author: PER CURIAM. THOMAS, J.,

text:
    Naji HADDAD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2469.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    Rehearing Denied April 28, 2008.

      Robert Augustus Harper and Robert Augustus Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief. We affirm.

Background

In 1976, appellant moved with his parents to the United States to escape a civil war that had erupted in Lebanon. For 29 consecutive years, appellant had not left the United States and had always maintained the status of a permanent legal resident. While residing in the United States, appellant married and fathered three children.

In December 1981, appellant entered a plea of guilty to one count of possession of one tablet of Methaqualone, a controlled substance. Appellant was sentenced to five years on probation for this offense. Appellant completed his term of probation without committing any infractions. On February 22, 2005, appellant crossed the Canadian border in order to view the Canadian side of Niagara Falls. When appellant attempted to reenter the United States he was detained at the border and informed that he was subject to deportation due to his 1981 conviction.

On May 5, 2005, appellant filed a motion for postconviction relief asserting that his previously entered plea was involuntarily entered because he did not know the deportation consequences of the plea. On July 6, 2005, an evidentiary hearing was conducted and the trial court granted appellant’s request for relief.

The State of Florida appealed and this court reversed. State v. Haddad, 950 So.2d 434 (Fla. 1st DCA 2007). We held: “For pre-1989 cases, a plea may be attacked only if the defendant received positive misadvice of counsel regarding' immigration consequences.” Id. at 437 (emphasis added). We certified the following question to be of great public importance to the Supreme Court:

WHETHER A DEFENDANT IS ENTITLED TO VACATE HIS 1981 PLEA ON ACCOUNT OF A LACK OF AWARENESS OF DEPORTATION CONSEQUENCES, WHERE AT THE TIME OF HIS PLEA THE CONVICTION HAD NO DEPORTATION CONSEQUENCES BUT, AS A RESULT OF CHANGES IN FEDERAL LAW IN 1996, THE 1981 CONVICTION WAS MADE A MANDATORY BASIS FOR DEPORTATION.

Id. The Supreme Court of Florida declined to accept jurisdiction. Haddad v. State, 954 So.2d 1155 (Fla.2007) (table). After the supreme court declined review, mandate for this court’s opinion issued on March 29, 2007. Upon the issuance of mandate, the trial court entered its order summarily denying the motion for postcon-viction relief on April 11, 2007.

Analysis

The appellant asserts that he was entitled to notice prior to the trial court summarily denying his motion on remand. The appellant asserts that, given notice, he would have amended his motion to allege that he did, in fact, receive positive misad-vice regarding deportation consequences of his plea.

Contrary to appellant’s assertions, he was not entitled to any notice prior to the trial court’s summary denial of his motion on remand. Florida Rule of Criminal Procedure 3.850(d) specifically contemplates the summary denial of postconviction motions. Furthermore, after this court reversed, and the supreme court declined 'review, the trial court was left with no option but to deny the motion pursuant to this court’s opinion and mandate. Cf. Rodriguez v. State, 924 So.2d 985 (Fla. 2d DCA 2006) (“In carrying out an appellate court’s mandate, the trial court’s role is purely ministerial.”); Milton v. Keith, 503 So.2d 1312 (Fla. 3d DCA 1987) (holding that upon issuance of mandate, the trial court must obey, implement or effectuate the appellate court’s order or decree). The appellant’s assertion that the denial of his postconviction motion is in the nature of a final summary judgment, and therefore governed by Florida Rule of Civil Procedure 1.510(c), is erroneous. Motions for postconviction relief are governed by rule 3.850, and pursuant to that rule, there is no notice requirement when a trial court summarily denies a motion.

Conclusion

Because appellant was not entitled to any notice prior to the trial court’s denial of his motion for postconviction relief, and the trial court was constrained to deny relief, we affirm the trial court’s order.

AFFIRMED.

POLSTON and HAWKES, JJ., concur; THOMAS, J. concurs with opinion.

THOMAS, J.,

concurring.

I concur with the panel’s decision affirming the denial of Appellant’s motion for postconviction relief. I write to acknowledge that Appellant’s only remedy in this case lies with the executive branch through the exercise of its clemency power. See Art. IV, sect. 8(a), Fla. Const. (2007); see also Art. II, sect. 3, Fla. Const. (2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    McCONNAUGHHAY, DUFFY, COONROD, POPE & WEAVER, P.A., Petitioner, v. LUTHERAN SERVICES, FLORIDA, INC., Respondent.
    No. 1D07-6486.
    District Court of Appeal of Florida, First District.
    March 18, 2008.
    Mary L. Wakeman, Victoria E. Heuler, and Ashley Richardson of McConnaugh-hay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Petitioner.
    Lois B. Lepp of Lois B. Lepp, P.A., Pensacola; James C. Taylor of Taylor & Van Matre, P.A., Pensacola, for Respondent.
   PER CURIAM.

Petitioner, a law firm seeking to recover fees and costs in a guardianship matter pursuant to section 744.108, Florida Statutes, seeks prohibition relief following the denial of its motion to disqualify the trial judge. Having carefully considered the record and the arguments of the parties, we conclude that petitioner had standing to seek disqualification, and that its motion seeking that relief, which was filed contemporaneously with its petition for fees and costs, was timely. We likewise conclude that taking the facts alleged therein as true, the motion for disqualification was legally sufficient. Accordingly, the petition for writ of prohibition is granted.

PETITION GRANTED.

BROWNING, C.J., VAN NORTWICK and ROBERTS, JJ., concur.


author: CORTINAS, J.

text:
    The STATE of Florida, Appellant, v. Eudenis TRIANA, Appellee.
    No. 3D07-1388.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.

      Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.
    Gonzalez & Alvarez and Silvia M. Gonzalez, for appellee.

      Before CORTIÑAS and ROTHENBERG JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

The State of Florida (“State”) appeals an order granting a motion to suppress filed by the defendant, Eudenis Triana (“Triana”). The trial court found that Mr. Triana was illegally seized and, as such, a subsequent consent to search by Triana was involuntary, resulting in the suppression of certain evidence.

This case implicates two different and legally distinct exceptions to the Constitutional requirement that an arrest or search must be based on probable cause and executed pursuant to a warrant. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The first exception which applies is the consensual encounter of police with Mr. Triana and the second is the consent search given by Mr. Triana. Each is viewed under the “totality of the circumstances.” See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We first examine the facts surrounding the initial questioning of Mr. Triana. Detective Nicholas Delguitiz, who worked for thirteen years at the Miami-Dade narcotics bureau, had received information from a confidential source telling him of marijuana growing at Triana’s residence. The detective further testified that, although the informant did not work for the Miami-Dade police department, he personally knew the identity of the informant, and had worked with him in the past. Furthermore, the detective stated that he had previously received information from this informant and that the information had proven to be rehable.

Detective Delguitiz and three officers arrived at the outside gate of Mr. Triana’s 1½ to 2-acre residence at approximately 9 p.m. on July 26, 2006. The gate was closed and there was nobody outside the residence at that time. Another officer, Sergeant Albert Falcon, stated that Mr. Triana’s residence was gated by either a hedge or a wooden fence that was six feet high. One of the officers momentarily blew the emergency horn on his police car, presumably to announce their presence at the residence. As a result, Triana’s girlfriend exited the residence and met the officers at the locked gate. The officers advised her that they had received information that marijuana was being grown at this residence and requested consent to search. The girlfriend stated that she “lived there with her husband and she would ask his permission or talk with him about it.” Moments later, Mr. Triana met the officers at the gate. Detective Delgui-tiz first ascertained whether or not Triana spoke English and learned he did not. Sergeant Falcon, who was fluent in Spanish, introduced himself to Mr. Triana, determined that Triana was the owner of the residence, and explained to him that the police had received a complaint that marijuana was being grown in the residence. Falcon asked for consent to search the residence and, in response, Triana agreed and opened the gate. During the suppression hearing, Falcon described the conversation with Triana as “casual.” Prior to receiving consent and throughout the initial questioning, the officers were not on Triana’s property. One of the detectives testified that they “would have just left” if the defendant had refused to consent.

We next detail the facts concerning the consent search inside the residence. Accompanied by Triana, three officers walked inside the house. Falcon testified that, as they walked through the main area of the house, he observed there was another building in the back of the property and asked Triana for consent to search the back building. Triana stated “what is back there is mine.” Only a few minutes elapsed between the time the officers entered Triana’s home and the time they observed the building in the back. Falcon then took out a written consent to search form, which was in Spanish, and read it to Triana. Mr. Triana signed the written consent form and took the officers to the building in the back of the property. Falcon stated that the building was divided in two parts, the front was a room with a kitchenette and the back was a hydroponics lab for growing marijuana. Police seized 103 pounds of marijuana at Triana’s residence.

With respect to the initial meeting with Mr. Triana, the trial court held that the officers “effectively seized Mr. Triana” and that, at the time of encounter, the detectives did not have reasonable suspicion that Mr. Triana had committed a crime. Based on this holding, the trial court went on to find that “Triana’s consent to search given after this illegal detention was involuntary.”

We employ a mixed standard of review in considering the trial court’s ruling on Mr. Triana’s motion to suppress. The trial court’s determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

The Florida Supreme Court has explained that there are essentially three levels of encounters an individual can have with the police:

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. § 901.151 Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
... [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); § 901.15 Fla. Stat. (1991).

Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citation omitted).

