author: HAZOURI, J.

text:
    TRW AUTOMOTIVE U.S. LLC, (as assignee of the former TRW Inc., n/k/a Northrop Grumman Space and Mission Systems Corporation), TRW Vehicle Safety Systems, Inc., a foreign corporation, and TRW Canada Ltd., f/k/a TRW Vehicle Safety Systems, Limited, a Canadian entity, Appellants, v. Anibal Oscar PAPANDOPOLES, as Personal Representative of the Estate of Teresa Ivanoff, et al., Appellees. Bridgestone Corporation, Appellant, v. Anibal Oscar Papandopoles, as Personal Representative of the Estate of Teresa Ivanoff, et al., Appellees. Bridgestone/Firestone North American Tire, LLC, Appellant, v. Anibal Oscar Papandopoles, as Personal Representative of the Estate of Teresa Ivanoff, et al., Appellees. Bridgestone/Firestone North American Tire, LLC, Appellant, v. Blanca Del Valle Yampa, individually and on behalf of her son, Ronald Gustavo Manrique Eyzaguirre, Jr., a minor, et al., Appellees. Ford Motor Company, a foreign corporation, Appellant, v. Anibal Oscar Papandopoles, as Personal Representative of the Estate of Teresa Ivanoff, and Blanca Del Valle Yampa, individually, and on behalf of her son, Ronald Gustavo Manrique Eyzaguirre, Jr., a minor, et al., Appellees.
    Nos. 4D05-4816 to 4D05-4820.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    David B. Weinstein and Matthew Coveler of Pillsbury Winthrop Shaw Pittman, LLP, Houston, and Maria T. Kleppinger and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for appellants TRW Automotive U.S. LLC (as assignee of the former TRW Inc., n/k/a Northrop Grumman Space and Mission Systems Corporation), TRW Vehicle Safety Systems, Inc., a foreign corporation, and TRW Canada, Ltd., f/k/a TRW Vehicle Safety Systems, Limited, a Canadian entity.
    Ralph L. Marchbank, Jr. and Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for appellant Bridgestone Corporation.
    Christopher N. Bellows of Holland & Knight, LLP, Miami, for appellant Bridge-stone/Firestone North American Tire, LLC.
    Alina Alonso and Wendy F. Lumish of Carlton Fields, P.A., Miami, for appellant Ford Motor Company, a foreign corporation.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and John J. Uus-tal of Kelley Uustal, PLC, Fort Lauder-dale, for appellees.
   HAZOURI, J.

These five cases were consolidated for the purpose of assigning them to the same panel of judges for oral argument and for issuance of this opinion, as each case appeals the same order denying appellants’ joint motions to dismiss on forum non con-veniens grounds. See J.M.B. v. State, 776 So.2d 353, 354 (Fla. 1st DCA 2001) (recognizing that: “A fourth form of consolidation is referred to by this court as ‘travel together’, which simply means that the cases are assigned to the same panel of judges at the same time. This is employed when the cases are factually or legally related in some fashion but they remain separate for records and briefing, and is utilized to maximize this court’s judicial resources and ensure consistent outcomes. Cases may also be consolidated for oral argument, issuance of an opinion, or both.”).

Appellants, TRW Automotive U.S. LLC (as assignee of the former TRW Inc., n/k/a Northrop Grumman Space and Mission Systems Corporation), TRW Vehicle Safety Systems Inc., TRW Canada Ltd., f/k/a TRW Vehicle Safety Systems, Limited (“TRW”), Ford Motor Company (“Ford”), Bridgestone/Firestone North American Tire, LLC (“Bridgestone/Firestone”), and Bridgestone Corporation (“Bridgestone Corp.”), appeal the trial court’s non-final order denying their joint motion to dismiss a lawsuit filed by appellees, Aníbal Oscar Papandopoles, as Personal Representative of the Estate of Teresa Ivanoff, et al. (“Papandopoles”), on forum non conve-niens grounds.

Appellants, Ford and Bridgestone/Fire-stone, timely appeal the same order appealed in Papandopoles, which also denied their joint motion to dismiss a lawsuit filed by appellees, Blanca Del Valle Yampa, individually, and on behalf of her son, Ronald Gustavo Manrique Eyzaguirre, Jr., a minor, et al. (“Yampa”), on forum non conveniens grounds.

We reverse and remand for the trial court to conduct an adequate forum non conveniens analysis pursuant to Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996).

Papandopoles

On January 4, 2003, eight Argentine citizens were traveling in a 1998 Ford Explorer in the Town of San Pedro, Province of Buenos Aires, Argentina, when the vehicle allegedly rolled over. Six of the passengers suffered personal injuries and two suffered fatal injuries. The Papandopoles plaintiffs, including the six surviving passengers and persona] representatives of the two deceased passengers, filed suit in Broward County, Florida, against appellants, TRW, Ford, Bridgestone/Firestone, and Bridgestone Corp. The complaint asserted various negligence and products liability claims against appellants, and a claim for declaratory relief against Ford for violation of Florida’s Sunshine in Litigation Act, codified at section 69.081, Florida Statutes.

Yampa

On June 3, 2002, two Argentine citizens were traveling in a 1999 Ford Explorer in La Puerta, Argentina, when the vehicle allegedly rolled over. One of the passengers suffered personal injuries and the other suffered fatal injuries. The Yampa plaintiffs, including the surviving passenger and personal representative of the deceased passenger, filed suit in Broward County, Florida, against appellants, Ford, Bridgestone/Firestone, and Bridgestone Corp. The complaint alleged the same claims asserted in Papandopoles, adding a punitive damages claim against Ford. TRW was not a defendant in Yampa.

Motion to Dismiss for Forum Non Conveniens

In Papandopoles, appellants filed a joint motion to dismiss for forum non conve-niens, seeking dismissal to Argentina. TRW independently filed a motion to dismiss for forum non conveniens, arguing in the alternative that Michigan was another adequate, alternative forum. In Yampa, Ford, Bridgestone/Firestone, and Bridge-stone Corp. filed a joint motion to dismiss for forum non conveniens, adopting the motion and memorandum pertaining to Argentina filed in Papandopoles.

Prior to filing the motions in Papando-poles and Yampa, Ford and TRW filed a motion to dismiss for forum non conve-niens in Nowell v. Ford Motor Co., et al., Circuit Court of Broward County, Florida case number CACE 03-2698 08. Nowell was an action against Ford and TRW, brought by different Argentine plaintiffs, arising from a different accident in Argentina, involving a different Ford Explorer, but filed in Broward County by the same law firm that filed Papandopoles and Yam-pa. Bridgestone/Firestone and Bridge-stone Corp. were not defendants in No-well.

In December 2003, Judge J. Leonard Fleet denied the joint forum non conve-niens motion in Nowell. This court per curiam affirmed that order. See Ford Motor Co. v. Nowell, 896 So.2d 768 (Fla. 4th DCA 2005) (table). Following this court’s decision in Nowell, the plaintiffs in Nowell moved to consolidate Nowell, Papando-poles, and Yampa before Judge Fleet for pre-trial purposes. Judge Fleet granted the motion.

Following the consolidation, the parties set the motions in Papandopoles and Yam-pa for hearing before Judge Fleet. After a brief hearing, Judge Fleet denied appellants’ motions, incorporating his findings of fact and law and rulings from his order in Nowell. He made no specific findings of fact or law concerning Papandopoles and Yampa. Rather, he concluded that this court’s decision in Nowell was both controlling authority and the law of the case in Papandopoles and Yampa.

Appellants argue that the trial court erred in giving Nowell preclusive effect in Papandopoles and Yampa. We agree.

First, Nowell has no precedential value because it was a per curiam affirmance. See St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So.2d 244, 248-49 (Fla. 4th DCA 2005) (citing State v. Swartz, 734 So.2d 448 (Fla. 4th DCA 1999)) (acknowledging that “a per curiam affirmance without written opinion, even one with a written dissent, has no prece-dential value and should not be relied on for anything other than res judicata”).

Second, the trial court erred in considering the ruling in Nowell to be the law of the case. Whether a ruling is the law of the case is a question of law, which this court reviews de novo. Festival Fun Parks, LLC v. Gooch, 904 So.2d 542, 544 (Fla. 4th DCA 2005) (citing D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla. 2003)).

In Alford v. Summerlin, 423 So.2d 482 (Fla. 1st DCA 1982), the First District explained:

[T]he doctrine of the law of the case [states] that whatever is once established between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts in the case.

Id. at 485 (citing McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935); Rosenkrantz v. Hall, 172 So.2d 518 (Fla. 3d DCA 1965)). This court’s ruling in Nowell cannot be the law of the case in Papandopoles and Yampa because they are separate lawsuits involving different claims, raised by different plaintiffs, and arising out of different accidents. Further, Bridgestone/Firestone and Bridge-stone Corp. were not defendants in No-well.

Based on the foregoing, the trial court erred in giving Nowell preclusive effect in Papandopoles and Yampa.

Appellants argue next that the trial court erred in failing to conduct the four-step forum non conveniens analysis articulated by the Florida Supreme Court in Kinney. The Kinney factors were later codified in Florida Rule of Civil Procedure 1.061(a).

