v. State, 865 So.2d 677 (Fla. 4th DCA 2004).

STONE, POLEN and FARMER, JJ., concur.


author: HAZOURI, J.

text:
    Amanda HYDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1404.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Amanda Hyde appeals her conviction and sentence for child neglect following a jury trial. Hyde contends the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence that she neglected her child by willfully failing to provide care so as to result in the reasonable expectation of serious physical injury to her child. We agree and reverse for entry of a judgment of acquittal.

Hyde was charged by information with neglect of a child, a third degree felony pursuant to section 827.03(3)(c), Florida Statutes (2003). Hyde was charged with failing or omitting to provide her child “with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child, ...” between August 1, 2003, and October 20, 2003.

Upon a review of the record, we conclude that the state did not present sufficient evidence to support a conviction for the charge of neglect of a child. The state presented no evidence that Hyde willfully failed to provide sufficient care for her child so as to result in the reasonable expectation of serious physical harm.

The only testimony presented concerning Hyde’s conduct was that her child had a very bad diaper rash which caused her buttocks and genital areas to be red and blistered, with an “unusual and foul body odor.” The only expert testimony at trial came from the child’s primary care pediatrician, Dr. Moshe Adler. Dr. Adler had been a pediatrician for twenty-three years and had personally treated the child on nine occasions. Dr. Adler described the child as a very premature baby born after only twenty-five weeks of gestation. He treated her for many childhood illnesses, including rashes, allergic reactions, ear infections, coughing, wheezing, fevers, and diarrhea. He and his colleagues consistently found the child to be alert, active, strong, and happy. There was never any notation made on the child’s forms of any signs of neglect or abuse, she was current on all of her immunizations, and, although small for her age, was growing as expected. The state called no expert witness and presented only lay witnesses whose testimony was insufficient to support the conviction. We therefore reverse the conviction and sentence for entry of a judgment of acquittal.

Reversed.

WARNER and GROSS, JJ., concur.


text:
    Elizabeth RIVERA and Edward Rivera, Appellants, v. PUBLIX SUPER MARKETS, INC., Appellee.
    No. 4D04-3880.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Lawrence P. Zolot, Hollywood, for appellants.
    Wesley L. Catri of Catri, Holton, Kes-sler & Kessler, P.A., Fort Lauderdale, for appellee.
   FARMER, J.

Once again, we reverse a final order awarding attorneys fees under an offer of judgment that failed to state the non-monetary terms with the particularity required by the rule. See Fla. R. Civ. P. 1.442(c)(2)(C)-(D); Swartsel v. Publix Super Mkts., Inc., 882 So.2d 449, 452 (Fla. 4th DCA 2004) (language of offer under rule 1.442 “must be construed in favor of the offeree when it does not make clear precisely what is being proposed”); Palm Beach Polo Holdings, Inc. v. Village of Wellington, 904 So.2d 652, 653 (Fla. 4th DCA 2005) (offer for “settlement must state with particularity any relevant conditions and all non-monetary terms”).

In this case, the offer specified as conditions of the settlement being proposed that the offeree execute a general release, a no-lien affidavit, a “hold harmless” agreement, and a stipulation for dismissal. No other terms of these proposed documents were stated, and no copies of any forms to be used were attached to the offer. The offeror’s willingness to allow the offeree to review these proposed agreements at the offices of the offeror’s attorney is facially insufficient. The rule requires that the offer itself state these conditions, and not a form tucked away in an office somewhere. See Fla. R. Civ. P. 1.442(c)(2) (“a proposal shall [state] ... ”).

We also reject the argument that our decision in Swartsel is not applicable to cases in progress when it was released. An appellate opinion explaining and applying the meaning of the law is applicable to all cases in progress and not yet final when it was released. See Smith v. State, 598 So.2d 1063, 1065-66 (Fla.1992) (decision “announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by [Florida] courts in every case pending on direct review or not yet final;” issue must be raised in trial court to preserve it for review); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467, 468 (Fla.1978) (“disposition of case on appeal should be made in accord with law in effect when appellate court’s decision is made” rather than law in effect when judgment was rendered); Fla. East Coast Ry. Co. v. Rouse, 194 So.2d 260, 262 (Fla.1967) (Florida rule is that appellate court reviewing judgment on direct appeal will dispose of case according to law prevailing at time of appellate disposition, and not according to law prevailing at time of rendition of judgment appealed); Clay v. Prudential Ins. Co. of Amer., 670 So.2d 1153, 1154 (Fla. 4th DCA 1996) (in reviewing judgments on direct appeal, appellate courts required to apply law prevailing when decision on appeal is made). Rouse was overruled by Smith only to the extent that Rouse did not appear to require that the issue actually had been first raised in the trial court and thus preserved for appellate review. The general rule applying the law in effect when the decision is made is undeniably true when the earlier appellate decision does not change the law, but merely interprets and applies it.