On appeal, the State contends that the initial meeting between the officers and Mr. Triana was a consensual encounter and not an investigatory stop or an arrest. Because Mr. Triana had a reasonable expectation of privacy in his home, the question is whether he voluntarily opened the door or, alternatively, whether there were coercive circumstances that turned an ordinary consensual encounter into one requiring objective suspicion. See United States v. Cormier, 220 F.3d 1103 (9th Cir. 2000).

As a preliminary matter, we note that no level of suspicion was required before the officers arrived at the gate of Mr. Triana’s residence and questioned him, or anyone else who happened to meet them at the gate. This is commonly referred to as a “knock and talk,” which has been recognized as a legitimate investigative procedure so long as the encounter does not evolve into a constructive entry. United States v. Grayer, 232 Fed.Appx. 446 (6th Cir.2007); United States v. Thomas, 430 F.3d 274, 277 (6th Cir.2005) (“Consensual encounters do not lose their propriety, moreover, merely because they take place at the entrance of a citizen’s home.”); People v. Rivera, 41 Cal.4th 304, 308, 59 Cal.Rptr.3d 473, 159 P.3d 60 (Cal.2007) (“Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search.”); see Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005). As such, a knock on the door and subsequent discussion is a purely consensual encounter, which officers may initiate without any objective level of suspicion. Thomas, 430 F.3d at 277; see Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir.2005) (“A purely consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment.”).

The fact that a consensual encounter takes place at the entrance of an individual’s home does not call into question or in any way lessen the propriety of a consensual encounter. See United States v. Chambers, 395 F.3d 563, 568 n. 2 (6th Cir.2005); Cormier, 220 F.3d at 1109 (holding that “no suspicion needed to be shown in order to justify the ‘knock and talk’ ”). In this case, although not disposi-tive, the location of the interview is a factor that supports a conclusion that the defendant was not in custody. Here, it is undisputed that the officers remained outside of Triana’s property during their initial questioning. Moreover, an interview with a suspect in his own home is not ordinarily regarded as a custodial interrogation. See Duddles v. State, 845 So.2d 939 (Fla. 5th DCA 2003). Judge Padovano has correctly observed that a suspect who is questioned in his own home is not likely to have a sense that he is being detained, as might be the case if the suspect had been stopped on a highway or taken to an interrogation room at the police station. Evans v. State, 911 So.2d 796 (Fla. 1st DCA 2005). Similarly, in Taylor v. State, 855 So.2d 1 (Fla.2003), the Supreme Court of Florida was confronted with a consensual encounter at an individual's home and found that under the “totality of the circumstances ... a reasonable person in Taylor’s position would have felt free to leave or terminate the encounter.” Id. at 15.

Triana, as well as the trial court, relied on Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004), for the proposition that Mr. Triana’s meeting with police constituted a seizure. However, we find Miller to be entirely distinguishable. For example, in Miller, the Fifth District found the “most significant factor” to be the words and actions of the officers in dissuading the defendant from leaving the residence by stating that there was a “need” that defendant remain there and retaining defendant’s identification throughout the questioning. Id. at 588; see also Kutzorik v. State, 891 So.2d 645 (Fla. 2d DCA 2005) (involving repeated requests for consent to search small mobile home while the resident was in an emotional state). These circumstances are entirely absent in Tria-na’s case.

Nevertheless, a consensual encounter at the doorstep may evolve into a “constructive entry” when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home. Thomas, 430 F.3d at 277. Constructive entry has been found when a suspect emerged from a house “in response to coercive police conduct.” United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir.1984). Coercive police conduct occurs where there is “such a show of authority that [the] Defendant reasonably believed he had no choice but to comply.” United States v. Saari, 272 F.3d 804, 809 (6th Cir.2001).

The presence of police officers alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference of submission to police authority. State v. Swank, 399 So.2d 510, 512 (Fla. 4th DCA 1981) (citing United States v. Griffin, 530 F.2d 739 (7th Cir.1976); United States v. Marshall, 452 F.Supp. 1282 (S.D.Fla.1978), rev’d on other grounds, 609 F.2d 152 (5th Cir.1980)). The difference between a consensual encounter and a “constructive entry” frequently depends on the show of force exhibited by the police. Thomas, 430 F.3d at 277. As such, drawn weapons, coercive actions and demands, or raised voices by the police have been found to result in non-consensual encounters. Saari, 272 F.3d at 808 (involving four officers who “positioned themselves in front of the only exit from [defendant's apartment with their guns drawn ... knocked forcefully on the door and announced that they were the police”); Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir.1997) (involving a SWAT team who surrounded the house, pointed machine guns at the windows, and ordered the occupants out), abrogated on other grounds, Curley v. Klem, 499 F.3d 199 (3d Cir.2007); United States v. Maez, 872 F.2d 1444, 1449-50 (10th Cir.1989) (involving FBI agents and a SWAT team that surrounded a trailer with guns pointed at the home and addressed the occupants over loudspeakers); United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir.1986) (involving officers who surrounded the front of the defendant’s apartment, with weapons drawn, and yelled, “FBI. Open the door”); United States v. AlAzzawy, 784 F.2d 890, 893 (9th Cir.1985) (involving police who had completely surrounded a trailer with their weapons drawn and ordered the occupant through a bullhorn to leave the trailer); Morgan, 743 F.2d at 1161 (involving ten officers who surrounded the house, blocked the suspect’s car, “flooded the house with spotlights and summoned Morgan from his mother’s home with the blaring call of a bullhorn”).

The fact that four officers were present during the encounter with Mr. Triana does not necessarily indicate coercion, especially where, as here, we are dealing with a narcotics investigation pertaining to a 1 ⅞ to 2-acre residence. See Thomas, 430 F.3d at 276 (presence of four officers, without more, did not show police entered the home or defendant exited the house as a result of physical force or any other conspicuous show of authority by the police); U.S. v. Pena, 143 F.3d 1363 (10th Cir.1998) (presence of four officers, including three that were armed, who came to defendant’s motel room found not to be coercive where none of the officers unholstered a firearm and remained outside the motel room until Pena gave them permission to enter); United States v. Durades, 929 F.2d 1160, 1166-67 (7th Cir.1991) (presence of three officers, who acted professionally at all times, in one apartment with three occupants was not coercive); Swank, 399 So.2d at 512 (presence of two officers at defendants’ hotel room alone, absent evidence of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference of submission to police authority); People v. Gillam, 479 Mich. 253, 734 N.W.2d 585 (2007) (presence of three police officers conducting a narcotics investigation did not constitute coercion). Triana does not assert, and the record does not support a conclusion, that the police officers conducted themselves in an unprofessional manner. Accordingly, the presence of four officers outside the gate of a two-acre property, none of whom drew any weapons or made coercive demands of Mr. Triana, does not render the encounter non-consensual.

Nor does the fact that the officers’ meeting with Mr. Triana occurred at 9 p.m. transform an otherwise consensual encounter into a seizure. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.”); People v. Tweedy, 126 P.3d 303 (Colo.Ct.App.2005) (presence of three police officers at 5:10 a.m. outside defendant’s hotel room was not coercive where police sought permission to enter and search room in a conversational voice).

A review of the “totality of the circumstances” reveals that the officers’ conduct did not rise to the level of a constructive entry. In doing this, we do not invade the fact-finding province of the trial court by resolving conflicts in testimony. In fact, there was no conflicting testimony by Mr. Triana or anyone else, and the trial court did not disbelieve any of the officers. The circumstances of this case show that Triana’s girlfriend declined the officers’ request for consent by stating “she would ask his [Triana’s] permission or talk with him about it.” Triana’s encounter with the officers took place at the gate of his residence, outside of the property, where Mr. Triana responded to a simple request by the officers for consent to search his home. The police officers never displayed any weapons during the entire encounter, further illustrating that they did not employ physical force or official authority to gain entry into the residence. They never spoke to Triana in an authoritative tone or in any way lead him to believe that he had no choice but to comply with their request for consent to search. Furthermore, Tria-na did not present any evidence that he ever attempted to terminate the encounter with the officers or that he was not entitled to do so. Under these facts, there is no basis for concluding that a reasonable person in Mr. Triana’s situation would believe that he was either under arrest or otherwise compelled to leave the house. As such, no “constructive entry” occurred. See Cormier, 220 F.3d 1103.

Because we find that the initial entry into Mr. Triana’s residence occurred through a consensual encounter with police followed by consent to enter the residence, we conclude that Triana was not illegally detained when he gave consent to search his residence and the outside building. Accordingly, we reverse the suppression order and remand for proceedings consistent with this opinion.

Reversed and remanded.


author: CORTIÑAS, J.

text:
    WRJ DEVELOPMENT, INC., Appellant, v. NORTH RING LIMITED, Appellee.
    Nos. 3D06-2468, 3D06-2541.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Benitez & Associates and Leo Benitez and Lizette Benitez, for appellant.
    Adorno & Yoss and Jack R. Reiter and Jason S. Miller, Miami, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   CORTIÑAS, J.

WRJ Development, Inc. (“WRJ”) appeals both the circuit court’s final judgment in favor of North Ring Limited (“North Ring”) and its denial of WRJ’s motion to vacate the final judgment and for dismissal for failure to pay documentary stamps (“Motion to Vacate”).

This appeal relates to property known as Lilandia, originally purchased by Rafael Ros through an entity known as Poinciana Lakes Development II (“Poinciana”). The Lilandia purchase was financed through a $1.3 million loan from Colonial Bank plus a $700,000 loan from North Ring, a lending company owned by Jaime Ardila (“Ardi-la”). Poinciana faced financial instability and in an attempt to protect North Ring’s position, Ardila purchased Colonial Bank’s note and mortgage through another of his companies, Southwest Florida Land (“Southwest”). Subsequently, Southwest initiated a foreclosure action on its note and mortgage. In June, 2000, North Ring commenced an action against Poinciana to enforce the Note and a final judgment was entered in North Ring’s favor.

