author: EVANDER, J. SAWAYA, J.,

text:
    ALLAN AND CONRAD, INC., Richard K. Barcant, et al., Petitioners v. UNIVERSITY OF CENTRAL FLORIDA, etc., et al., Respondents.
    Nos. 5D07-211, 5D07-807.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.

      Stephen M. Bull and Anthony Jaglal of Bull and Associates, P.A., Orlando, for Petitioners Allan and Conrad, Inc., Robert S. Conrad and Richard K. Barcant.
    John H. Dannecker and Temple Fett Kearns of Shutts & Bowen, LLP, Orlando, for Respondent University of Central Florida Board of Trustees.
    No appearance for Respondents VOA Associates, Inc., and Richard S. Rokicki.
   EVANDER, J.

In a single non-final' order, the trial court denied petitioners’ motion for summary judgment based on the statute of limitations, denied petitioners’ motion for summary judgment based on the statute of repose, and granted respondent’s motion for partial summary judgment based on the statute of repose. Petitioners seek a writ of prohibition to review the denial of their motion for summary judgment based on the statute of limitations. They also seek certiorari review of those portions of the trial court’s order relating to their statute of repose defense. We consolidated these two actions. For the reasons set forth below, we dismiss the petition for writ of prohibition and deny the petition for writ of certiorari.

Respondent, University of Central Florida’s Board of Trustees (“UCF”), filed the underlying action against multiple defendants for what UCF contends are latent construction defects in one of the buildings constructed on UCF’s campus. Petitioners are defendants in the pending negligence and breach of contract case. Petitioner Robert Conrad was employed by Allan and Conrad, Inc., and served as the engineer of record for the project. Petitioner Richard Barcant was employed by Allan and Conrad, Inc., and served as the threshold inspector for the construction project. The project was completed in 1989 and the building was used by UCF for classrooms and offices for its College of Business Administration. UCF alleged that in 2002 it discovered that the brick veneer of the building had not been properly installed. UCF filed the underlying lawsuit on June 10, 2004.

PETITION FOR WRIT OF PROHIBITION

As an affirmative defense, petitioners allege that UCF’s cause of action was barred by the statute of limitations. The applicable four-year statute of limitations reads as follows:

An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence ....

§ 95.11(3)(c), Fla. Stat. (1989) (emphasis added).

The parties disagree as to whether the alleged construction defects were patent or latent. There is no dispute that UCF’s action would be barred if the alleged construction defects were determined to be patent defects. The trial court did not state its reason for denying petitioners’ motion for summary judgment.

The first issue for our determination is whether prohibition is available to review a trial court order which rejects an affirmative defense based on the applicable statute of limitations. In Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984), this court issued a writ of prohibition after determining that the trial court erroneously rejected an affirmative defense based on the statute of limitations. In that opinion, this court observed that the Florida Supreme Court had held that prohibition was an available remedy to review a trial court’s erroneous failure to discharge a criminal defendant pursuant to the speedy trial rule. Brogan, 452 So.2d at 942 (citing Sherrod v. Franza, 427 So.2d 161 (Fla.1988)). This court went on to state:

There is no logical distinction in regard to jurisdiction (hence, prohibition) between a civil court and a criminal court after expiration of an applicable statute of limitations. If prohibition lies in one case, it must lie in the other.

Brogan, 452 So.2d at 942.

However, in Mandico v. Taos Construction., Inc., 605 So.2d 850 (Fla.1992), our supreme court addressed the certified question of whether trial court orders denying immunity from civil suit under the worker’s compensation statute may be reviewed by a writ of prohibition. In Man- dico, the trial court had denied the defendants’ motion for summary judgment based on an immunity from liability defense. The supreme court answered the certified question in the negative and emphasized that a writ of prohibition must be employed with caution. The court quoted English v. McCrary, 348 So.2d 293, 297 (Fla.1977), where the supreme court stated:

Prohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction. In this state, circuit courts are superior courts of general jurisdiction, and nothing is intended to be outside their jurisdiction except that which clearly and specially appears so to be.

The supreme court in Mandico went on to state:

Therefore, prohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction; nor may it be used to test the correctness of a lower tribunal’s ruling on jurisdiction where the existence of jurisdiction depends on controverted facts that the inferior tribunal has jurisdiction to determine.

Mandico, 605 So.2d at 854 (emphasis in original) (citation omitted).