Reversed.

GUNTHER, J., and DONNER, AMY STEELE, Associate Judge, concur.


text:
    DAN JOINT VENTURE III, LP, Petitioner, v. Steven ARMSTRONG, an individual, Respondent.
    No. 4D06-1787.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Bruce R. Jacobs of Wedderburn & Jacobs, P.A., North Miami Beach, for petitioner.
    No response required for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. This court’s review of a decision of the circuit court sitting in its appellate capacity is limited to whether the court afforded due process and applied the correct law. See City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). There is no claim that the court denied due process, and it appears that the court applied the correct law. See Wilson v. Rose Printing Co., Inc., 624 So.2d 257 (Fla.1993); Fleet Servs. Corp. v. Reise, 857 So.2d 273 (Fla. 2d DCA 2003). On secondtier review, this court cannot conduct a de novo review of the record, and thus does not review the application of the correct law to the facts. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 845 (Fla.2001); see also Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (“The district court may not review the record to determine whether the underlying ... decision is supported by competent, substantial evidence.”) (citing Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000)); Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So.2d 1270, 1275-76 (Fla.2001) (holding the district court erred by reviewing the evidence and making an evidentiary ruling on second-tier review).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Mohamed Ali GHANEM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1745.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gross v. State, 820 So.2d 1043 (Fla. 4th DCA 2002) (holding that trial court did not impose an illegal sentence when it applied the sentencing guidelines in effect at the beginning of appellant’s criminal enterprise rather than those in effect at the end, because there was no statute or other rule that addressed the issue of which guidelines to apply to a continuing criminal enterprise); Gross v. State, 728 So.2d 1206 (Fla. 4th DCA 1999) (holding that convictions for grand theft charges, which were the predicate offenses for RICO conviction, did not violate double jeopardy); Hatchett v. State, 766 So.2d 499 (Fla. 5th DCA 2000) (stating that where appellant’s claim is that use of wrong guidelines affected his gain time, appellant must first exhaust his administrative remedies with the Department of Corrections).

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Barry ANDERSON, Appellant, v. Steven F. SINGER, The Warden of Columbia Correctional Institution, Appellee.
    No. 4D06-1576.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Barry Anderson, Lake City, pro se.
    No brief filed for appellee.
   PER CURIAM.

The court has reviewed appellant’s pleading filed March 17, 2006 which was designated as appellant’s initial brief by order. A review of said brief demonstrates that no preliminary basis for reversal has been demonstrated. Therefore, the appeal is affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a). We find that the appeal is frivolous and appellant is cautioned that the continued filing of frivolous actions may result in the imposition of sanctions. This is appellant’s second admonition regarding the filing of frivolous actions.

WARNER, FARMER and HAZOURI, JJ., concur.


text:
    Abedelkader DAWUDI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1102.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Abedelkader Dawudi, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We vacate the portion of the October 21, 2005, lower court order denying claim five of appellant’s rule 3.850 motion as the lower court did not have jurisdiction to rule on this claim while an appeal was pending in this court. Perez v. State, 834 So.2d 882 (Fla. 4th DCA 2002) (en banc). We remand with directions for the lower court to stay the proceedings on this claim until the pending appeal is resolved or to dismiss the claim without prejudice to refile when jurisdiction returns to the court. Cazeau v. State, 858 So.2d 1213 (Fla. 4th DCA 2003). However, the “better practice ... is to stay proceedings on the motion until resolution of the pending appeal.” Owens v. State, 911 So.2d 1277, 1277 (Fla. 4th DCA 2005). Claims one, two and three are affirmed. We also affirm the denial of claim four without prejudice to refile a legally sufficient claim alleging on what date the defendant discovered counsel’s affirmative misadvice. Miralles v. State, 837 So.2d 1083 (Fla. 4th DCA 2003).

POLEN, HAZOURI and MAY, JJ., concur.


author: PER CURIAM. GROSS, J.

text:
    Shaunte COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-153.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.