While this action was pending, Poinciana sold the Lilandia property to WRJ, whose principal owner is J.C. Alvarez. No written purchase and sale agreement was prepared and the sale constituted substantially all of the assets of Poinciana. Additionally, the attorney for Poinciana conceded that Rafael Ros instructed him ' to conceal the sale of the Lilandia property from Southwest and North Ring.

Subsequent to the Poinciana sale to WRJ, North Ring sued WRJ for the fraudulent transfer of the Lilandia property. In its findings of fact, the circuit court determined that Poinciana transferred the property with the “actual intent to hinder, delay, or defraud” North Ring and, therefore, satisfied the requirements for trans-feror liability as set forth in section 726.105, Florida Statutes. The circuit court detailed the following “badges of fraud” to support its finding: (1) the transfer was concealed from North Ring’s principal and attorney; (2) there were two suits pending against Poinciana prior to the transfer being made; (3) the transfer constituted substantially all of Poinciana’s assets; (4) Poinciana became insolvent after the transfer; (5) the transfer to WRJ occurred on August 28, 2000, shortly before North Ring obtained its January 16, 2001 final judgment to enforce the Note against Poinciana; (6) as required by the North Ring loan agreement, Poinciana did not obtain North Ring’s written consent to the sale of the Lilandia property; and (7) there was not a written purchase and sale contract to evidence the sale of the Lilan-dia property to WRJ.

Next, the circuit court examined whether WRJ took the property in good faith, thereby establishing a defense to the fraudulent transfer. See § 726.109(1), Fla. Stat. The circuit court found that: (1) J.C. Alvarez, the owner of WRJ, knew about the existence of North Ring and the loan agreement it had with Poinciana; and (2) J.C. Alvarez was aware that the sale of the Lilandia property was being concealed from North Ring.

The circuit court’s final judgment awarded damages to North Ring for $700,000, plus the interest rate specified on the Note, for a total of $1,439,543.40. Subsequently, WRJ filed its Motion to Vacate, which the circuit court denied. WRJ appealed both the order denying its Motion to Vacate and the final judgment of the circuit court. The two appeals were consolidated into this single appeal.

WRJ contends that, because North Ring failed to pay the documentary stamp tax on the Note prior to issuance of the final judgment against WRJ, the circuit court erred in denying its Motion to Vacate and for issuing the final judgment based on the unenforceable Note. We disagree.

Section 201.08(1) of the Florida Statutes states that “[t]he mortgage, trust deed, or other instrument shall not be enforceable in any court of this state ... until the tax due thereon ... has been paid.” § 201.08(1), Fla. Stat. The case law is well established that, in an action to enforce a promissory note, the documentary taxes must be paid in order for the note to be enforceable in court. See Somma v. Metra Elec. Corp., 727 So.2d 302, 305 (Fla. 5th DCA 1999); Klein v. Royale Group, Ltd.., 578 So.2d 394, 395 (Fla. 3d DCA 1991); Silber v. Cn’R Indus., Inc., 526 So.2d 974, 977 (Fla. 1st DCA 1988).

However, the action we have before us is not an action to enforce the Note. North Ring sought recovery against WRJ based on the fraudulent transfer of the Lilandia property and the circuit court found that, based on WRJ’s transferee liability stemming from this sale, North Ring was entitled to damages. See Hansard Constr. Corp. v. Rite Aid, Inc., 783 So.2d 307, 308 (Fla. 4th DCA 2001) (“[A] plaintiff may recover money damages against the trans-feror under the so-called catchall provision ... of the Uniform Fraudulent Transfer Act.”). The case law relating to the enforceability of promissory notes pursuant to section 201.08(1) of the Florida Statutes is relevant only to actions seeking recovery pursuant to a note. See Somma, 727 So.2d at 302 (raising the issue of the enforceability of a promissory note); Klein, 578 So.2d at 395 (determining liability for failure to pay a promissory note); Silber, 526 So.2d at 975 (seeking recovery on a promissory note). As such, the payment of the documentary stamp tax as a prerequisite to enforcing a note in court is inapplicable to a fraudulent transfer case.

We therefore affirm the circuit court’s final judgment and its denial of WRJ’s Motion to Vacate.

Affirmed.

      . A promissory note (the "Note”) was executed by North Ring and Poinciana and required Poinciana to notify North Ring if the Lilandia property was sold or transferred.


text:
    Ronald Lee CRAIG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-268.
    District Court of Appeal of Florida, Third District.
    March 19, 2008.
    Rehearing Denied April 24, 2008.
    Ronald Lee Craig, m proper person. Bill McCollum, Attorney General, for ap-pellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Craig v. State, 31 Fla. L. Weekly D 2337, — So.2d —, 2006 WL 2521405 (Fla. 3d DCA Sept. 1, 2006).


author: STEVENSON, J.

text:
    Daniel J. DOUGHTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-781.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    Rehearing Denied May 19, 2008.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

In this case, we consider whether the private conveyance exception of section 790.25, Florida Statutes, permits the unlicensed carrying of a concealed firearm or other weapon in a zippered pack around the waist while riding a motorcycle. We conclude that it does not.

On April 13, 2006, there was a near traffic collision between a motorcycle driven by Doughty and an unmarked car occupied by three off-duty, out-of-state law enforcement officers. Doughty pulled up beside the car and said something to the effect of, “you almost ran me over,” to which one of the officers responded, “you should not be driving in between traffic.” The officers engaged in a verbal argument with Doughty until Doughty stated, “I have a gun, I’ll kill you.” He then lifted his shirt, reached into a leather pack that was around his waist, and grabbed what the officers believed was a weapon. The officers quickly exited the vehicle with their guns drawn, announced that they were police, and ordered Doughty to the ground. Doughty attempted to flee, but one of the officers pursued and handcuffed him. By the time the local police arrived, the officers had recovered a loaded .40 caliber Smith & Wesson handgun from Doughty’s waist pack.

Doughty was charged with carrying a concealed firearm without a permit, in violation of section 790.01(2), Florida Statutes (2006), which provides that “[a] person who carries a concealed firearm on or about his or her person commits a felony of the third degree.”

Doughty moved to dismiss on the ground that his conduct fell within the private conveyance exception in section 790.25(3)(Z), Florida Statutes (2006), which provides that it is lawful for a person to carry a concealed firearm without a license, if that person is “traveling by private conveyance when the weapon is securely encased.” The legislature detailed the private conveyance exception in section 790.25(5), which permits the carrying of a concealed weapon “within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.” Section 790.25(5) further provides, “[n]othing herein contained, shall he construed to authorize the carrying of a concealed firearm or other weapon on the person.” (Emphasis added).

We acknowledge that pursuant to the supreme court’s holding in Alexander v. State, 477 So.2d 557, 560 (Fla.1985), the handgun was “securely encased” in Doughty’s zippered pack. Yet, pursuant to the unambiguous language of section 790.25(5), even a securely encased weapon does not fall under the private conveyance exception if it is carried “on the person.” See Gemmill v. State, 657 So.2d 900, 902 (Fla. 4th DCA 1995). In Gemmill, the defendant was carrying a concealed weapon on his waist in a securely encased zippered pack, inside an automobile. , We recognized that “section 790.25 specifically provides that the securely encased exception does not legalize the carrying of a concealed weapon on the person.” Id.

Our holding in Gemmill is no less applicable where a defendant is riding a motorcycle. In this regard, we further note that the private conveyance exception of section 790.25(5), by its express terms, applies only to the carrying of a concealed weapon “within the interior of a private conveyance.” We interpret this language to require a person carrying a concealed weapon without a permit, while riding a motorcycle, to keep the concealed weapon securely encased and in an interior compartment of the motorcycle.

Under the facts presented, Doughty did not meet the statutory requirements of the private conveyance exception because, albeit he was traveling in a private conveyance and his firearm was securely encased, he was carrying the firearm on his person and did not have it within an interior compartment of his motorcycle. We therefore affirm the trial court’s denial of Doughty’s motion to dismiss.

Affirmed.

STONE and TAYLOR, JJ., concur.


author: WOLF, J. BENTON, J.,

text:
    Bruce ROSENZWEIG, Boca Raton Bicycle Club, and League of American Bicyclists, Appellants, v. DEPARTMENT OF TRANSPORTATION, Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and Palm Beach, Appellees.
    No. 1D07-1373.
    District Court of Appeal of Florida, First District.
    March 25, 2008.
    Rehearing Denied April 30, 2008.

      Katherine E. Giddings and P. Bruce Culpepper of Akerman Senterfitt, Tallahassee; Jeffrey C. Lynne of Akerman Sen-terfitt, Ft. Lauderdale; and Lawrence D. Silverman of Silverman Cosgrove & Sam-mataro, Miami, for Appellants.
    Alexis M. Yarbrough, General Counsel, and Robert B. Vanhorne, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellee Department of Transportation; Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for Appellees Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, Town of South Palm Beach and Town of Palm Beach.
   WOLF, J.