Rule 1.061(a) provides that an action may be dismissed on the grounds that relief can be sought in a more convenient forum if:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

Strauss v. Allstate Ins. Co., 855 So.2d 167, 168-69 (Fla. 4th DCA 2003). This court has consistently held that the trial court must conduct an analysis of these factors before ruling on a forum non conveniens motion. See Charles v. McMahon, 916 So.2d 1013, 1014 (Fla. 4th DCA 2006) (reversing order denying motion to dismiss on forum non conveniens grounds where trial court failed to engage in Kinney analysis either at the hearing or in its written order of denial); Strauss, 855 So.2d at 169 (reversing order granting motion to dismiss on forum non conveniens grounds where the record did “not demonstrate that the trial court conducted the requisite analysis of the above four factors before dismissing appellant’s action”); Carenza v. Sun Int'l Hotels, Ltd., 699 So.2d 830, 831-32 (Fla. 4th DCA 1997) (reversing trial court’s dismissal on forum non conveniens grounds where “[njeither the trial court’s order granting defendants’ motion nor its pronouncements during the hearing on the motion provide[d] th[e] court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion”).

The record in the instant case shows that the trial court did not conduct the required Kinney analysis as it applies to the specific facts and circumstances of Pa-pandopoles and Yampa. The trial court noted only that appellants failed to show how their case was “significantly factually substantively different from [Nowell] in which [it] ruled on the same legal concept of forum non conveniens” and thus, “[f]or the same reasons [it] outlined in Nowell, [it] reaffirm[ed][its] decision and adopted it by reference and [made] it the decision of this case.... ” Additionally, the trial court discounted the Kinney analysis completely when it concluded that it would “defy logic” to bring a case against an American manufacturer, arising out of the use of its product in a foreign country, anywhere but in an American court. The trial court noted:

The product is sold all over the world, but the defense that’s often made is, because I created this economic monster, I can’t think of any other words, with its tentacles all over the world, you have to go where each tentacle leads. You can’t come into one place.
It defies logic to say that, because, for example, the belt buckle is designed and manufactured in Michigan and put into a motor vehicle which is assembled in Brazil and then sold in Argentina where an event occurs, which raises a claim against an American multinational corporation, that the lawsuit should not take place within the embrasure of the United States courts.

In adopting and incorporating the findings of fact and law from Nowell, the trial court failed to address the Kinney factors as they relate to several key differences between Nowell and Papandopoles, and Nowell and Yampa. First, the trial court did not address the factors as they related to Bridgestone/Firestone and Bridgestone Corp., both not parties to the Nowell litigation. Second, the trial court did not address TRW’s argument that Michigan was an adequate alternate forum in addition to Argentina. Third, although the Nowell order discusses the affidavits filed by the parties in Nowell, the trial court in Papandopoles and Yampa never addressed the affidavit of Professor Keith Rosenn, submitted by appellants for the first time in Papandopoles and Yampa. Professor Rosenn’s affidavit refuted the representations concerning Argentine jurisdiction made in the affidavit of Dr. José Carlos Arcagni, submitted by appellees in Nowell, Papandopoles, and Yampa. The trial court’s order could not have addressed Professor Rosenn’s affidavit because it was not submitted in Nowell. However, Professor Rosenn was available to testify at the hearing in Papandopoles and Yampa, but the trial court did not take the opportunity to hear his testimony. Fourth, the trial court never addressed the additional affidavits of Dr. Arcagni and Professor Edgardo Rotman, which were not filed in Nowell. Finally, the Nowell order addresses facts that are unsubstantiated by the record in the instant cases. For example, the Nowell order states that “[t]he subject Ford Explorer is currently located in Broward County, Florida.” However, there is no evidence in the record to establish that this is true of the vehicles involved here.

Appellees assert two unpersuasive arguments in response. First, they claim that Charles, Strauss, and Carenza are distinguishable because:

None of those cases involved the situation, as here, where the court had made the required FNC analysis in a companion case, Nowell, which ruling was upheld on appeal; and where, in refusing to dismiss Papandopoles and Yampa, the court reaffirmed the reasons it had given in Nowell for refusing to dismiss that case to Argentina.

However, appellees cite no authority for the proposition that a trial court is absolved from engaging in the required Kinney analysis because it did so in a companion case. This is particularly true where the eases are separate lawsuits involving different claims raised by different plaintiffs and arising out of different accidents. Second, appellees claim that these cases are distinguishable because the trial court ruled only after repeated requests to appellants to demonstrate the factors that distinguished the forum non conveniens claim in Papandopoles and Yampa, from the prior forum non conveniens claim in Nowell. Again, however, this does not reheve the trial court of its responsibility to engage in an analysis of the Kinney factors and articulate that analysis, as explained in Charles, Strauss, and Carenza. Further, it was error for the trial court to expect Bridgestone/Firestone and Bridge-stone Corp. to explain the differences between Nowell, Papandopoles, and Yampa, where these appellants were not defendants in Nowell.

Accordingly, the trial court erred in denying appellants’ motion to dismiss without first conducting the required Kinney analysis, and we remand for the trial court to hold a hearing at which it conducts that analysis under the facts of these cases. We express no opinion as to the merits of the motion to dismiss for forum non conve-niens.

Reversed and Remanded.

GUNTHER and POLEN, JJ., concur.

      . Bridgestone Corp. did not appeal the forum non conveniens ruling in Yampa because it alleges it was never properly served and has never appeared in that case.

      . The two "new” affidavits by Dr. Arcagni were originally submitted in Pastor v. Bridgestone/Firestone North American Tire, LLC, et al., case number IP 04-5812, filed in the United States District Court for the Southern District of Indiana, but were not submitted in Nowell. One of these affidavits responded to contentions made by Professor Rosenn in his affidavit submitted by appellants in Pastor, where appellants sought dismissal to Argentina.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul FINE and Vita Fine, Appellants, v. REMAX ADVANTAGE PLUS, Appellee.
    No. 4D06-1867.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Jason Tracey, Margate, for appellants.
    Kenneth J. Scherer of Cohen, Norris, Scherer Et AL, North Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979).

WARNER, GROSS and TAYLOR, JJ., concur.


author: ORFINGER, J.

text:
    Christopher Michael SADLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-363.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Christopher M. Sadler challenges his convictions for purchase of a minor for involvement in pornography and solicitation to commit that offense. On appeal, Mr. Sadler presents three arguments: (1) that the court lacked jurisdiction over the instant matter; (2) that his conduct did not amount to the offense of purchase of a child for involvement in pornography; and (3) that his convictions are barred by double jeopardy. We find merit in Mr. Sad-ler’s first point and reverse.

The State charged Mr. Sadler by information with the crimes of purchase of a minor for involvement in pornography and solicitation to commit that same offense. See §§ 847.0145, 777.04(2), Fla. Stat. (2004). Subsequently, the State filed a nolle prosequi as to both charges, stating that it was “unable to locate an essential witness at this time, until her presence is secured, the State cannot proceed further with criminal prosecution.” Some fourteen months later, the State filed a document styled ‘Withdrawal of Announcement of Nolle Prosequi,” advising that “[a]n essential witness has been located by the State which warrants refiling of the case in Circuit Court.” No new information or indictment was filed. Apparently, after the State “withdrew” its nolle prosequi, the Clerk of the Court sent Mr. Sadler a notice to appear for trial. After the jury was selected and sworn and without objection, the State filed an “amended information,” charging the same offenses as were contained in the original information, but changing the dates of the offenses. At the conclusion of the proceedings, Mr. Sadler was convicted as charged, and sentenced to prison to be followed by sex offender probation. He now appeals his convictions.

Mr. Sadler raises, for the first time on appeal, that the trial court lacked jurisdiction over the instant action because no charging document was pending at the time the jury was selected and sworn. The State responds that an information had been filed in this case months earlier, although it acknowledges that it had been nolle prossed prior to trial. The State also contends that any defect in the information was waived by Mr. Sadler’s lack of objection. Finally, the State argues that if Mr. Sadler is entitled to relief, jeopardy did not attach and his only relief is remand for the State to cure any defect in the charging document and bring him to trial.

A court’s jurisdiction to try an accused defendant is not invoked and does not exist unless the State files an information or indictment. See State v. Anderson, 537 So.2d 1373, 1374 (Fla.1989) (holding “jurisdiction to try an accused does not exist under article I, section 15 of the Florida Constitution unless there is an extant information, indictment, or presentment filed by the state”); Winter v. State, 781 So.2d 1111, 1114 (Fla. 1st DCA 2001). A nolle prosequi effectively ends the proceeding, and, any action taken subsequent to the filing of the nolle prosequi is a nullity. State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979); Childers v. State, 277 So.2d 594, 596 (Fla. 4th DCA 1973) (Cross, J., concurring); see Hernandez v. Wainwright, 296 F.Supp. 591, 592 (M.D.Fla. 1969). As a result, the State’s written withdrawal of the nolle prosequi had no force or effect, and the State is unable to point to any authority to the contrary. See State v. R.J., 763 So.2d 370, 371 (Fla. 4th DCA 1998) (“Everything which occurs in a proceeding subsequent to the filing of a nolle prosse by the state is a nullity.”).