Based on the language in Mandico, we conclude that our decision in Brogan has been implicitly overruled. We hold that prohibition is not available to review a trial court’s order that rejects an affirmative defense based on the statute of limitations. We find further support for our decision from Panagakos v. Laufer, 779 So.2d 296 (Fla. 2d DCA 1999). In Panagakos, the trial court had denied a motion to dismiss based on a statute of limitations defense. The petitioner sought review with the appellate court by a petition for writ of prohibition. The Second District Court of Appeal acknowledged that in Swartzman v. Harlan, 535 So.2d 605 (Fla. 2d DCA 1988), it had issued a writ of prohibition where the trial court had erroneously failed to find that the underlying action was barred by the statute of limitations. However, as we do today, the Second District Court of Appeal found Mandico required a contrary conclusion. Panagakos, 779 So.2d at 297.

We dismiss the petition for writ of prohibition.

PETITION FOR WRIT OF CERTIORARI

The trial court determined, as a matter of law, that UCF’s action was not barred by the statute of repose. The purpose of a statute of repose is to cut off the right of action after a specified time measured, from the delivery of a product or the completion of work, regardless of the time of the accrual of the cause of action or the notice of the invasion of a legal right. Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361, 1363 (Fla.1992).

In this case, the applicable language from section 95.11(3)(c), Florida Statutes (1989), provides:

In any event, the action must be commenced within 15 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest.

Petitioners contend that the architect for whom they were providing services completed its contract with UCF on April 24,1989, and that UCF took actual possession of the building on May 15, 1989. No certificate of occupancy was issued, as it was not required. Additionally, there was no abandonment of construction. Accordingly, petitioners argue that the fifteen-year statute of repose period ended on May 15, 2004 — a date prior to the filing of the underlying lawsuit. UCF contends the statutory repose period did not commence until December 21,1989, the date on which the contractor completed its contract with UCF. The trial court concluded that the correct measuring point for the commencement of the repose period under the statute’s fourth prong was the latest date that any of the following entities completed or terminated their contract — the professional engineer, registered architect, or licensed contractor.

To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987).

We find it unnecessary to address the second and third elements because we find no error in the trial court’s interpretation of section 95.11(3)(c). The plain meaning of the language utilized by the Legislature supports the trial court’s conclusion. Additionally, the preamble to the statute supports the trial court’s interpretation. In three of the preamble’s paragraphs, the Legislature refers- to the date when the improvement to the real property has been completed, not to the date when a particular party’s participation in a project has been completed.

Finally, in Florida, limitations defenses are not favored. Accordingly, when there is a reasonable doubt as to legislative intent, the preference is to allow the longer period of time. See Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condo. Ass’n, Inc., 581 So.2d 1301, 1303 (Fla.1991); Angrand v. Fox, 552 So.2d 1113, 1116 (Fla. 3d DCA 1989), rev. denied, 563 So.2d 632 (Fla.1990).

The petition for writ of certiorari is denied.

Petition for Writ of Prohibition DISMISSED; Petition for Writ of Certiorari DENIED.

PALMER, C.J., concurs.

SAWAYA, J., concurs specially with opinion.

SAWAYA, J.,

concurring and concurring specially.

I agree with the analysis and holding of the majority opinion. I write separately to fully explain the reasons for my decision to dismiss the Petition for Writ of Prohibition. Those reasons are explained in my concurring opinion in O’Donnell’s Corp. v. Ambroise, 858 So.2d 1138 (Fla. 5th DCA 2003), which states:

Because prohibition is preventative, it may not be used to revoke an order already entered. English; State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974); State ex rel. R.C. Motor Lines, Inc. v. Boyd, 114 So.2d 169 (Fla.1959); Department of Children & Family Servs. v. Interest of J.C., 847 So.2d 487, 491-92 (Fla. 3d DCA 2002); Larcher v. Department of Highway Safety & Motor Vehicles, 736 So.2d 1249 (Fla. 5th DCA 1999); Morse v. Moxley, 691 So.2d 504 (Fla. 5th DCA 1997). Prohibition is also inappropriate if the parties have the right to remedy the wrong by direct appeal. English; Broward County v. Florida Nat’l Props., 613 So.2d 587 (Fla. 4th DCA 1993); Bondurant v. Geeker, 499 So.2d 909 (Fla. 1st DCA 1986).