Appellants (Bruce Rosenzweig, Boca Ra-ton Bicycle Club, and League of American Bicyclists) challenge a final order rendered by the Interim Secretary of the Department of Transportation (Department), ap-pellee, which adopted the factual and legal findings of the hearing officer’s Recommended Order. The order concluded that appellants did not have administrative standing to challenge the Department’s implementation of section 335.065, Florida Statutes, and it interpreted section 335.065, Florida Statutes, as giving the Department almost absolute discretion in dispensing with bicycle lanes on state road projects. Although we find that appellants had standing to challenge the Department’s implementation of section 335.065 in the State Road A1A project and we agree with appellants’ interpretation of section 335.065, Florida Statutes, we are constrained to affirm the final order because appellants waived their right to go to a formal hearing before the Division of Administrative Hearings by not requesting a formal hearing at any time. Accordingly, we affirm the Final Order.

Facts

Appellants filed an amended administrative petition against the Department alleging that the Department failed to comply with statutory law and administrative rules pertaining to the design and placement of bicycle lanes in conjunction with the resurfacing, restoration, and rehabilitation of State Road A1A in Palm Beach County. The amended petition stated that petitioners did not know if there were disputed issues of material fact and also asserted that the cost of placing standard five-foot bicycle lanes throughout parts of the project would not be excessively disproportionate to the need or probable use of such. Because the amended petition did not identify any disputed issues of material fact, pursuant to section 120.57(2), Florida Statutes, an informal hearing was set for December 11, 2006.

On or about November 13, 2006, a petition to intervene was filed by the Town of Ocean Ridge, Town of Gulf Stream, Town of Manalapan, South Palm Beach, and Palm Beach (Intervenors). The Order Granting Intervention was filed on November 16, 2006.

An informal hearing took place before the Department’s hearing officer on December 11, 2006. Appellants used their exhibits to argue the Department owns significant right-of-way in 90% of the State Road A1A project and that a five-foot bicycle lane along that right-of-way would be feasible. The Department, on the other hand, called the district consultant project manager, and he testified the Department considered several aspects of the project in determining that a five-foot bicycle lane would not be feasible. The project manager explained that the entire State Road A1A project was comprised of ten smaller projects beginning in Boca Ra-ton and ending in Lake Worth. He explained which factors were considered by the Department in either establishing or not establishing bicycle lanes in each of the ten projects. Factors considered by the Department included: 1) whether a bicycle lane was pre-existing; 2) the number of developments with sidewalks; 3) the characteristic of the landscape, driveways, utilities, vertical drains; 4) the impact on private facilities; 5) the presence of the statutorily protected Australian pines; 6) Resolution 5402 (entered into by several towns affected by the State Road A1A project); 7) the ocean and ocean levels; and 8) the narrowness of the available right-of-way. The project manager further testified the Department conducted a cost-benefit analysis and also considered the crash data available.

At no point during the informal hearing did appellants notify the hearing officer that there was a disputed issue of material fact requiring the case to be transferred to the Division of Administrative Hearings (DOAH).

The hearing officer filed a Recommended Order on February 26, 2007, concluding appellants did not have administrative standing to challenge the Department’s actions, and it also concluded that section 335.065, Florida Statutes, gives the Department discretion to implement the statute and does not require bicycle lanes and pedestrian ways to be established above all other concerns.

Standing

Whether appellants have standing to challenge the Department’s implementation of section 335.065, Florida Statutes, is a question of law. The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002) (citing § 120.68(7)(d), Fla. Stat. (1997)).

Section 120.52(12)(b), Florida Statutes, provides that a party to an administrative proceeding is “any person ... whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” Substantial interests are demonstrated if: 1) the party will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) the party’s substantial injury is of a type or nature which the proceeding is designed to protect. Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981); see also Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 209 (Fla. 1st DCA 2003) (“[A]n organization must show that it will suffer an injury in fact or that the action of the agency will adversely affect its individual members.”). The first aspect of the test deals with the degree of injury; the second deals with the nature of the injury. Agrico, 406 So.2d at 482.

The Department argues that appellants do not have standing and supports this position by citing to several cases where taxpayers challenged the decision of a legislative body to make an expenditure. However, while in taxpayer cases the strict rules for standing have been established to limit unwarranted use of judicial resources in challenges involving discretional decisions of legislative bodies, one of the major legislative purposes of the Administrative Procedure Act was the expansion of public access to the activities of governmental agencies. Fla. Home Builders Ass’n v. Dep’t of Labor, 412 So.2d 351, 352-53 (Fla.1982) (allowing builders’ association the opportunity to represent the interests of its injured members in a rule challenge).

In NAACP, Inc. v. Florida Board of Regents, the supreme court was asked to determine whether the NAACP had standing to challenge a rule amendment concerning admissions to the State University System. 863 So.2d 294, 295 (Fla.2003). Specifically, the rule amendments concerned the elimination of certain affirmative action policies by Florida’s state universities. Id. This court, in NAACP, Inc. v. Florida Board of Regents, 822 So.2d 1, 14 (Fla. 1st DCA 2002), had previously found the organization did not have standing, but certified the question as one of great public importance.

The supreme court applied the “associational standing” analysis discussed in Florida Home Builders, 412 So.2d at 352, to the facts before them. NAACP, 863 So.2d at 297. They reiterated that the purpose of the Administrative Procedure Act was to expand rather than restrict public participation in the administrative process. Id. at 298. Accordingly, the supreme court enunciated the following:

To meet the requirements of section 120.56(1), an association must demonstrate that a substantial number of its members, although not necessarily a majority, are “substantially affected” by the challenged rule. Further, the subject matter of the rule must be within the association’s general scope of interest and activity, and the relief requested must be of the type appropriate for a trade association to receive on behalf of its members.

Id. (citing Fla. Home Builders, 412 So.2d at 353-54.) Pursuant to this test, the supreme court found that the NAACP had standing to challenge the proposed rules as the proposed rules would drastically change the state university admission standards that applied to African-Americans and other minority students. Id. at 299. The supreme court further stated: “the cost of instituting and maintaining a rule challenge proceeding may be prohibitive” for the NAACP’s members, who are often poor and unable to maintain individual rule challenges. Id. (citing Fla. Home Builders, 412 So.2d at 353).

Considering the APA’s policy, the supreme court’s decision in NAACP, and the factors enunciated in Agrico, it is clear that if anyone has the ability to challenge the Department’s interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling.

Under the first prong of the Agrico test, appellants will suffer an injury of sufficient immediacy entitling them to a 120.57 hearing. Agrico, 406 So.2d at 482. This is clear because they will not have a delineated path on which to ride their bicycles if bicycle lanes are not constructed pursuant to the Department’s standards. Under the second prong of the Agrico test, appellants’ substantial injury is of the type which the proceeding is designed to protect. Id. As we will discuss below, section 335.065, Florida Statutes, is entitled “Bicycle and pedestrian ways along state roads and transportation facilities.” The statute, as analyzed below, sets forth a policy for incorporating bicycle lanes in construction and reconstruction projects, and it further delineates situations where the Department need not establish the bicycle lanes. § 335.065, Fla. Stat. The statute’s straightforward purpose is to regulate the placement of bicycle and pedestrian ways. Reason dictates that a bicyclist organization, like appellants, can demonstrate that a substantial number of its members will be affected by the Department’s decisions relating to the construction of bicycle paths. See NAACP, 863 So.2d at 298. Additionally, the association’s general scope of interest and activity (bicycling), and the relief requested (the establishment of bicycle lanes in the State Road A1A reconstruction project), is of the type appropriate for appellants to receive on behalf of its members. Id. Furthermore, the cost for individuals to challenge the establishment of bicycle lanes may be prohibitive to individual bicyclists. Id. at 299.

Thus, a challenge to the Department’s application of the statute by a bicyclist organization located in Palm Beach County meets the standing requirement delineated in Agrico. See also Gregory v. Indian River County, 610 So.2d 547 (Fla. 1st DCA 1992) (finding homeowners had a substantial interest in administrative proceeding before the Department of Environmental Regulation where the county sought a permit to construct a stormwater treatment system and engage in dredge and fill activities and homeowners faced potential injury if their land was declared to be wetlands or needed for mitigation; also explaining the purpose of Agrico).

In this case, appellants’ substantial interests will be affected by the Department’s proposed action. Thus, we agree with appellants and find they had standing to challenge the Department’s actions.

Interpretation of Section S35.065, Florida Statutes

While the parties argue over the interpretation of section 335.065, Florida Statutes, we find the statute is unambiguous. It provides, in relevant part:

335.065. Bicycle and pedestrian ways along state roads and transportation facilities
(l)(a) Bicycle and pedestrian ways shall be given full consideration in the planning and development of transportation facilities, including the incorporation of such ways into state, regional, and local transportation plans and programs. Bicycle and pedestrian ways shall be established in conjunction with the construction, reconstruction, or other change of any state transportation facility, and special emphasis shall be given to projects in or within 1 mile of an urban area.
(b) Notwithstanding the provisions of paragraph (a), bicycle and pedestrian ways are not required to be established:
1. Where their establishment would be contrary to public safety;
2. When the cost would be excessively disproportionate to the need or probable use;
3. Where other available means or factors indicate an absence of need.

We interpret this statute to mean that the Department is obligated to consider bicycle and pedestrian ways in the planning process and to establish bicycle and pedestrian ways in conjunction with the construction, reconstruction, or other change of any state transportation facilities. § 335.065(l)(a), Fla. Stat. Bicycle paths shall be established unless the Department exercises its discretion not to establish bicycle and pedestrian ways where any of the conditions in section 335.065(l)(b) are demonstrated. Accordingly, we agree with appellants’ interpretation of the statute and find that the Department’s discretion is limited.