In the absence of an indictment or information formally charging Mr. Sadler with a crime at the time the jury was sworn and empanelled, the trial court had no jurisdiction to try Sadler on these charges. See L.C. v. State, 750 So.2d 160, 161 (Fla. 3d DCA 2000); see also R.J.; Braden; Childers. As the second district court explained in Caves v. State, 303 So.2d 658, 659 (Fla. 2d DCA 1974), “[a] criminal prosecution presupposes the existence of a valid accusation charging a crime against the defendant. Such an accusation in some form is an essential requisite of jurisdiction which cannot be waived.” Because the trial court lacked jurisdiction over the instant matter, Mr. Sadler’s prosecution for the offenses was void and without effect. Freccacreto v. State, 291 So.2d 630, 631 (Fla. 4th DCA 1974) (holding that because the charge had been nolle prossed, the state failed to charge the defendant with a crime of which he was convicted; accordingly, judgment and sentence entered upon count of information that was nolle prossed was vacated and set aside and declared to be void). However, Mr. Sadler’s prosecution is not barred on the basis of double jeopardy. See Little v. Wainwright, 161 So.2d 213, 214 (Fla.1964) (explaining that generally, proceedings must be valid in order to afford proper basis for claim of double jeopardy, and proceedings that are lacking in any fundamental prerequisite that renders judgment void will not constitute proper predicate for such claim).

We also reject the State’s waiver argument. Subject matter jurisdiction cannot be created by agreement or waiver. While the State correctly argues that technical defects in an information, such as the failure to have the information properly sworn to, can be waived, that rule presupposes the existence of a charging document. Here, there was none. Finally, the State can point to no authority that would have jurisdiction vest retroactively upon the State’s filing of an “amended information” after the jury was sworn. As the State now knows, “[t]he filing of [a] nolle pros by the State may have awesome consequences which should be contemplated before such action is taken.” State v. Spence, 658 So.2d 660, 661 (Fla. 3d DCA 1995).

For the foregoing reasons, we reverse the convictions and remand for a new trial. We find no merit in the remaining issues raised.

REVERSED AND REMANDED.

THOMPSON and TORPY, JJ., concur.

      . It is noted that the State may prosecute on the basis of another information so long as the State complies with the applicable statute of limitations and the speedy trial rules. See State v. Hurd, 739 So.2d 1226, 1228 (Fla. 2d DCA 1999); see also State v. Sokol, 208 So.2d 156 (Fla. 3d DCA 1968).


author: WOLF, J.

text:
    Lamar Reshaud PLAYER, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-0054, 1D06-0056.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Nancy A. Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges a final judgment finding him guilty of three conditions of probation. We find merit to several issues raised by appellant which we address within this opinion. We affirm as to all other issues.

Appellant was found guilty of violating his probation based on the new law offense of possession of cocaine. The State failed to prove appellant was in actual or constructive possession of the co-came. See Hill v. State, 736 So.2d 133 (Fla. 1st DCA 1999). This charge could not be the basis of the violation of probation.

Appellant asserts insufficient evidence was presented at the violation hearing to support a finding of violation premised on appellant’s possession of drug paraphernalia. No evidence was presented on this specific charge. We, therefore, reverse this finding as well.

Appellant also asserts that the trial court abused its discretion in finding that appellant violated his probation based on his probation officer’s testimony regarding a positive drug urinalysis performed by a treatment facility. The only testimony by the State regarding appellant’s drug analysis came from the probation officer. He testified that he received a sheet from a drug program indicating that appellant’s urine test was positive. This document was never entered into evidence. The testimony from the probation officer standing alone will not support a finding of violation. Whisler v. State, 569 So.2d 934 (Fla. 1st DCA 1990); but see Peters v. State, 919 So.2d 624 (Fla. 1st DCA 2006); Davis v. State, 562 So.2d 431 (Fla. 1st DCA 1990) (holding lab report properly admitted as business record supported finding of violation of probation).

We, therefore, reverse and remand to the trial court for further proceedings.

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


author: THOMAS, J.

text:
    Carroll LAURAMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4131.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.

      Carroll Lauramore, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s ruling.

Appellant asserts that his sentences for robbery and burglary are illegal under Hale v. State, 630 So.2d 521 (Fla.1993), which prohibits the imposition of consecutive habitual offender sentences for multiple crimes arising from a single criminal episode. The trial court treated Appellant’s motion as a motion filed pursuant to rule 3.850 and denied it as untimely.

A Hale claim is cognizable in a rule 3.800(a) motion if the motion is facially sufficient and the issue can be resolved from the face of the record. See Jackson v. State, 803 So.2d 842 (Fla. 1st DCA 2001). In order to allege a facially sufficient rule 3.800(a) motion, the appellant must allege: (1) he is serving an illegal sentence; (2) the error appears on the face of the record; and (3) how and where the record demonstrates an entitlement to relief. See Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998).

Appellant’s motion is facially insufficient, as he alleges neither how nor where the record demonstrates that his crimes arose from a single criminal episode. See Harris v. State, 875 So.2d 735 (Fla. 2d DCA 2004) (holding that in the context of a Hale claim, the appellant must identify with particularity the non-hearsay record documents demonstrating that his crimes arose from a single criminal episode); Jackson, 803 So.2d at 845 (holding that a Hale claim alleging that the “trial transcripts”j demonstrated the crimes occurred in a single criminal episode was facially insufficient where the motion did not allege “how” the transcripts showed this). We AFFIRM the trial court’s ruling.

KAHN and POLSTON, JJ., concur.


text:
    William Earl Davail HEARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-488.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Edwin S. Zeitlin, Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998) (holding noise ordinances based on distances beyond which the sound may not be audible are neither vague nor overbroad).

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


author: THOMAS, J. WOLF, J., PADOVANO, J.,

text:
    STATE of Florida, Appellant, v. Kelly Louise GRIFFIN, Appellee.
    No. 1D06-3154.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.

      Bill McCollum, Attorney General, and William L. Nelson, III, Assistant State Attorney, Shalimar, for Appellant.
    Ashley Smith Herndon of Dewrell & Herndon, Shalimar, for Appellee.
   THOMAS, J.

The State appeals the trial court’s order granting Appellee’s motion to suppress evidence discovered as a result of a law enforcement’s dog alert on her vehicle. The trial court found that the officers did not have probable cause to search Appellee because a dog alert provides probable cause to search only the car. Because we are constrained by Williams v. State, 911 So.2d 861 (Fla. 1st DCA 2005), we affirm the trial court’s suppression of the evidence. Were we to address for the first time whether a dog alert provided probable cause to search Appellee, we would reverse the trial court’s order based on Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), and Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). We are foreclosed from reaching this decision in light of our prior precedent; therefore, we certify a question of great public importance and address this issue below, as the far-reaching implications of Pringle have not yet been analyzed by our court.

Because we affirm the trial court’s ruling that the officers did not have probable cause to search Appellee, we do not need to reach the second issue on appeal, whether the trial court erred in finding that the length of Appellee’s detention was unreasonable; however, we believe it is necessary to consider the second issue in the event of further judicial review, and find the trial court erred in ruling that the detention was unreasonable. The facts clearly show that any delay was de minim-is and not a constitutional violation. See State v. Williams, 565 So.2d 714 (Fla. 3d DCA 1990).

Facts and Procedural Background

A canine handler for the Okaloosa County Sheriffs Department stopped Appellee for speeding and failure to maintain a single lane. Five to ten minutes later, while writing the traffic citation, a second deputy arrived; because Department procedure requires that another officer be present for a dog sniff, the canine handler stopped writing Appellee’s citation and walked the dog around the vehicle. The dog alerted to the odor or presence of contraband or narcotics on the driver’s side of the car, where Appellee, as the sole occupant in the vehicle, was sitting during the entire episode. The canine handler testified that walking the dog around Appellee’s car took between 20 to 90 seconds, and he completed writing the citation immediately following the walk-around. The canine handler acknowledged that before he walked the dog around Appellee’s car, he had no reasonable, articulable suspicion to believe there was criminal activity afoot.

After the alert, the canine handler asked Appellee to step out of her vehicle. The second deputy conducted a pat-down search of Appellee, and a crack cocaine cylinder fell from her pants leg. No other contraband was found in the vehicle. Ap-pellee was arrested approximately 15 minutes after the traffic stop began and was then transported to the jail, where law enforcement officers discovered more “crack cocaine screens” and two Ritalin pills in her purse, for which she had no prescription.

Appellee was charged with possession of drug paraphernalia and possession of a controlled substance; she pled not guilty and filed a motion to suppress all drug evidence. At the suppression hearing, Ap-pellee did not raise any claim regarding the accuracy of the dog sniff, the training of the dog, or possible false alerts. The trial court ruled that the officers did not have probable cause to search Appellee’s person and that the search occurred after an unreasonably lengthy detention of Ap-pellee. The State appeals both of the trial court’s findings.