Id. at 1139 (Sawaya, J., concurring and concurring specially). Here, the Petitioners clearly have a remedy on direct appeal to correct the wrong they perceive the trial court committed in entering the order denying their motion for summary judgment based on their statute of limitations defense. For these reasons and those expressed in the majority opinion, I agree that the Petition for Writ of Prohibition should be dismissed.

      . This statute was amended in 2006 to provide for a ten-year statute of repose. See § 95.1 l(3)(c), Fla. Stat. (2006). However, the amendment only applies to an action commenced on or after July 1, 2006. See Ch.2006-145, § 3, Laws of Fla.

      . These three paragraphs of the preamble read as follows:
      WHEREAS, architects, engineers, and contractors of an improvement to real property may find themselves named as defendants in a damage suit many years after the improvement was completed and occupied, and, ...
      WHEREAS, the availability of professional liability insurance for the engineer, architect, and contractor is more difficult to obtain if they are exposed to potential liability for an indefinite period of time after an improvement to real property has been completed and, ...
      WHEREAS, the best interests of the people of the state will be served by limiting the period of time an engineer, architect, or contractor may be exposed to potential liability after an improvement has been completed, .... (emphasis added)
      Ch. 80-322, pmbl., Laws of Fla.


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    Francisco Javier MENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2972.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.

      Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Carlos A. Ivanor, Jr., and Kellie A. Nielan, Assistants Attorney General, Day-tona Beach, for Appellee.
   TORPY, J.

Appellant challenges his convictions for sexual battery on a victim less than twelve years of age and lewd and lascivious molestation of that same victim. Appellant’s principál point on appeal relates to the admission of collateral crime evidence of a prior molestation concerning a different victim. We conclude that no abuse of discretion has been shown on this point and affirm the conviction.

Appellant met the victim, M.T., and his family, while Appellant was employed as a counselor at M.T.’s aftercare program. At that time M.T. was six years old. Appellant gave M.T. his phone number because Appellant wanted to babysit for M.T. After some time, M.T.’s parents hired Appellant to babysit for M.T. and his younger sister on a regular basis. The acts giving rise to the charges occurred during these engagements.

M.T., who was ten years old at the time of trial, testified that, during games of tag, Appellant “would hold me, stick his hands in my pants and grab my weiner,” which M.T. described as the part of his body used for “peeing.” M.T. also testified that Appellant “would sometimes suck on it with his mouth and wouldn’t let go of [him].” After this occurred on numerous occasions, M.T. reported this activity to his father, who notified authorities.

The collateral crime evidence related to an incident involving a different victim, R.C., who was twenty years old at the time of trial. R.C. testified that, when he was thirteen or fourteen years old, he encountered Appellant at a camp for dependent children. Appellant worked as a counselor at the camp. On the night in question, R.C. awakened during the night to discover someone “playing with” his genitals. Thé perpetrator returned one or two more times that night and repeated the act. Although he could not see the perpetrator’s face, he stated that he was “100 percent sure” it was Appellant because of the distinctive hat worn by the perpetrator, a cone shaped ski hat. According to R.C., Appellant was the only person at this remote camp who wore this distinctive type of hat and he was “always seen with it.” R.C. reported the incident the next morning.

R.C.’s identification testimony was corroborated by another witness, Leonard Coller, one of Appellant’s co-workers at the camp. Coller testified that, on the night R.C. was molested, three counselors were on duty — Coller, Appellant and a woman. The counselors bunked in the same quarters.- The children bunked in separate buildings. After the woman counselor fell asleep, when Coller was “half asleep” watching a movie, he recalled that Appellant left the room and was gone for an unusually long time. Eventually, Coller became concerned and went to look for Appellant. When he located him, Appellant told Coller that he had been “making sure the boys were asleep.” At the time, Appellant was wearing the “Robin Hood” type hat. In retrospect, Coller thought Appellant’s explanation was strange because Appellant was not carrying a flashlight, which the counselors typically carried in the remote location when checking on the children at night.

The trial judge conducted a pretrial hearing to determine whether to exclude the collateral crime evidence. He concluded that the evidence was “relevant as similar fact evidence and that the probative value [was] not outweighed by the prejudicial effects [sic].” The parties agree that we are obligated to affirm unless we conclude that this ruling constituted an abuse of discretion.