However, the hearing officer found, and the final order so adopted, that the cost would be excessively disproportionate to the need or probable use of the bicycle and pedestrian ways. Thus, although we agree with appellants’ interpretation of the statute, the finding that the cost of incorporating bicycle paths throughout the State Road A1A project would be excessively disproportionate to their need or probable use compels this court to affirm the Department’s decision.

Waiver of Formal Hearing

If an agency’s action will determine the substantial interests of a party and there are disputed issues of material fact, a party is entitled to a formal proceeding under section 120.57(1), Florida Statutes. § 120.569(1), Fla. Stat. Unless waived by all parties, an informal hearing is appropriate whenever the substantial interests of a party are determined, but no material facts are in dispute. Id.; see also Weiss v. Dep’t of Bus. & Prof'l Regulation, 677 So.2d 98, 99 (Fla. 5th DCA 1996) (“When material facts are not in dispute, an agency is not required to grant a formal proceeding, even though requested by the party, and is free to insist that the matter be handled by informal proceeding.”). Accordingly, because there were no disputed issues of material fact alleged in appellants’ petition, the Department acted properly in granting appellants an informal hearing.

However, during the informal hearing, it became apparent that there were disputed issues of material fact. We agree with appellants that, whether or not the cost of incorporating bicycle paths in the State Road A1A project was excessively disproportionate to its need or probable use, is a question of fact. While appellants asserted that such cost was not excessive, the Department introduced, throughout the informal hearing, evidence that the cost would be excessive. Thus, the parties were on notice during the informal hearing that there were disputed issues of material fact in this case which necessitated a formal hearing. Neither the Department nor appellants apprised the hearing officer of this issue.

It is well established that a claim of error, even in the administrative context, cannot be raised for the first time on appeal. See Goodson v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 978 So.2d 195 (Fla. 1st DCA 2008) (citing Twins D & D, Inc. v. Dep’t of Bus. & Prof'l Regulation, 722 So.2d 234 (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates, Inc. v. Fla. Pub. Serv. Comm’n, 654 So.2d 678 (Fla. 1st DCA 1995)). In Goodson, this court interpreted section 455.225(5), Florida Statutes, which requires that “[i]f any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held.” Id. This court acknowledged the mandatory language of the provision, but held that even this mandatory provision was subject to the rule of preservation. Id. Likewise, in this case, because appellants failed to preserve this issue for appellate review, this court is constrained to affirm the order on appeal.

We acknowledge that our decision today may be viewed to be in conflict with Campbell v. Department of Business and Professional Regulation, Division of Real Estate, 868 So.2d 1265 (Fla. 4th DCA 2004), and Meller v. Florida Real Estate Commission, 902 So.2d 325 (Fla. 5th DCA 2005). Those cases, however, do not specifically address whether the parties asked for a formal hearing once disputed issues of material fact became known. To the extent they may be read to mean that a party may raise the issue of failure to grant a formal hearing without making such a request before the agency, we reject such interpretation. The decision of the Department is affirmed.

PADOVANO, J., concurs; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

“When material facts are not in dispute, an agency is not required to grant a formal proceeding and is free to insist that the matter be handled by informal proceedings.” Hobe Assocs., Ltd. v. Dep’t of Bus. Regulation, 504 So.2d 1301, 1305 (Fla. 1st DCA 1987). But, when material facts are in dispute, substantially affected parties are entitled to an evidentiary hearing conducted in conformity with sections 120.569 and 120.57(1), Florida Statutes (2007). See J.M. v. Fla. Agency for Persons with Disabilities, 938 So.2d 535, 537 (Fla. 1st DCA 2006); Gopman v. Dep’t of Educ., 908 So.2d 1118, 1120-21, 1123 (Fla. 1st DCA 2005). A timely petition for such a hearing secures the right. See Dep’t of Transp. v. Lopez-Torres, 526 So.2d 674 (Fla.1988); City of Sarasota v. State, Dep’t of Transp., 783 So.2d 1186 (Fla. 1st DCA 2001).

Even if a dispute of material fact emerges after an informal hearing has begun, the informal hearing should cease and a formal hearing should be convened in its stead, “[n]otwithstanding ... [a prior] written election for an informal hearing.” Mixon v. Dep’t of State, Div. of Licensing, 686 So.2d 755, 756 (Fla. 1st DCA 1997). In order to preserve the point for appeal, however, a party must “request that the informal hearing be terminated ... or otherwise object to the continuation of the [section 120.57(2) ] proceedings.” Goodson v. Fla. Dep’t of Bus. & Prof'l Regulation, Div. of Real Estate, 978 So.2d 195 (Fla. 1st DCA 2008).

       The Department argues that other statutory sections must be taken into account in whether to construct bicycle and pedestrian ways; in light of our decision, it is unnecessary for us to reach that issue.


author: LaROSE, Judge.

text:
    Kevin P. STOREY, Appellant, v. Diana W. STOREY, Appellee.
    No. 2D06-5824.
    District Court of Appeal of Florida, Second District.
    March 26, 2008.
    Rehearing Denied April 9, 2008.
    Virginia R. Vetter, Tampa, for Appellant.
    Mark A. Neumaier, Tampa, for Appel-lee.
   LaROSE, Judge.

Kevin P. Storey (the Husband) appeals the amended final judgment of dissolution of his marriage to Diana W. Storey (the Wife). The trial court erroneously included the children’s expenses in determining the Wife’s need for alimony. Consequently, we reverse.

The trial court awarded the Wife $2000 per month in alimony and $187 per month in child support. The Wife’s financial affidavit, on which the trial court based its award, includes monthly children’s expenses of $1370; the Husband’s financial affidavit reflects only $459. By considering these expenses in calculating the alimony, the trial court double counted child support. To avoid this result, the alimony award must be recalculated. See Levine v. Levine, 964 So.2d 741, 742 (Fla. 4th DCA 2007). We reverse and remand with directions that the trial court determine alimony without including the children’s expenses. Child support must then be recalculated in light of the amended alimony-amount. See § 61.30(2)(a)(9), Fla. Stat. (2005); Cornett v. Cornett, 713 So.2d 1083, 1085 (Fla. 2d DCA 1998) (stating trial court must first determine alimony and then, considering alimony as income, determine child support).

Reversed and remanded with directions.

WALLACE, J., and LOGAN, PAUL E„ Associate Judge, Concur.


author: TAYLOR, J.

text:
    Daniel P. DONOHUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-518.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Rehearing Denied May 19, 2008.
    Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauder-dale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Daniel Donohue appeals his judgment of conviction and sentence for indecent assault on a child under the age of sixteen. We affirm the conviction, finding no abuse of discretion in the admission of Williams rule evidence or the denial of appellant’s motion for mistrial based on closing remarks by the state. We also affirm appellant’s sentence, but write to address his argument that his sentence must be reversed based on Donohue v. State (Donohue I), 925 So.2d 1163 (Fla. 4th DCA 2006), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In Donohue I, appellant was convicted of indecent assault on a different victim. There, the trial court imposed an upward departure sentence after determining that the victim, an autistic child, was especially vulnerable. We remanded the case for re-sentencing because this aggravating circumstance was not determined by the jury or admitted by appellant, as required by Blakely and Apprendi.

Appellant argues that Donohue I and this case are indistinguishable. The state responds that this case is different because here, unlike in Donohue I, appellant took the stand and admitted to the aggravating factual circumstances, i.e., the victim’s vulnerability. The state argues that his admission to the facts in issue obviated the need for a jury determination. See Blakely, 542 U.S. at 303, 124 S.Ct. 2531.

In Donohue I, just as in this case, the state moved to aggravate the defendant’s sentence pursuant to section 921.0016(3)(j), Florida Statutes, asserting the victim’s vulnerability due to young age and autism. 925 So.2d at 1164. We remanded for re-sentencing, stating:

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United State Supreme Court held: ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ The Supreme Court, in Blakely, 542 U.S. at 303, 124 S.Ct. 2531, defined the statutory maximum as ‘the maximum [the trial judge] may impose without any additional findings’ beyond those ‘reflected in the jury verdict or admitted by the defendant.’ In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court reaffirmed the application of Apprendi’s principles to guidelines sentencing schemes. There, the Court held that imposing a sentence under the federal sentencing guidelines based on ‘additional facts that the sentencing judge found by a preponderance of the evidence’ violated the Sixth Amendment. Id. at 226, 125 S.Ct. 738. Under the Supreme Court’s interpretation of the Sixth Amendment, other than a defendant’s prior convictions, the aggravating circumstances relied upon to exceed the maximum guidelines sentence must be based on (1) findings made by the jury or (2) facts admitted by the defendant.

Id. at 1164-65.

The Florida Supreme Court explained in Galindez v. State, 955 So.2d 517, 523 n. 2 (Fla.2007), that Blakely contemplated facts “admitted by the defendant” to mean facts the defendant admitted in a guilty plea, at sentencing, or in a stipulation at trial, or judicial findings to which the defendant assented. Because appellant’s trial testimony does not fall within any of these categories, we do not find that it constitutes an admission by appellant regarding the victim’s vulnerability. Thus, the trial court committed error by enhancing appellant’s sentence above the guidelines without a specific finding by the jury. Blakely, 542 U.S. at 303, 124 S.Ct. 2531.