Dog Alerts and Probable Cause

We begin by recognizing that “the use of a well-trained narcotics-detection dog ... during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 884 (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). A person has no reasonable expectation of privacy in odors that emanate from a car in a public place. Hearn v. Bd. of Pub. Educ., 191 F.3d 1329, 1332 (11th Cir.1999). Once a dog alerts to a car, therefore, probable cause exists to search the car. Id. at 1333.

Appellee does not assert that the deputy lacked probable cause to believe she had committed traffic violations; neither does the State assert that any probable cause or reasonable suspicion existed, other than the dog sniff and alert, to justify the search of Appellee. The issue raised here is whether a properly trained narcotics-detection dog sniff and alert on Appellee’s vehicle provided law enforcement with probable cause to search Appellee, the driver and sole occupant of the vehicle.

In Pringle, the Supreme Court held that when law enforcement officers discovered drugs in an armrest in the backseat of a vehicle and cash in the glove compartment, the officers had probable cause to arrest all the passengers if no passenger admitted ownership of the contraband, because the contraband could belong to any one of them. 540 U.S. at 374, 124 S.Ct. 795. Although probable cause in Pringle was established by an actual seizure of contraband, we believe that it is the existence of probable cause, not the extent of probable cause, which authorized the search. Here, the dog alert established probable cause that both the car itself and Appellee, as the sole occupant of the car, possessed contraband; therefore, the deputy not only had the lawful authority to search Appel-lee’s car, but also probable cause to search Appellee.

However, under Williams, we must find that the dog alert provided probable cause to search Appellee’s car, but not to search her person. 911 So.2d at 861. This court’s opinion in Williams cites two Second District cases to support its holding: Cady v. State, 817 So.2d 948 (Fla. 2d DCA 2002), and Bryant v. State, 779 So.2d 464 (Fla. 2d DCA 2000); however, the Second District recently noted that Prin-gle “may have effectively overruled our precedent involving circumstances similar to those presented here.” Perry v. State, 916 So.2d 835, 839 (Fla. 2d DCA 2005). Although the Second District ultimately found that Pringle did not overrule its prior precedent, we would find that the cases this court relied on in Williams are no longer persuasive under Pringle.

In both Cady and Bryant, the Second District was concerned that a defendant should not be subjected to a search if it is possible that the narcotics odor is residual and does not necessarily belong to the defendant. In our view, however, that possibility does not detract from the possibility that the car or the passengers possess contraband. Quite the contrary; as one court has noted, the power of a well-trained narcotics-detection dog to alert the residue of contraband only increases the possibility that the car contains contraband. State v. Cabral, 159 Md.App. 354, 859 A.2d 285, 300 (2004) (stating that the fact that a trained dog is capable of detecting odors up to 72 hours after contraband is present in the vehicle only strengthens the probable cause finding due to the dog’s superior sense of smell); accord U.S. v. Johnson, 660 F.2d 21, 23 (2d Cir.1981) (noting the fact that a dog can alert to residual odors “misconstrues the probable cause requirement. Absolute certainty is not required by the Fourth Amendment. What is required is a reasonable belief that a crime has been or is being committed.”). Here, the fact that the dog alert may have been in response to contraband no longer present in the car does not mean that law enforcement failed to rely on a reasonable probability that contraband was present on Appellee’s person or in her car.

Additionally, other courts have upheld searches involving similar facts to those presented here. See State v. Ofori, 170 Md.App. 211, 906 A.2d 1089, 1099 (2006) (holding that the Pringle decision is “absolutely dispositive” in establishing that a dog alert on a car provides probable cause to search the driver and passengers because of the “close association” between the contraband and the car’s occupants). See also United States v. Klinginsmith, 25 F.3d 1507 (10th Cir.1994) (explaining that a dog alert to a car provided probable cause to arrest the defendant). In Ofori, the Maryland court explained that “either finding the drugs in the vehicle, as in Pringle, or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers.” 906 A.2d at 1099.

We believe that our decision in Williams cannot be squared with the holding in Pringle and its definition and discussion of probable cause. In Pringle, the Supreme Court stated that the “standard of probable cause protects ‘citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,’ while giving ‘fair leeway for enforcing the law in the community’s protection.’” 540 U.S. at 370, 124 S.Ct. 795 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The Court recognized that it had repeatedly held that probable cause is a “practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. (internal quotations omitted). “The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Id. at 371, 124 S.Ct. 795. The underlying “ ‘substance of all the definitions of probable cause is a reasonable ground for belief of guilt’ ... and that the belief of guilt must be particularized with respect to the person to be searched or seized.’ ” Id. (citing Brinegar, 338 U.S. at 175, 69 S.Ct. 1302; Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). Most importantly, the probable cause standard is not synonymous with “ ‘the quanta ... of proof appropriate in ordinary judicial proceedings” and “standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable cause] decision.’ ” Id. (quoting Brinegar, 338 U.S. at 173, 69 S.Ct. 1302; and Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (emphasis added).

The facts and principle announced in Pringle are instructive here. In Pringle, the police seized evidence of a crime from a car with multiple passengers; here, based on the dog alert, police had probable cause to believe evidence of a crime existed either in the vehicle or on Appellee’s person. In both Pringle and here, law enforcement had a reasonable belief that the passengers in the car had committed or were committing a crime which provided the probable cause to search and arrest the defendants.

We find that other courts’ reliance on theoretical possibilities, such as “residual odor,” Bryant, 779 So.2d at 465, or statements such as “proximity to contraband is insufficient to establish constructive possession,” Cady, 817 So.2d at 949, in evaluating probable cause are simply untenable in light of Pringle. Such analyses are technical in nature and more appropriate in criminal trials in which guilt beyond a reasonable doubt must be determined, not in trial courts considering motions to suppress. We believe the Second District was correct to question the viability of its precedent under Pringle, even if it ultimately disagreed. See Perry, 916 So.2d at 839. We think the Second District’s analysis in Bryant and Cady, and our reliance on such authority in Williams, runs afoul of the Supreme Court’s holding by confusing the quanta of proof necessary for conviction with the quanta of proof necessary to support a finding of a “reasonable ground for belief of guilt” that a person possesses contraband.

Here, there was a reasonable ground for belief that Appellee possessed contraband. Appellee was alone in the vehicle, was sitting in the area where the dog alerted during the walk around, and admitted to being the primary driver of the vehicle. Under Pringle and related cases, we would find that a trained dog alert provides probable cause to search a driver who is the sole occupant of the car.

We find the rationale and analysis in Ofori particularly persuasive, especially its understanding and analysis of the holding in Pringle:

The Supreme Court’s decision in Maryland v. Pringle is absolutely dispositive. Because of the close association between contraband in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle, or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers. Whatever the level of certainty we have reached with respect to the presence of contraband itself, its association with the occupants of the vehicle is the same. In terms of that inculpatory association, the Supreme Court’s unanimous opinion observed:
We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.
540 U.S. at 372, 124 S.Ct. 795.
In any event, we are applying the law as we laid it down in State v. Funkhouser, 140 Md.App. 696, 721, 782 A.2d 387 (2001):
The probable cause developed by the initial canine “alert” was at one and the same time probable cause to believe both 1) that drugs were probably then in the car and 2) that its driver and sole occupant probably was then or recently had been in unlawful possession of those drugs.
The fact that the appellee here was not the “sole occupant,” but only one of two, does not alter the result.

Ofori, 906 A.2d at 1099-1102 (emphasis omitted) (internal citations omitted).

It is our belief that once the officers searched Appellee’s car and found no contraband, the officers then not only had the authority, but also the duty, to search Ap-pellee. When the dog alerted, there was probable cause that contraband was in the car; once the car was cleared, by the process of elimination, probable cause then existed to search Appellee.

Our constitution requires us to construe the right to be free from unreasonable searches or seizures “in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Art. 1, § 12, Fla. Const. See Golphin v. State, 945 So.2d 1174, 1190 (Fla.2006) (“[B]y Florida constitutional mandate [in article I, section 12] we are not free to follow the interpretative path of ... other states and must be firmly tied to the interpretative construct of our United States Supreme Court decisions.”). Although we are bound by our prior precedent, we believe such precedent is contrary to prevailing Fourth Amendment doctrine; therefore, we find that this case presents a question of great public importance, which we certify to the Florida Supreme Court.

Unreasonable Detention

As mentioned above, we would reverse the trial court’s ruling that the dog sniff occurred after an unreasonable detention of Appellee. We find the following brief description of the legal principles applicable to this issue succinct and correct:

A canine sniff of the exterior of a car conducted during a traffic stop that is lawful at its inception and otherwise executed in a reasonable matter does not infringe upon a constitutionally protected interest in privacy. Such a dog sniff may be the product of an unconstitutional seizure, however, if the traffic stop is unreasonably prolonged before the dog is employed. Once an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth Amendment applies to limit any subsequent detention or search. We recognize, however, that this dividing line is artificial and that dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions on the defendant’s Fourth Amendment rights.

U.S. v. Alexander, 448 F.3d 1014, 1016 (8th Cir.2006) (internal citations omitted).