      Shaunte Collins, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Shaunte Collins appeals the trial court’s order denying his motion to correct an illegal sentence Sled pursuant to Florida Rule of Criminal Procedure 3.800(a). Collins’ motion includes claims that incorrect calculations were made on his scoresheet. We reverse and remand for further review of two of Collins’ three claims, which we find to be legally sufficient. Wencel v. State, 915 So.2d 1270 (Fla. 4th DCA 2005).

In his first point, Collins challenges the “prior record” points associated with one of two third degree felonies. In his third point, he challenges his “legal status” points and provides supporting dates associated with a Department of Juvenile Justice commitment and related aftercare. See generally Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998).

We reverse the order and remand for the trial court to review those claims on the merits. See State v. Anderson, 905 So.2d 111 (Fla.2005) (determining that the “would-have-been-imposed” standard is correct in considering a rule 3.850 motion for determining whether a scoresheet error requires resentencing but suggesting that a “could-have-been-imposed” standard would apply to a rule 3.800(a) motion).

TAYLOR and MAY, JJ., concur.

GROSS, J., dissents with opinion.

GROSS, J.

I respectfully dissent because error does not appear on the face of the record.


text:
    Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4347.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, and Anthony Smith, Arcadia, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We redesignate the appeal as one from the denial of a rule 3.850 motion and affirm in part and reverse in part the order appealed.

To the extent the trial court summarily denied the second ground of defendant’s rule 3.850 motion, we reverse and remand for the trial court to either hold a hearing or attach portions of the record conclusively refuting defendant’s claim that his negotiated plea was involuntary because it was based on an incorrectly prepared score-sheet which included, as additional offenses at sentencing, offenses for which he was sentenced as a habitual felony offender. See Fla. R.Crim. P. 3.704(d)(1) (providing in part that “[i]f sentences are imposed under section 775.084, or section 775.082(9), Florida Statutes, and the Criminal Punishment Code, a scoresheet listing only those offenses sentenced under the Criminal Punishment Code must be filed in addition to any sentencing documents filed under section 775.084 or section 775.082(9)”) (emphasis added).

As for the grounds of his initial rule 3.800(a) motion (to the extent they may be considered not to have been withdrawn by the amendment in which defendant substituted his rule 3.850 motion), and the first ground of his rule 3.850 motion, we affirm without further discussion.

Affirmed in part, Reversed in part and Remanded.

STEVENSON, C.J., WARNER and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. James Kevin DORT, Appellee.
    No. 4D05-3839.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellee.
   GROSS, J.

The state challenges the circuit court’s imposition of a downward departure sentence without providing written reasons or engaging in the proper analysis. See §§ 921.0026(1), 921.00265, Fla. Stat. (2004); State v. Baksh, 758 So.2d 1222, 1224-25 (Fla. 4th DCA 2000). We affirm the sentence because the state failed to preserve the issue in the trial court.

An appeal may not be taken from a trial court judgment unless a prejudicial error is “properly preserved,” or the error amounts to fundamental error. See § 924.051(3), Fla. Stat. (2005). To satisfy this preservation requirement, “an issue, legal argument, or objection to evidence” must be “timely raised before, and ruled on by, the trial court, and ... the issue, legal argument, or objection to evidence” must have been “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(1)(b), Fla. Stat. (2005). “The purpose of this rule is to ‘placet ] the trial judge on notice that error may have been committed, and providet ] him an opportunity to correct it at an early stage of the proceedings.’ ” Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (citing Castor v. State, 365 So.2d 701, 703 (Fla.1978)).

At the sentencing hearing in this case, the state failed to object to the downward departure sentence. The sentencing issue has therefore not been preserved for appellate review. See Douglas v. State, 913 So.2d 1234, 1237 (Fla. 3d DCA 2005).

Affirmed.

WARNER and HAZOURI, JJ., concur.


text:
    Myshion FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-705.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Myshion Floyd’s appeal on the charge of battery on a law enforcement officer. We remand, however, to the trial court to correct a scrivener’s error. The judgment form entered by the trial court shows an “X” marking the option that Floyd “Entered a plea of nolo contendere to the following crimes,” and then lists the offense of battery on a law enforcement officer. However, the record shows that Floyd actually entered a written plea of not guilty, and was subsequently found guilty by jury trial. Appellant need not be present to correct this error.

Affirmed; Remanded.

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


text:
    Joseph WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4409.
    District Court of Appeal of Florida, Fourth District.
    June 7, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to seek relief pursuant to Florida Rule of Criminal Procedure 3.850. See Dayton v. State) 867 So.2d 647 (Fla. 5th DCA 2004).

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