We conclude, however, that the error was harmless. In Galindez, the supreme court noted that a harmless error analysis applies to Apprendi/Blakely error. 955 So.2d at 522-23 (discussing Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)). The court stated that the test is “whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the fact at issue].” Id. at 523. In this case, appellant testified that he volunteered at a school for autistic children to try to help the children and alleviate his own feelings of guilt about his prior acts of child molestation. Appellant said that he knew the victim was autistic and that he had observed his strange mannerisms and behavior. Other witnesses similarly attested to the victim’s age and autism. In sum, there was “clear and uncontested record evidence” of the victim’s young age and vulnerability. Any error in this case was thus harmless beyond a reasonable doubt. See Galindez, 955 So.2d at 524. Accordingly, we affirm the judgment of conviction and sentence.

Affirmed.

STONE and STEVENSON, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Daniel DONOHUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4217.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2008.
    Rehearing Denied May 19, 2008.
    Richard L. Rosenbaum of Arnstein & Lehr, LLP, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Daniel Donohue appeals his sentence for indecent assault on a child under the age of sixteen. We reverse and remand for additional findings by the trial court regarding the trial court’s imposition of GPS monitoring as a condition of probation, but we affirm appellant’s split sentence.

In Donohue v. State, 925 So.2d 1163 (Fla. 4th DCA 2006), we remanded the case for re-sentencing because an aggravating circumstance used to enhance appellant’s sentence had not been determined by the jury or admitted by appellant, as required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

At the re-sentencing hearing, the state requested that the trial court impose sexual offender probation, but the court refused, claiming that, in 1997, when the crime was committed, sexual offender probation did not exist. The trial judge also said that, “regardless of the court’s ruling, the Department of Corrections and pursuant to the Jessica Lunsford Act, Mr. Dono-hue is going to be on lifetime GPS monitoring. And the court might just as well bite the bullet now and impose it because that’s pursuant to the Act.” Over appellant’s objections, the trial court determined that the Jessica Lunsford Act is “self-effectuating” and does not require any factual findings or notice. Near the end of the hearing, the prosecutor said that appellant is a sexual offender, and the judge did not disagree with that statement, although both parties and the judge acknowledged that appellant is not a sexual predator and that the trial court had been wrong to classify him as one during the original sentencing.

Section 948.30, Florida Statutes (2006), a portion of the Jessica Lunsford Act, states:

(2) Effective for a probationer or community controllee whose crime was committed on or after October 1, 1997, and who is placed on community control or sex offender probation for a violation of chapter 794, s. 800.04, s. 827.071, or 847.0145, in addition to any other provision of this section, the court must impose the following conditions of probation or community control:
(e) Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the Department of Corrections.
(3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:
(a) Is placed on probation or community control for a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older;
(b) Is designated a sexual predator pursuant to s. 775.21; or
(c) Has previously been convicted of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older,
the court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision.

We are unable to determine whether the trial court’s misapplication of the Act was the sole reason that the trial court sentenced appellant to electronic monitoring. Under section 948.30(2)(e), Florida Statutes, the court was required to impose electronic monitoring only “when deemed necessary by the- community control or probation officer and his or her supervisor” and recommended by the Department of Corrections. The trial judge appeared to believe that electronic monitoring was mandatory and that no additional factual findings were necessary.

The facts of this case are very similar to those of Burrell v. State, — So.2d -, 2007 WL 3317518 (Fla. 2d DCA 2007). In Burrell, the trial judge mistakenly thought that he had to impose electronic monitoring under the Jessica Lunsford Act. Id. at *1, at-. The second district court of appeal held, “[bjecause it is unclear whether the trial court would have imposed electronic monitoring as a condition of probation had it known it was not mandatory, we remand for resentencing to allow the trial court to exercise its discretion to determine whether electronic monitoring should be imposed.” Id.

We reverse and remand for further findings by the trial court to determine whether electronic monitoring should be imposed on appellant. Further, because the record is not clear, we also remand for further findings as to whether or not appellant is a sexual offender.

Reversed and Remanded.

STONE, STEVENSON, and TAYLOR, JJ., concur.


text:
    Joshua POWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-407.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Joshua Powell, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Joshua Powell, pro se, appeals the trial court’s denial of his motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800. The trial court denied the motion for lack of jurisdiction, noting that it was filed November 15, 2007, over sixty days after Powell was sentenced.

Under Rule 3.800(c), a motion to mitigate sentence is also timely if filed “within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal.” In this ease, Powell claims this Court’s mandate in a prior appeal, Powell v. State, 963 So.2d 717 (Fla. 3d DCA 2007), was entered October 12, 2007, such that his motion was timely.

However, the prior case in this Court referred to by Powell was not an original appeal from the judgment or sentence. Rather, that case reviewed the denial of other post-conviction motions by Powell. As a result, the trial court correctly held that Powell’s 2007 motion to mitigate was untimely.

Affirmed.


text:
    Dukene MYRTIL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2778.
    District Court of Appeal of Florida, Third District.
    March 26, 2008.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ventura v. State, 973 So.2d 634 (Fla. 3d DCA 2008).


author: PADOVANO, J. BENTON, J.,

text:
    Angela Teresa SIMMONS, Appellant, v. Clayton Miles SIMMONS, Appellee.
    No. 1D07-2451.
    District Court of Appeal of Florida, First District.
    March 31, 2008.
    Rehearing Denied April 30, 2008.
    Clay B. Adkinson of the Adkinson Law Firm, LLC, Defuniak Springs, for Appellant.

      Jams L. Burke, Fort Walton Beach, for Appellee.
   PADOVANO, J.

Angela Simmons, the former wife, appeals the final judgment in her dissolution of marriage case. She contends that the trial court erred by dividing the assets of the parties without making the required findings of value. We conclude that this argument has been waived and we therefore affirm.

The proper method of equitably dividing assets and liabilities in a dissolution of marriage case is regulated in detail by statute. Section 61.075(3), Florida Statutes (2007), states in material part that “any distribution of marital assets or marital liabilities shall be supported by findings in the judgment,” and that the judgment shall include specific findings of fact as to the “identification of marital assets, including the individual valuation of significant assets.” In the present case, the former wife contends that the trial judge “dispensed with the marital belongings summarily” with “a mere brief recitation of the assets awarded to the husband then to the wife.” Yet, under the circumstances, that is all the trial judge could have done. The judge could not have made findings of value based on anything other than the evidence presented by the parties, and the parties did not present evidence of value for many of the major assets included in the equitable distribution.

The need for a valuation of the assets assumes that the trial court has resolved a controversy regarding the division of property and the parties have presented some evidence of value for each of the significant assets. A trial judge has no duty under the statute to make findings of value if the parties have not presented any evidence on that issue. The findings required by section 61.075(3)(b) help to facilitate the right of appellate review. However, that objective would not be advanced if we were to ask trial judges to fill gaps in the evidence by making their best estimate of value. We do not think that a trial judge should guess at the value of an item of property merely to satisfy a statutory requirement of form. It is more logical in our view to conclude that this requirement comes into play only if there is a dispute about the division of property, and then only -if one party is claiming that the evidence does not support the division made by the trial judge.

To test this conclusion we need only consider what would happen if we were to reverse and remand with instructions to make the proper findings. The trial judge would not be able to make the findings of value on the present state of the record. Therefore, he would have no alternative but to allow the parties a second opportunity to litigate the issue. In the end, the decision would confer a benefit on the party who is responsible for the trial court’s error. That result is not consistent with the text or overall plan of the statute.

We reject the argument on appeal for the additional reason that the former wife did not bring the alleged deficiency to the trial court’s attention at a time when it might have been corrected. She filed a motion for rehearing to challenge other aspects of the trial court’s decision but did not argue in her motion that the judgment was defective in that it failed to include findings of value. The issue was not presented to the trial court and, for that reason, it may not be considered on appeal. As we have explained, a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing. See, e.g., Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007).

There are good reasons for this rule. A trial judge who is made aware of the fact that a required finding was omitted could easily redraft the judgment to include that finding. In contrast, a trial judge who assumes that the form of the judgment was acceptable and learns of the alleged deficiency only after the appeal has been concluded is not likely to be in a position to make the appropriate findings. It would be unrealistic to assume that a trial judge would remember, a year or so later, the value of a car or boat or some item of personal property that was included in an equitable distribution of property. In some cases, the trial courts would be required to begin the process anew, and that would only reward the party who failed to make a timely objection.

Section 61.075(3)(b) requires the trial court to make a finding of the individual value of significant assets but it does not suggest that a failure to make such a finding is an issue that can be raised for the first time on appeal. Like most other legal issues, it must be preserved for review by a timely objection and ruling in the trial court.

For these reasons, we conclude that the alleged defect in the final judgment is an issue that is no longer open for debate. We have not addressed all of the issues that were raised in this appeal but we have carefully considered them all. Because we find no error in the judgment on the point we have addressed or on any other issue in the case, we affirm the decision of the trial court.

Affirmed.

WOLF, J., concurs.

BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

Before the parties married, Mr. Simmons’s uncle gave him the real property on which the marital home stood at the time of the dissolution. Some five years before he petitioned for dissolution, Mr. Simmons conveyed the property to Mrs. Simmons and himself as tenants by the entireties. After the property was in both names, they mortgaged it as security for repayment of a loan they took out, and improvements were made to the house, although there was some dispute as to how the loan proceeds were applied exactly.

Mr. Simmons testified he signed the deed so Mrs. Simmons would not leave him again, after she said to him, “[I]f you love me, you’ll put my name on the deed so if anything ever happens to you, I won’t have to go through the court system.” She testified she understood him as offering to give her half interest in the property, and that he said he meant to do so by the deed he executed. Pertinent here is section 61.075(5)(a)5., Florida Statutes (2004), which provides:

All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.