In Alexander, the police detained a driver for “at most” four minutes after informing him that he would receive a warning ticket. The court noted that while the Supreme Court in Caballes was not required to address the question of whether a dog sniff conducted after a traffic stop was unconstitutional, the Supreme Court did note that “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise conducted in a reasonable manner.” Alexander, 448 F.3d at 1017 (quoting Caballes, 543 U.S. at 408, 125 S.Ct. 834). Thus, the Eighth Circuit stated, “It is precisely this reasonableness inquiry that led us to recognize ... that the artificial line marking the end of a traffic stop does not foreclose the momentary extension of the detention for the purpose of conducting a canine sniff of the vehicle’s exterior.” Id.

Here, the trial court found that Appellee’s traffic stop was unreasonably delayed because the officer stopped writing the ticket in order to conduct the walk-around. We disagree. “[T]he mere fact that the officer interrupted his writing of the citation in order to accomplish the drug sniff ... did not unnecessarily extend the traffic stop.” State v. Brown, 691 So.2d 637, 638-39 (Fla. 5th DCA 1997); cf. U.S. v. Boyce, 351 F.3d 1102 (11th Cir. 2003) (holding that driver was unreasonably detained where the officer issued a warning ticket, informed the driver that a dog had been called to conduct a search, waited six minutes to check the driver’s criminal history, then waited another six minutes before conducting the dog sniff). Importantly, nothing in the record here supports a factual finding that the stop was conducted in an unreasonable manner or improperly delayed. The canine officer testified he did not recall even asking for back-up assistance, and there is no evidence he was stalling to allow a cover officer to arrive. Any slight delay was not unreasonable. If any intrusion into Appel-lee’s liberty interests occurred, it was de minimus and, therefore, not unconstitutional. Williams, 565 So.2d at 714.

Because this case presents a question of great public importance, we certify the following question to the Florida Supreme Court in accordance with Article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER, UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, A TRAINED NARCOTICS-DETECTION DOG ALERT OF A VEHICLE PROVIDES PROBABLE CAUSE TO SEARCH THE VEHICLE’S DRIVER WHO IS ALSO THE SOLE OCCUPANT OF THE VEHICLE?

AFFIRMED; QUESTION CERTIFIED.

WOLF, J., concurring with written opinion; PADOVANO, J., concurring in result only with written opinion.

WOLF, J.,

Concurring.

I concur with Judge Thomas’ well-reasoned opinion. I write only to emphasize why I believe the Florida Supreme Court should take jurisdiction of this case. The reasons are:

1. Emerging case law cited in Judge Thomas’ opinion raises doubt about the validity of our prior decision in Williams v. State, 911 So.2d 861 (Fla. 1st DCA 2005), as well as the Second District’s decisions cited therein. Police officers need immediate and definitive statewide guidance as to how to proceed in similar type situations.
2. It is perfectly reasonable that after an alert by a dog, whose accuracy has not been challenged, the police continue to conduct an investigation concerning whether the sole occupant of the vehicle possesses contraband. This investigation may include a dog sniff or search of the person.
3. Not allowing further investigation under these circumstances would provide a method for criminals schooled in the law to avoid detection.

PADOVANO, J.,

concurring in the result only.

I join in the decision to affirm the suppression order because I believe it is correct and not because I think that this court is powerless to reject one of its own precedents, as the majority has evidently concluded. Florida courts have consistently held that a dog alert on a ear does not establish probable cause to search a person in the ear. Nothing in the federal case law cited in the majority opinion suggests that the Florida courts should recede from this rule.

The majority combines one principle from Maryland v. Pringle and another from Illinois v. Caballes to arrive at a conclusion that does not necessarily follow. We know from the holding in Pringle that the discovery of drugs in a car pursuant to a lawful search gives police officers probable cause to arrest the occupants of the car. We know from Caballes that a dog alert on a car establishes probable cause to search the car. The majority extrapolates from these two points to conclude that a dog alert on a car establishes probable cause to search the occupants. With all due respect, I believe this logic is unsound. It treats the probability that drugs may be in the car as if it were the same as the actual discovery of drugs in the car.

An alert on a car by a trained narcotics dog establishes a probability that there are drugs in the car. That probability gives the police officers a right to search the car under the principle established in Caballes. If the probability turns out to be correct and the police find drugs in the car, then, and only then, do they have a right to arrest the occupants of the car under the principle established in Pringle. The Court did not state or even suggest in Pringle, that a dog alert on a car gives the officers the right to skip past all of the intermediate steps (searching the car, finding drugs, arresting the occupants, and then searching the occupants incident to the arrest) and to proceed directly with a warrantless search of the occupants of the car. The justification for the personal search in Pringle was that the officers had found drugs in the car, not that there might have been drugs in the car.

The fallacy in the majority opinion is that it conflates the justification for searching a place with the justification for searching a person. It has never been the law that a police officer may search a person merely because that person is located in a place the officer is otherwise authorized to search. As the Supreme Court explained in Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 838 (1979),

[wjhere the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search ... the premises where the person may happen to be.

(emphasis added) Yet that is precisely what the majority is advocating in the present case. It has assumed that probable cause to search the car necessarily establishes probable cause to search a person in the car. That is simply not the law.

In the present case, by the time the police officers conducted a personal search of the defendant, they knew from her identification that she was not the owner of the car. Nor was there anything else about the incident that would have focused the officers’ suspicion on her in particular. It is true that the defendant was the driver and that the dog alerted somewhere on the driver’s side of the vehicle, but the officer stated that the dog did not alert on her. Moreover, probable cause was not shown by the process of elimination as the majority concludes. The officers searched the defendant before they searched the car.

The majority opinion portrays the issue in this case as one of “great public importance” and asks the Supreme Court to consider it in light of the “far reaching implications” of the Pringle decision. With respect for my colleagues, I think this characterization overstates the issue. It is a simple issue that the district courts have resolved over and over again. Many of the Florida cases holding that a dog alert on a car does not establish probable cause to search an occupant of the car, including our own decision in Williams, came after the United States Supreme Court decision in Pringle.

As recently as last summer, the Fourth District Court of Appeal held in Rehm v. State, 931 So.2d 1071 (Fla. 4th DCA 2006) that a dog alert on a bicycle did not justify a personal search of the rider. The court was not breaking new ground on this point. To the contrary, the court observed that “[i]t is well established that a dog alert to a vehicle, or a seat in a vehicle, does not, in and of itself, provide sufficient probable cause to search the driver or a passenger.” Rehm, 931 So.2d at 1072. The court went on to list numerous Florida cases that stand for this proposition. The court in Rehm had the benefit of the Supreme Court’s opinion in Pringle but evidently concluded, as I have, that it has no bearing on the issue.

The majority quotes Judge Altenbernd’s statement in Perry v. State, 916 So.2d 835, 839 (Fla. 2d DCA 2005) that Pringle may have “effectively overruled our precedent involving circumstances similar to those presented here.” However, this statement was taken out of context. In the Perry opinion, the court was referring to other cases in which police officers had discovered drugs in a car and then attempted to justify a search of an occupant. The question the court was addressing when it made the quoted statement was whether the discovery of drugs invariably justifies the arrest of an occupant of a car, or whether there are circumstances in which it does not. The court was not referring to the long line of Florida cases holding that a dog alert is insufficient to establish probable cause to arrest an occupant of the car. In fact, neither Perry nor Pringle even involved a dog alert. The Pringle decision does not require reconsideration of the point made in these cases and, contrary to the implication in the majority opinion in this case, the court in Perry did not suggest that it does.

The change in the law the majority advocates is one that would have serious consequences if it is ultimately adopted. If the majority is correct, a dog alert on a bus would give police officers probable cause to search every person on the bus. It is true that in the present case, the defendant was the only person in the vehicle, but if Pringle could be applied in the way the majority is proposing, it would not matter how many people were in the vehi-ele. The court held in Pringle that the discovery of drugs in a car justifies the search of all of the occupants of the car. If this principle is extended to encompass dog alerts, then all of the occupants of the car would be subject to a personal search, as well.

Narcotics dogs have such an acute sense of smell that they can detect not only the presence of drugs, but also the fact that drugs have been present in a particular location at some time in the recent past. As the majority has argued, the possibility of residual odors is not a good reason to prevent police officers from searching a vehicle; but I think it is a very good reason to hold that a dog alert does not justify a search of the driver or passengers. It is not difficult to imagine the many situations in which innocent people would be subject to personal searches if a dog alert on a car were enough, standing alone, to justify a search of the occupants.

For instance, an innocent worker driving a fleet vehicle could be subjected to a personal search without any real justification. If a dog were to alert on the vehicle, the worker would be held accountable not only for his or her own conduct, but also for the conduct of many other employees who had access to the vehicle. For the same reason, an innocent vacationer driving a rental car might have to suffer the indignity of a personal search on the roadside because of the illegal activity of a previous renter. And in the same way, a person who is returning a loaner car to the repair shop could be subjected to a personal search in the absence of the slightest suspicion that he or she personally had done anything wrong.