The trial court ruled that Mr. Simmons met his burden of establishing that the transfer of the title to the house was not intended as a gift, but was done “solely for survivorship purposes during coverture.” Ball v. Ball, 335 So.2d 5, 7 (Fla.1976). The Ball decision antedates the statute, however, and ought not control here. See Robertson v. Robertson, 593 So.2d 491, 493 (Fla.1991); Rutland v. Rutland, 652 So.2d 404, 406 (Fla. 5th DCA 1995) (holding “husband’s self-serving claim that no gift was intended” insufficient to overcome the statutory presumption), receded from on other grounds in Anson v. Anson, 772 So.2d 52 (Fla. 5th DCA 2000).

The Fifth District’s decision in Hill v. Hill, 675 So.2d 168, 169 (Fla. 5th DCA 1996), lends some support to the view that one spouse can convey to both spouses as tenants by the entirety in fee simple without, in effect, conveying a present interest. But see Smeaton v. Smeaton, 678 So.2d 501, 501 (Fla. 1st DCA 1996) (concluding there was “insufficient evidence to overcome the statutory presumption that real estate held as tenants by the entireties constitutes a marital asset”). In any event, the Simmonses’ case more closely resembles Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356, 358 (1945), which the Hill court was at pains to distinguish, quoting Rutland, 652 So.2d at 406:

In our case, the husband deeded all of his “right, title, interest, claim and demand” in the property to himself and his wife as tenants by the entireties.... He made the wife aware of the conveyance, apparently without advising her of his now claimed reservation of an equitable interest. He held her out to others as a co-owner of the property when he permitted her to join with him in the joint execution of a note and mortgage for the financing of subsequent improvements. And he testified, as did the husband in Rollar, that he wanted the wife to have the home if he predeceased her.

Hill, 675 So.2d at 169-70. See also Stough v. Stough, 933 So.2d 603, 606-07 (Fla. 1st DCA 2006). On this basis, I would reverse the judgment below insofar as it treats the marital home as a non-marital asset, and remand for an equitable distribution of all marital property, including the home. As for the parties’ personalty, I agree with the majority opinion that a party who adduces no proof as to the value of property should not be heard on appeal to complain about the final judgment’s failure to pluck a value out of thin air to assign to the property. Given what I view as the mis-characterization of the parties’ principal marital asset as non-marital, however, I respectfully dissent from today’s affir-mance.


text:
    Daniel Allen REAVES, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1205.
    District Court of Appeal of Florida, First District.
    March 31, 2008.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from Appellant’s convictions for racing on a highway, in violation of section 316.191(2)(a), Florida Statutes (2005), and vehicular homicide, in violation of section 782.071(1), Florida Statutes (2005). The convictions were entered below based upon Appellant’s guilty plea. Appellant now argues the trial court abused its discretion by denying his motion to withdraw his guilty plea to vehicular homicide. He claims this charge lacked a factual basis on the element of causation. Aso, Appellant contends section 316.191 is facially unconstitutional as void for vagueness. We find Appellant’s arguments unpersuasive and affirm his convictions.

I

Appellant was involved in an incident described in a probable cause affidavit. According to the affidavit, on May 29, 2005 at approximately 12:50 a.m., Appellant and Benjamin Street began to drag race at a high rate of speed. Street had a passenger in his vehicle, Brandy Byer. When Street attempted to pass Appellant in a “no passing zone,” Appellant increased his speed, causing the two cars to come side by side as they approached a median. Immediately before the median, Street increased his speed in an attempt to cut in front of Appellant’s vehicle. However, Street’s car struck the median and spun out of control, striking two trees in quick succession before flipping through the air. The impact with the second tree was on the passenger side, where Byer was riding, and she died as a result of the crash. Appellant, realizing the accident had occurred, immediately left the scene.

Appellant was subsequently charged by information with one count of racing on a highway, and one count of vehicular homicide and leaving the scene of an accident. He pled guilty to racing and vehicular homicide, without the aggravating factor of leaving the scene. The trial court found the plea supported by an adequate factual basis.

Appellant then moved to withdraw his plea to the vehicular homicide charge, claiming Street alone was the proximate cause of Byer’s death as he recklessly drove the vehicle in which she was a passenger. Appellant concluded that without causation, there was an insufficient factual basis for his plea and it should be set aside.

Following a hearing, the trial court denied Appellant’s motion, emphasizing that Appellant had admitted to participating in the unlawful race, Byer was not a direct participant in the race, and past caselaw held all drivers in an unlawful race responsible for the deaths of innocent bystanders. Appellant was sentenced as a youthful offender to four years imprisonment, followed by two years of probation, for the vehicular homicide charge, and time served on the racing charge. This appeal followed.

II

Appellant argues the trial court should have granted his motion to withdraw his guilty plea to vehicular homicide as the charge was not supported by the element of causation. Appellant claims he was not the cause of Byer’s death, proposing two alternate theories of causation. First, Appellant implies that since Byer was a voluntary participant in the race, she was in effect the cause of her own death. Second, Appellant claims that Street alone should be found the cause because he refused to slow down and merge as his car approached the median. These claims are unpersuasive.

Appellate courts review a trial court’s denial of a motion to withdraw a guilty plea under an abuse of discretion standard. See Wright v. State, 961 So.2d 1036, 1040 (Fla. 4th DCA 2007); Cabrera v. State, 915 So.2d 727, 728 (Fla. 5th DCA 2005). Upon a showing of good cause, a trial court may permit a guilty plea to be withdrawn before sentencing. See Fla. R.Crim. P. 3.170(f). Since it is fundamental error to accept a plea that is not factually supported, a good cause for withdrawal is insufficient factual support. See Fla. R.Crim. P. 3.170(k)(l) (2007); Allen v. State, 876 So.2d 737, 739-740 (Fla. 1st DCA 2004).

Vehicular homicide “is the killing of a human being ... caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2005). Proximate causation, or a causal connection between the defendant’s reckless driving and the victim’s death, is an essential element of vehicular homicide. See Armenia v. State, 479 So.2d 260, 262 (Fla. 5th DCA 1985).

Turning to Appellant’s claim that Byer effectively caused her own death, we have found that a “decedent’s conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death.” Union v. State, 642 So.2d 91, 94 (Fla. 1st DCA 1994) (emphasis added); see also Michel v. State, 752 So.2d 6, 12 (Fla. 5th DCA 2000); Nunez v. State, 721 So.2d 346, 347 (Fla. 2nd DCA 1998). Cases where the decedent is held responsible involve circumstances where the deceased’s conduct alone led to his or her death.

For instance, in J.A.C. v. State, 374 So.2d 606, 607 (Fla. 3rd DCA 1979), a passenger in a car being driven in a drag race was found to be the proximate cause of her own death. However, the accident resulting in the death occurred “only because the decedent, while attempting to operate the gear shift, instead grabbed the steering wheel and caused the vehicle to go out of control.” Id. (emphasis added).

Similarly, in Velazquez v. State, 561 So.2d 347, 353 (Fla. 3rd DCA 1990), the decedent was found responsible after inexplicably driving his car through a guardrail following a drag race with the defendant. Since the decedent volitionally drove his car off the embankment after the race had ended, it was found “unjust to hold the defendant criminally responsible for the deceased’s unexpected and near-suicidal conduct.” Id.; see also Union, 642 So.2d at 94.

Here, there is no evidence Byer attempted to grab the steering wheel or was in control of the car when it struck the median. Similarly, there is no evidence she played an active role in the race, or that she even acquiesced to Street’s decision to participate in the race. However, there is evidence that Appellant was at least partially responsible for Byer’s death as he refused to let Street’s car merge as they approached the median. Since there is no evidence that Byer’s conduct was the sole cause of the accident, she cannot be considered the proximate cause of her own death.

Similarly unpersuasive is Appellant’s argument that Street was the sole cause of Byer’s death. When a party creates a condition of peril by his wrongful conduct, his actions can be found the proximate cause of the resulting injury, even if later events combined to cause such injury, so long as the later acts reasonably followed in the natural sequence of events. See State v. Gensler, 929 So.2d 27, 31 (Fla. 3rd DCA 2006); M.C.J. v. State, 444 So.2d 1001, 1005 (Fla. 1st DCA 1984) (stating an intervening cause cannot be foreseeable).

Here, Street’s refusal to slow his vehicle and merge as the cars approached the median does not excuse Appellant’s liability in Byer’s death. It was natural, and thus foreseeable, for Street to increase his speed and attempt to pass Appellant as they were engaged in a high speed race. Arguably, Appellant alone created the condition of peril by increasing his speed to match that of Street’s car, instead of allowing Street to safely pass by. Regardless, since Street’s actions were a foreseeable response to Appellant’s conduct, both Appellant and Street may be held liable for Byer’s death. See Jacobs v. State, 184 So.2d 711, 716 (Fla. 1st DCA 1966) (finding “[t]he deaths which proximately resulted from the activities of the three persons engaged in the unlawful activity of drag racing made each of the active participants equally guilty of the criminal act which caused the death of the innocent party”).

Given the foregoing, the charge of vehicular homicide had adequate factual support and the trial court did not abuse its discretion by denying Appellant’s motion to withdraw his guilty plea.

Ill

Regarding the facial validity of section 316.191, Appellant claims the statute should be found unconstitutionally vague pursuant to State v. Wells, 965 So.2d 834 (Fla. 4th DCA 2007). However, as discussed below, we find that the statute can be interpreted in such a way as to survive a facial constitutional challenge.

A statute cannot be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. See Lakeland Reg’l Med. Ctr., Inc. v. State, Agency for Healthcare Admin., et al, 917 So.2d 1024, 1030 n. 1 (Fla. 1st DCA 2006). When reasonably possible and consistent with constitutional rights, all doubts concerning a statute should be resolved in favor of its validity. See State v. Brake, 796 So.2d 522, 527 (Fla.2001). However, any doubts raised in a vagueness challenge should be resolved in the citizen’s favor and against the State. Id.

Applying these principles, we conclude that section 316.191 can survive a facial challenge, contrary to the Fourth District’s finding in Wells. Section 316.191, Florida Statutes (2005), states, in pertinent part:

(1) As used in this section, the term:
(b) “Drag race” means the operation of two or more motor vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, or the operation of one or more motor vehicles over a common selected course, from the same point to the same point, for the purpose of comparing the relative speeds or power of acceleration of such motor vehicle or motor vehicles within a certain distance or time limit.
(c) “Racing” means the use of one or more motor vehicles in an attempt to outgain or outdistance another motor vehicle, to prevent another motor vehicle from passing, to arrive at a given destination ahead of another motor vehicle or motor vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes.
(2)(a) A person may not:
1. Drive any motor vehicle, including any motorcycle in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot.

Traditionally, when considering the facial validity of a statute, the standard to be applied is whether the statute’s language is sufficiently definite to warn a person of common intelligence of the activity it proscribes. See Wilkerson v. State, 401 So.2d 1110, 1111 (Fla.1981). The statute’s language must not lend itself to arbitrary enforcement at an officer’s discretion. See Wyche v. State, 619 So.2d 231, 234 (Fla.1993). However, in cases such as this, when a defendant facially challenges a statute based on vagueness, and the statute does not implicate constitutionally protected conduct, the court must determine if the enactment is impermissi-bly vague in all its applications. See Travis v. State, 700 So.2d 104, 105-106 (Fla. 1st DCA 1997). In doing so, “the court must begin by applying the enactment to the facts of the case at hand.” Id. at 106.

Here, section 316.191 fairly proscribes Appellant’s conduct. According to the probable cause affidavit, Appellant engaged in a high speed drag race on a public road against another vehicle. The obvious purpose of Appellant’s conduct was to outdistance the other car and be the first to arrive at a given destination. This conduct, combined with the fact that Appellant refused to let the other vehicle pass, is encompassed by the definition of “racing” and, more importantly, is expressly prohibited by section 316.191(2)(a)(l). Thus, the statute is facially valid.

This finding directly conflicts with the Fourth District’s conclusion in Wells, where it determined section 316.191 to be unconstitutionally vague. See 965 So.2d at 834. The Fourth District found the statute’s definition of “racing” as the “use of one or more vehicles in an attempt to outgain or outdistance another motor vehicle” included legal activities such as passing and accelerating from a stop. Id. at 839. It concluded that “[s]eetion 316.191, by failing to include an element of competition in its out-of-the-ordinary definition of ‘race,’ encompasse[d] an endless range of otherwise legal conduct ... so as to make the scope of proscribed conduct vague and the statute facially unconstitutional.” Id.

The Fourth District’s finding that the definition of “racing” should have included an element of competition is unpersuasive. When engaging in statutory interpretation, “related statutory provisions must be read together to achieve a consistent whole.” Woodham v. Blue Cross & Blue Shield, Inc., 829 So.2d 891, 898 (Fla.2002); see also Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007). Here, section 316.191(2)(a)(l) prohibits drivers from engaging in, among other things, “any race, speed competition or contest, [or] drag race or acceleration contest.” (emphasis added). Moreover, the legislature defined “drag race” as when two vehicles engage “in a competitive attempt to outdistance each other.” § 316.191(l)(b), Fla. Stat. (emphasis added). Reading these provisions together, the statute cannot be applied unless vehicles are “competing” with each other. Therefore, we decline to follow Wells and find section 316.191 facially constitutional.

IV

We affirm Appellant’s convictions for racing on a highway and vehicular homicide. In so doing, we reject Appellant’s claims that his motion to withdraw his guilty plea was improperly denied and that section 316.191 is facially unconstitutional. We certify conflict with Wells, to the extent that it found section 316.191 facially invalid as void for vagueness.

AFFIRMED.

WEBSTER, DAVIS, and HAWKES, JJ., concur.

      . To the extent Velazquez may be more broadly read as refusing to impose criminal liability on a defendant for the death of a co-participant in a drag race, it has been found unpersuasive. See State v. Famer, 66 S.W.3d 188, 200-201 (Tenn.2001) (stating "better-reasoned cases reject” such an approach and "uphold homicide convictions when the victim is a co-participant in a drag race.”). The rationale that a defendant cannot be held liable when a victim voluntarily participates in the conduct causing his or her death has been criticized as "distort[ing] the meaning of legal cause.” Wayne R. LaFave, Substantive Criminal Law § 6.4(h) (3d ed. 2003).


text:
    Katrina RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-270.
    District Court of Appeal of Florida, Third District.
    April 2, 2008.
    Katrina Ramos, in proper person.
    Bill McCollum, Attorney General, Assistant Attorney General, for appellee.
    Before COPE, WELLS and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004), appeal dismissed, 890 So.2d 1114 (Fla.2004); see also Rivera v. State, 954 So.2d 1216 (Fla. 3d DCA 2007), review granted, 968 So.2d 557 (Fla.2007) (citing Fulcher).


text:
    Alfonso DeLEON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-157.
    District Court of Appeal of Florida, Third District.
    April 2, 2008.
    Alfonso DeLeon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). While the trial court denied the motion on the merits, the postconviction record now before us does not contain a complete copy of the sentencing order. Because of this deficiency, the present record does not demonstrate conclusively that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we are obliged to reverse the order and remand for further proceedings. If the trial court again enters an order denying the motion summarily, the court shall attach the complete sentencing order.

Reversed and remanded for further proceedings.


text:
    Jacques GUERIN, Appellant, v. Michelle GUERIN, Appellee.
    Nos. 3D07-1994, 3D07-1992, 3D07-1028.
    District Court of Appeal of Florida, Third District.
    April 2, 2008.
    Michael Lechtman, North Miami Beach, for appellant.
    Weiss, Handler, Angelos & Cornwell, P.A., and Carol A. Kartagener, Boca Ra-ton, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Escudero v. Escudero, 739 So.2d 688, 693 (Fla. 5th DCA 1999)(con-cealment and dissipation of marital assets are grounds justifying disproportionate awards of marital assets). See also Montalvo v. Montalvo, 949 So.2d 350, 351 (Fla. 4th DCA 2007)(“[T]he trial court may consider the misconduct of either party in fashioning the equitable distribution only if the misconduct resulted in wasting or depletion of assets.”)(citing Murray v. Murray, 636 So.2d 536, 538 (Fla. 1st DCA 1994)).


text:
    Jeovany TORRES, Diego Torres, and Three Towers Corporation, a Florida corporation, Appellants, v. Jose REIMONDEZ and Estate of Jose J. Torres, Appellees.
    No. 3D07-1619.
    District Court of Appeal of Florida, Third District.
    April 2, 2008.
    Theodore R. Bayer, for appellants.
    McConnell Lipton and H. Hugh McConnell; Siegfried, Rivera, Lerner, De La Torre & Sobel and Helio De La Torre, for appellees.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Although equitable circumstances other than fraud or misrepresentation, including the prevention of unjust enrichment, are grounds for imposing an equitable lien, we find that the circuit court was correct in determining that an equitable lien was not warranted under the facts of this case. See Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4th DCA 2006); McPherson v. Redding, 323 So.2d 687 (Fla. 3d DCA 1975); Imler Earthmovers, Inc. v. Schatten, 240 So.2d 76 (Fla. 1st DCA 1970).

Affirmed.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. Stanley Scott LYONS, Appellee.
    No. 4D07-1349.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Rehearing Denied May 15, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Charles G. White of Charles G. White, P.A., Miami, for appellee.
   KLEIN, J.

Appellee negotiated a plea of guilty in ten cases which resulted in a twenty-year sentence in each case as a habitual offender, the sentences to run concurrently. The plea agreement provided he would receive a credit of 223 days for time served. In his rule 3.800 motion appellee contends that his sentences were also supposed to be “coterminous,” which would result in some of the sentences expiring on earlier dates than if they were not coterminous. Llerena v. State, 953 So.2d 31 (Fla. 3d DCA 2007) (concurrent sentences do not necessarily start at the same time, and unless it is provided they are coterminous, they can expire on different dates.) Because gain time for some of defendant’s sentences is greater than others, if his sentences were coterminous he could be released earlier than if they were not coterminous. The trial court granted appel-lee’s rule 3.800 motion and clarified that his sentences were coterminous, and the state appeals.

The state first argues that the trial court was without jurisdiction to grant appellee’s 3.800 motion because this was not an illegal sentence; however, rule 3.800(a) allows a court at any time to correct a sentence “that does not grant proper credit for time served.” The rule could accordingly be used to make the type of correction appellant sought. The problem, however, is that there is nothing in this record, which contains all of the pertinent information about the plea, to indicate that these sentences were coterminous. Knight v. State, 832 So.2d 172 (Fla. 3d DCA 2002) (because defendant’s plea colloquy contained no indication that his sentence was coterminous with any other sentence, his motion seeking that relief was denied.) Reversed.

HAZOURI and DAMOORGIAN, JJ., concur.