As these examples illustrate, we cannot afford to confuse the justification for searching a vehicle with the justification for searching a person in the vehicle. If police officers have a lawful basis to search a vehicle for drugs and actually find drugs in the vehicle, then they have the right to search the occupants. But to hold that police officers have a right to search the occupants of a vehicle merely because there is a possibility that drugs are located in the vehicle would push the limit of law enforcement authority well beyond that recognized in Pringle.

I join in the decision to affirm, but, unlike my colleagues in the majority, I do not do so reluctantly. The suppression order is correct, as are the legal precedents on which it is based.


text:
    SEARS HOME IMPROVEMENT PRODUCTS, INC., Appellant, v. Samuel D. PORTERFIELD, on behalf of himself and all others similarly situated, Appellee.
    No. 1D06-3157.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.
    John A. DeVault, III and R.H. Farnell, II Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville; Roger L. Long-tin, Stephen L. Agin, and Paula D. Friedman of DLA Piper Rudnick Gray Cary Us, LLP, Chicago, IL, for Appellant.
    Kenneth A. Tomchin, Bryan R. Rendzio, and Jay B. Watson of Tomchin & Odom, P.A., Jacksonville; R. Duane Westrup and Lawrence R. Cagney of Westrup, Klick & Associates, Long Beach, CA; Allan A. Si-gel and Christine C. Choi of the Law Office of Allan A. Sigel, P.C., Los Angeles, CA, for Appellee.
   PER CURIAM.

The Order Granting Plaintiff’s Motion for Class Certification is affirmed. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352 (Fla. 1st DCA 2003) (noting that a trial court’s ruling on class certification is reviewed for an abuse of discretion); see also Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153, 157 (Fla. 4th DCA 2005) (noting that doubts about class certification should be resolved in favor of certification).

AFFIRMED.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    Roger B. THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2451.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Roger B. Thomas, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, for appel-lee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The defendant appeals the trial court’s denial of his Petition for Writ of Habeas Corpus. We affirm.

The defendant was convicted for multiple offenses relating to his armed burglary of a Taco Bell restaurant. He has filed numerous postconviction motions attacking his burglary conviction. The instant habe-as petition is yet another such attack. It is successive, time-barred and meritless. For these reasons, the trial court should have dismissed the habeas corpus petition instead of denying it on the merits. Baker v. State, 878 So.2d 1236, 1245-46 (Fla. 2004). However, in order to save judicial resources, we affirm. Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006).

Affirmed.


text:
    Thomas MINCEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1258.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Russell J. Williams, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Hernandez, 706 So.2d 66 (Fla. 2d DCA 1998).

WARNER, GROSS and TAYLOR, JJ., concur.


author: RAMIREZ, J.

text:
    EVANSTON INSURANCE COMPANY, a foreign corporation, Appellant, v. ADVANCED TRANSPORTATION SOLUTIONS, LLC., a Florida limited liability corporation, Super Nice Cab Corp., a Florida corporation, d/b/a Super Nice Limousine, Robert Spring, individually, and Terry Spring, individually, and Arch Insurance Company, a foreign corporation, Appellees.
    No. 3D06-1290.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Clinton D. Flagg, Miami, and Carol A. Fenello, for appellant.
    Kubicki Draper and Maria Kayanan, Miami, for appellees.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   RAMIREZ, J.

Evanston Insurance Company appeals the denial of its motion for final summary judgment and the entry of summary judgment in favor of appellee Arch Insurance Company, underlying which there is a dispute over the defense of Super Nice Cab Corporation, a mutual insured of Evanston and Arch. Evanston also appeals the denial of its attorney’s fee contribution from Arch for that defense. We affirm because Ev-anston and Arch entered into an agreement that did not reserve either carrier’s right to pursue any remedies, including the contribution for attorney’s fees, against each other.

Robert and Terry Spring filed a personal injury suit against appellee Advanced Transportation Solutions, LLC., and Super Nice Cab Corporation, a subsidiary of Advanced Transportation Solutions, LLC., seeking damages for injuries sustained during Robert Spring’s use of Super Nice’s medical transport services. Super Nice had “Business Auto Coverage” with Arch and “Specified Medical Professional” and “Specified General Liability” coverage with Evanston.

The record reflects that the parties attended mediation on March 14, 2006. At mediation, the Springs settled their claims for a sum of $600,000.00. Arch agreed to pay the Springs $800,000.00, Evanston agreed to pay $225,000.00, and Hartford Insurance Company agreed to pay $75,000.00.

The parties signed a General Release, Hold Harmless and Indemnity Agreement in which they agreed not to litigate against each other. The Release provided as follows:

It is expressly understood and agreed that the acceptance of said consideration is in compromise of disputed claims, and that this General Release is not an admission of liability or negligence on the part of the released parties, but is made for the purposes of terminating the above-referenced dispute and preclude any litigation between the parties.

(emphasis added).

Evanston argues, among other arguments raised on appeal which we decline to address, that it is entitled to recover from Arch the attorney’s fees incurred in the defense of Super Nice. We disagree.

Evanston waived its right to seek any contributions for attorney’s fees from Arch when it entered into the Release Agreement without preserving its right to do so. See Lumbermens Mut. Cas. Co. v. Foremost Ins. Co., 425 So.2d 1158, 1159 (Fla. 3d DCA 1988). In that case, Lumbermens filed a complaint against another carrier, Foremost Insurance Company, seeking to recover the amount it paid in settlement, attorney’s fees, and costs incurred in the settlement of the plaintiffs claim in the original lawsuit. Id. at 1159-60. This court held that Lumbermens had waived its claim through their failure to preserve a cause of action against the other carrier for either indemnity, contribution and/or equitable subrogation through an identifiable agreement, either oral or written. Id. In this case, there is no such agreement that preserves any cause of action, either oral or written. See also Lehman-Eastern Auto Rentals, Inc. v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979)(where this court precluded the entry of summary judgment where the record was unclear as to whether the insurance carriers made any agreement, either oral or written, with respect to the preservation of the liability issue upon contributing to the settlement with the plaintiff).

Furthermore, Evanston had every opportunity to create such an agreement, particularly since Evanston was a participant at mediation during the negotiation and settlement of the Springs’ complaint. If we were to conclude that Evanston indeed is entitled to recover an attorney’s fee contribution from Arch, this would be contrary to the express and unambiguous language of the Release Agreement which unequivocally precludes “any litigation between the parties.” See Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995)(“When a contract is clear and unambiguous, the court is not at liberty to give the contract ‘any meaning beyond that expressed.’ ”).

We thus find no need to address the remaining arguments on appeal. Accordingly, we affirm the trial court’s orders in their entirety.

Affirmed.


author: LaROSE, Judge.

text:
    Robert E. HUDSON, Petitioner, v. Charles C. McGOVERN, III; CC’s Endeavors, Inc., a Florida corporation; and City of Venice, a Florida municipal corporation, Respondents.
    No. 2D06-4570.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2007.

      R.G. (Mack) McCormick, Jr., of Haas, Dutton, Blackburn, Lewis, Guerra & Wai-noris, P.L., Tampa, for Petitioner.
    Robert P. Watrous of Robert P. Wat-rous, Chartered, Sarasota, for Respondents Charles C. McGovern, III and CC’s Endeavors, Inc.
    No appearance for Respondent City of Venice.
   LaROSE, Judge.

Robert Hudson petitions for certiorari review of a nonfinal order denying his motion to stay a lawsuit filed against him by Charles McGovern. Mr. McGovern sued Mr. Hudson for negligence after a fire in Mr. Hudson’s aircraft hangar spread and destroyed Mr. McGovern’s helicopter. We deny the petition but write to address Respondents’ argument that the petition is moot.

Atlantic Preferred Insurance Company (Atlantic) was Mr. Hudson’s insurer at the time of the fire. Atlantic subsequently became insolvent. Accordingly, under the Florida Insurance Guaranty Association Act, Florida Insurance Guaranty Association (FIGA) assumed Atlantic’s obligations to Mr. Hudson. See § 631.57, Fla. Stat. (2006). To give FIGA adequate time to investigate, evaluate, and properly defend a lawsuit against an insured, the statute authorizes a temporary stay of all proceedings that FIGA is obligated to defend.

All proceedings in which the insolvent insurer is a party or is obligated to defend a party in any court or before any quasi-judicial body or administrative board in this state shall be stayed for 6 months, or such additional period from the date the insolvency is adjudicated, by a court of competent jurisdiction to permit proper defense by the association of all pending causes of action as to any covered claims; provided that such stay may be extended for a period of time greater than 6 months upon proper application to a court of competent jurisdiction.

§ 631.67. The trial court properly denied the stay; FIGA did not establish that the claim was covered by Mr. Hudson’s policy with Atlantic, nor did it concede an obligation to defend Mr. Hudson. See Fla. Ins. Guar. Ass’n v. All the Way with Bill Vernay, Inc., 864 So.2d 1126, 1128-30 (Fla. 2d DCA 2003) (explaining insurers’ obligation to defend only covered claims). The trial court did not depart from the essential requirements of law, see Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995), and the petition must be denied.

Respondents urge us to dismiss the petition for mootness because the initial six-month stay has expired. This challenge to our certiorari jurisdiction is unconvincing. Although the statute provides FIGA with an automatic stay of six months for covered claims it is obligated to defend, the statute does not limit a stay to six months. To the contrary, on its face, the statute allows for extensions of the stay. We cannot agree that the petition is moot.

Petition denied.

CANADY, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    Winston St. Clair NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1877.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Winston St. Clair Nelson, in proper person.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ. .
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Robert SHULER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1977.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Robert Shuler, Jr., in proper person.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: ROTHENBERG, Judge.

text:
    Victor X. RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2600.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Victor X. Rivera, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Victor Rivera, who is currently serving a three-year sentence after admitting to several violations of his probation in the instant case, appeals the trial court’s summary denial of a petition for writ of habeas corpus wherein the defendant claims he was not given credit for the time he served prior to entering his plea regarding the probation violation, and that if given the appropriate credit for time served, he would be entitled to immediate release. As the trial court’s summary denial is devoid of any record attachments, we are unable to determine the validity of the defendant’s claims. The defendant alleges that he only received thirty-seven days credit for time served prior to his plea to the probation violation, and alleges that he served: twenty days in juvenile custody prior to being transferred to the county jail for prosecution as an adult; fifty-seven days in the county jail from August 17, 2000, to October 15, 2000; 204 days before entering boot camp; and several other stays in the county jail, including time spent in the jail drug treatment program. If what the defendant alleges is true, not only would he be entitled to substantially more credit for time served, he may be nearing the completion of his sentence, or in the worst case scenario be serving time in excess of the sentence imposed.

We therefore reverse, appoint the public defender’s office to assist the defendant in pursuing his claim in the trial court, and order the trial court to expedite review in light of this decision.

Reversed, public defender appointed, and remanded for an expedited review upon remand.


text:
    Eddie EDMONDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4358.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Carey Haughwout, Public Defender, James W. Mclntire, Assistant Public Defender, and Brian R. Link, Certified Legal Intern, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 919 So.2d 645 (Fla. 4th DCA 2006).

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    David Allen GAUTHIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4443.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

David Allen Gauthier appeals from an order revoking his probation. Mr. Gauthier contends that the trial court erred by concluding that he violated the terms of his probation by changing his residence without his probation officer’s knowledge and approval. We agree and reverse.

Our standard of review for a violation of probation determination is abuse of discretion. See Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974); Stanley v. State, 922 So.2d 411 (Fla. 5th DCA 2006). A violation of probation must be both willful and substantial before a defendant’s probation may be revoked. See State v. Carter, 835 So.2d 259 (Fla.2002); Robinson v. State, 907 So.2d 1284, 1286 (Fla. 2d DCA 2005); King v. State, 817 So.2d 935, 937 (Fla. 5th DCA 2002). The State bears the burden of proving a willful and substantial violation by competent evidence. See Stewart v. State, 926 So.2d 413, 414 (Fla. 1st DCA 2006); Robinson, 907 So.2d at 1286.

In this case, there was no competent, substantial evidence that Mr. Gauthier changed his residence. At best, hearsay testimony from the probation officer showed that Mr. Gauthier spent thirteen nights at his girlfriend’s home. However, that evidence was contradicted by direct testimony from Mr. Gauthier’s landlady who testified that Mr. Gauthier rented a room from her, kept his possessions there, spent most nights there, paid rent and came by almost every day, even when he did not sleep there. Because Mr. Gauthier did not have a curfew, the hearsay testimony from the probation officer alone was insufficient to support a finding that he had changed his approved residence without permission. See Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004) (explaining that although hearsay evidence is admissible at revocation hearing, defendant’s probation or community control cannot be revoked solely on basis of hearsay).

Accordingly, we reverse the order revoking Mr. Gauthier’s probation and remand this matter for further proceedings consistent herewith.

REVERSED AND REMANDED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Shannon Edward EWELL, et al., Respondent.
    No. 5D06-3725.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Charles D. Peters, Orlando, for Petitioner.
    Robert R. Berry and Gregory W. Eisen-menger of Eisenmenger, Berry & Peters, P.A., Viera, for Respondent.
   PER CURIAM.

Petitioner, the Department of Children and Family Services, (“Department”), seeks a writ of certiorari quashing the trial court’s order committing Respondent, Shannon Edward Ewell, to the Florida State Hospital for treatment to restore him to competency. The only medical expert who evaluated Ewell opined that Ewell ydll not be able to reach competency through any known therapeutic program. Section 916.13(l)(c), Florida Statutes (2006), requires that before a defendant is committed to the Department for competency restoration, there must be “clear and convincing evidence that ... [t]here is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.” Because there was no evidence presented below to support Ewell’s commitment pursuant to section 916.13(l)(c), we find the trial court departed from the essential requirements of the law by ordering Ewell’s commitment for competency restoration. Eg., M.H. v. State, 901 So.2d 197, 200 (Fla. 4th DCA 2005) (recognizing that “[wjhere competent, substantial evidence does not support the trial court’s finding regarding competency or involuntary commitment, the trial court has departed from the essential requirements of the law”). Therefore, we grant the petition, quash the order below, and remand this matter to the circuit court for further proceedings.

CERTIORARI GRANTED; ORDER QUASHED; REMANDED.

SAWAYA, ORFINGER and LAWSON, concur.

      . Ewell is charged with one count of burglary and one count of petit theft.


text:
    George FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4176.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Mark D. Rodriguez, Inverness, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

George Fletcher appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s decision because the motion was not made under oath as required. See Fla. R.Crim. P. 3.850(c). Thus, we affirm without prejudice for Fletcher to file a new, properly sworn motion that contains factual allegations. See Gonzalez v. State, 869 So.2d 775 (Fla. 5th DCA 2004); Creel v. State, 769 So.2d 450 (Fla. 4th DCA 2000); Linton v. State, 721 So.2d 743 (Fla. 5th DCA 1998); Van Aernam v. State, 715 So.2d 1143 (Fla. 5th DCA 1998); Saba v. State, 677 So.2d 41 (Fla. 5th DCA 1996).

AFFIRMED.

THOMPSON, TORPY and EVANDER, JJ., concur.


text:
    Antonious JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4025.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals his convictions for (1) improper exhibition of a dangerous weapon or firearm, and (2) aggravated battery while in possession of a firearm. On appeal appellant makes three arguments for reversal. First, appellant argues that the trial court erred in denying his motion for new trial, because the jury’s verdicts were legally inconsistent. Second, appellant claims that the trial court abused its discretion in denying appellant’s motion for a mistrial, where some testimony supplied by the state had the effect of improperly commenting on appellant’s right to remain silent and/or improperly shifting the burden of proof onto appellant. Third, appellant argues that the trial court abused its discretion in denying his motion for a mistrial, where, on two separate occasions during direct examination, the state’s witness improperly provided inadmissible testimony of appellant’s involvement in collateral crimes, wrongs, or acts.

We find no merit in appellant’s first point on appeal; therefore, we affirm as to that point without discussion. However, we do find merit in appellant’s second argument; accordingly, appellant’s convictions and sentences are reversed and this case is remanded for a new trial. In light of our decision to reverse and remand for a new trial, appellant’s third argument is rendered moot and we decline to address the merits of that issue.

Regarding appellant’s second argument, Officer Gajewski’s testimony is “fairly susceptible” of being understood by the jury as a comment on appellant’s right to remain silent. See State v. Kinchen, 490 So.2d 21 (Fla.1985) (upholding the “fairly susceptible” test adopted in David v. State, 369 So.2d 943 (Fla.1979)). Moreover, Officer Gajewski’s testimony served to improperly shift the burden of proof onto appellant. Jackson v. State, 575 So.2d 181, 188 (Fla.1991) (holding “the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant had the burden of introducing evidence”). Because the state has failed to prove beyond a reasonable doubt that these errors did not contribute to the verdict, we reverse and remand for a new trial.

REVERSED and REMANDED for new trial.

HAWKES, THOMAS, and ROBERTS, JJ., concur.

      . In addition to returning the guilty verdicts above, the jury also returned a verdict of not guilty on a charge of discharging a firearm in public.

        . "The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” See State v. DiGuilio, 491 So.2d 1129, 1138 (1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).


text:
    Darius WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5763.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Thomas J. Cassidy, III, Panama City, for Petitioner.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about June 16, 2006, in Bay County Circuit Court case number 04-3073CFMA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent him on appeal.

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    David ECHEVERRIA, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-6161.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals a circuit court order denying his motion to withdraw plea, and a separate circuit court order denying his motion to correct illegal sentence, which was filed pursuant to rule 3.800(b)(2). Appellant presents three issues on appeal. First, appellant argues that the trial court erred in denying appellant’s timely filed motion to withdraw plea, without appointing appellant conflict-free counsel to assist him in his claim. Second, appellant argues that the trial court erred in sentencing appellant in excess of the plea agreement without affirmatively offering appellant the opportunity to withdraw his plea. Third, appellant argues that the trial court erred in denying his motion to withdraw plea and his 3.800(b)(2) motion, where each motion alleged that trial counsel was ineffective for failing to advise appellant of, or raise before the court, legally meritorious statute of limitations defenses.

We agree with appellant’s second argument on appeal. Therefore, appellant’s sentence is reversed and remanded for re-sentencing with instructions. Because we are reversing on argument two, appellant’s first argument is rendered moot. Accordingly, the merits of this argument will not be addressed. We affirm as to appellant’s third argument. Appellant failed to adequately raise this argument in his motion to withdraw plea, and this argument is not cognizable in a 3.800(b)(2) motion.

FACTS

In the proceeding below, appellant faced a number of charges in Escambia County. On September 6, 2005, appellant entered a plea of nolo contendere to all of the charges. On December 2, 2005, the trial court adjudicated the appellant guilty of all charges. The trial court sentenced appellant to five years imprisonment as to each of the burglary charges, to run concurrent. This was to be followed by five years of probation, concurrent on each count, but consecutive to the term in state prison. In Case Nos. 05-1495 and 05-1496, as to Count II, the appellant was placed on probation for a term of one year, concurrent with the five year probation. In the other cases, as to Count II, the appellant was placed on six months of probation concurrent with the other probations.

Subsequent to sentencing, appellant filed a motion to withdraw plea. Appellant argued that the terms of his plea agreement had been violated by his sentence. Appellant’s plea agreement contained the following language:

Plea straight to Judge with a cap of 6 years state prison as an HFO (sic.) plus restitution (to be determined — court retains jurisdiction). $390 court costs & $40 pd (sic.) fee reduced to a lien — to cover all. Sentencing hearing to argue mitigation.

(Emphasis added). Appellant’ motion to withdraw plea states,

the terms of the plea agreement were violated because: we agreed to a 6, year cap and I was sentenced to 5 yrs state prison and 5 years probation. That’s a total of 10 year sentence which was not agreed upon. My attorney told me that they could not go over the cap. I feel [trial counsel] failed to explain the proper process. At no time was there a defense or and he failed to file certain motions to dismiss my charges after my speedy trial date. I signed a 6 year plea contract and was told verbally as well. Please assist me and grant me this motion. Thank you for your time and consideration in this matter.

On January 27, 2006, the trial court denied appellant’s motion to withdraw plea.

After filing a Notice of Appeal, but prior to filing the initial appellate brief, appellant filed a 3.800(b)(2) motion to correct illegal sentence. This motion argued appellant’s second-degree petit theft convictions, in cases 05-1486, 05-1487, 05-1488, 05-1489, 05-1490, 05-1491, 05-1492, OS-1494, 05-1495 (three counts), and 05-1496, were barred by the statute of limitations, should be vacated, and that appellant should be re-sentenced. The trial court summarily denied this motion, holding that appellant had waived the statute of limitations defense when he entered his pleas of nolo contendere.

VIOLATION OF THE PLEA AGREEMENT

The State rightfully concedes that, in this case, the trial court erred in sentencing appellant to five years of imprisonment followed by five years of probation. In addressing a similar situation, this Court has stated:

In determining the voluntariness of a plea, the trial judge is obligated to advise the defendant of the complete terms of any plea agreement, including any obligations the defendant will incur. Fla. R.Crim. P. 8.172(c)(7). Among other things, the trial court must apprise the defendant that the period of incarceration specified in the plea agreement will be followed by a period of probation, if such is the court’s intent. Failure to do so may require remand for resentencing with the terms of the plea agreement, or to afford the option of withdrawing the plea.

Eggers v. State, 624 So.2d 336, 337-38 (Fla. 1st DCA 1993) (emphasis added). In the instant case, the record clearly shows that appellant was never informed that a period of probation would follow the six year period of incarceration specified by the plea agreement. Moreover, appellant was not afforded the opportunity to withdraw his plea once the trial court determined that it would impose a period of probation in excess of the term of supervision established by the plea agreement.

In Jefferson v. State, 515 So.2d 407 (Fla. 1st DCA 1987), this Court was faced with a situation where an appellant “was never informed that an additional probationary period could be added to his negotiated term of incarceration, [or] ... given the opportunity to withdraw his plea once it became apparent that the trial court intended to impose a total term of ... supervision [in excess of his negotiated term].” This Court held that because the appellant was not properly apprised of the significance and consequences of his guilty plea, he should be remanded for re-sentencing. See Jefferson, 515 So.2d at 408 (citing State v. Green, 421 So.2d 508 (Fla.1982), and Harvey v. State, 399 So.2d 1134 (Fla. 1st DCA 1981)). This Court further ordered that, on remand, “the trial court shall either sentence the appellant to the agreed upon sentence” ... “or allow the appellant the option of withdrawing his plea.” Jefferson, 515 So.2d at 408.

In accordance with the above cited case law, this case is remanded for re-sentencing. On remand, the trial court may sentence appellant to a term of imprisonment, probation, or a combination of both, so long as the total period of supervision does not exceed the six-year cap established by the plea agreement. Should the trial court determine that it cannot appropriately sentence appellant within the terms of the plea agreement, then appellant should be afforded the opportunity to withdraw his plea.

STATUTE OF LIMITATIONS/INEFFECTIVE ASSISTANCE CLAIM

Assuming, without deciding, that the second-degree petit theft charges filed against appellant were barred by the statute of limitations, appellant’s argument three claims must still fail. Appellant’s claim fails, because he did not properly preserve the matter for appellate review. Appellant claims to have preserved this argument by presenting it in his 3.800(b)(2) motion to correct illegal sentence. Alternatively, appellant argues that he preserved this issue in his motion to withdraw plea. Unfortunately for appellant, neither of his asserted positions have merit.

Respecting appellant’s 3.800(b)(2) motion, it must be stated that such a motion is not the correct procedural vehicle for attacking the merits of an underlying criminal conviction. Although motions to correct an illegal sentence are recognized pursuant to both Florida Rule of Criminal Procedure 3.800 and 3.850, Yates v. State, 556 So.2d 501, 502 (Fla. 1st DCA 1990), when the motion attacks the conviction it must be brought under rule 3.850. Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992) (citing Ferenc v. State, 563 So.2d 707 (Fla. 1st DCA 1990); Gandy v. State, 560 So.2d 1363, 1364 (Fla. 1st DCA 1990); State v. Spella, 567 So.2d 1051, 1052 (Fla. 5th DCA 1990)). Appellant’s claim that counsel was ineffective for not raising the statute of limitations defense is a direct attack on the validity of his second-degree petit theft convictions. Accordingly, appellant’s claim is not cognizable in a 3.800(b)(2), and the trial court acted properly in denying the motion.

Finally, regarding appellant’s motion to withdraw plea, a review of the language of his motion, supra, shows that the statute of limitations argument was not presented in his motion to withdraw plea. It is true that appellant generally alleged “at no time was there a defense,” but the only defense he refers to is counsel’s failure to file a speedy trial motion to dismiss. The trial court cannot be expected to inventory the ether for every conceivable defense, so as to determine if one of them applies to appellant. Without presentation of a more specific argument, appellant’s claim cannot be considered preserved.

Section 924.051(l)(b), Florida Statutes, indicates that an argument is “preserved” when it “was timely raised before, and ruled on by, the trial court, and ... was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” (Emphasis added). It cannot be said that appellant’s argument was sufficiently precise, so as to appraise the trial court of the argument appellant currently presents on appeal. That is to say, that it was sufficiently precise so as to inform the trial court that appellant’s counsel was ineffective for failing to move for dismissal of the second-degree petit theft charges, based on the fact that these charges were barred by the statute of limitations. Because this issue was not properly preserved, we affirm the trial court’s denial of appellant’s motion to withdraw plea.

CONCLUSION

Because we find merit in appellant’s second argument, we reverse and remand with instructions. Our decision to reverse and remand pursuant to argument two renders appellant’s first argument moot. We find that appellant’s third argument is not properly preserved; therefore, we do not address its merits. On remand, the trial court will have two options. The trial court may sentence appellant to a term of prison and/or probation not to exceed the six-year cap contemplated by the plea agreement. Alternatively, if the trial court refuses to sentence appellant within the dictates of the plea agreement, then it must provide appellant with the opportunity to withdraw his plea.

REVERSED and REMANDED for re-sentencing, with instructions.

HAWKES, THOMAS, and ROBERTS, JJ., concur.

      . Case No. 05-1486, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on March 10, 2003; Case No. 05-1487, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on April 20, 2003; Case No. 05-1488, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 2, 2003; Case No. 05-1489, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 6, 2003; Case No. 05-1490, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 6, 2003; Case No. 05-1491, information filed April 28, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 22, 2003; Case No. 05-1492, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on June 8, 2003; Case No. 05-1493, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 13, 2003; Case No. OS-1494, information filed April 29, 2005, burglary of an unoccupied conveyance and petit theft, which were alleged to have occurred on May 16, 2003; Case No. 05-1495, information filed April 29, 2005, fraudulent use of a credit card and four counts of petit theft, which were alleged to have occurred on or about May 22, or May 23, 2003; Case No. OS-1496 (charges from Case No. 05-1497 consolidated), information filed April 29, 2005, fraudulent use of a credit card and two counts of petit theft, which were alleged to have occurred on May 13, 2003.