Our disposition of this case is governed by section 90.404(2)(b), Florida Statutes (2006), and our supreme court’s interpretation of that statute in McLean v. State, 934 So.2d 1248 (Fla.2006). Section 90.404(2)(b) authorizes the admission of collateral crime evidence in child molestation prosecutions for any relevant purpose, including to corroborate the victim’s testimony by showing that the accused had a propensity for such criminal conduct. In McLean, our high court confronted a challenge to this statute on due process grounds. In upholding the constitutionality of the statute, the court adopted several standards to ensure that the use of this type of evidence does not infringe upon the due process rights of an accused. First, the court required that the evidence of the collateral crime be proven by clear and convincing evidence. Second, the court required that the trial court balance the probative value of the evidence against the danger of unfair prejudice, pursuant to section 90.403, Florida Statutes. Third, the court cautioned that the collateral crime evidence must not become a “feature” of the trial. Finally, the court required that, upon request, the jury be instructed as to the limited purpose for which the evidence may be considered.

Here, Appellant contends that the admission of the collateral crime evidence violated the McLean standards. As to the quantum of proof adduced, citing the “weakness” in the evidence, Appellant contends that the clear and convincing standard of proof was not met. We disagree. The State offered direct proof that the crime had occurred and circumstantial proof that Appellant had committed the crime. Although R.C. could not identify Appellant, he was able to identify a unique hat that Appellant wore during the crime. R.C. confirmed that Appellant “was always seen with [the hat]” and was the only person in this remote location that had such a hat. This evidence was buttressed by the testimony of Mr. Coller, who observed Appellant leave the bunkhouse on the night in question, remain gone for an unusually long period of time and, when confronted about his absence, offer an explanation that was not credible. Coller also confirmed that Appellant wore the distinctive hat on the night of the crime. We conclude that this evidence amply satisfied the clear and convincing proof threshold.

Likewise, we disagree with Appellant’s contention that the trial court should have excluded the evidence pursuant to section 90.403. In reaching this conclusion, we are guided by a comparison of the facts at bar with those presented in McLean. There, McLean, while spending the night at his brother’s house, sexually battered his brother’s eight-year-old grandson by rubbing and inserting his finger into the victim’s “bottom.” During the trial, the court admitted collateral crime evidence of incidents involving a different victim that had occurred fourteen years earlier. That victim, Chambers, testified that, on two occasions while McLean was an overnight guest at Chambers’ home, McLean battered him by attempting to penetrate, or actually penetrating, Chambers’ anus with McLean’s penis. At the time of these assaults, Chambers was twelve years old.

Under a section 90.403 analysis, we think the case at bar presents a more compelling case for admission of the collateral evidence than in McLean. In McLean, the charged and uncharged crimes were committed fourteen years apart. The charged offense involved a relative; the uncharged offenses did not. The manner of abuse was less similar than in this case. Here, by contrast, Appellant had a similar relationship with both victims. He gained employment that would give him access to his young victims. He was a counselor to each and had custodial authority over them at the time of the offenses. The incidents of abuse were only two or three years apart and both occurred in the victims’ abodes. Finally, both incidents included the touching of the penis with the hand. Although the charged crimes and the uncharged crimes were not exactly the same, precise similarity is clearly not required when the collateral crime evidence is offered on an issue other than identity. In the final analysis, the question is whether the incidents are sufficiently similar that the probative value of the proffered evidence is not substantially outweighed by the danger of unfair prejudice, a conclusion that is entrusted to the sound discretion of the trial judge.

We have not overlooked Appellant’s contentions that the collateral crime evidence became a feature in the trial and that the cautionary instruction given by the court was not adequate. After carefully reviewing both arguments, we have determined that they lack merit and do not warrant further discussion.

As a final point, Appellant contends that the sentencing order conflicts with the trial court’s oral pronouncement related to certain costs that were stricken. The State concedes this point. Therefore, we affirm the conviction and sentence in all respects except that the “Notice of Fine and Costs” order shall be amended to conform to the oral ruling of the trial court.

AFFIRMED in part; REMANDED with instructions.

GRIFFIN, J., and GRAHAM, R., Associate Judge, concur.

      . Appellant also challenges his conviction based on double jeopardy grounds, which we determine to be without merit.

      . The supreme court expressly left unresolved the issue of whether greater similarity is required when identity is the issue for which the collateral crime evidence is offered. McLean, 934 So.2d at 1261 n. 10.


author: ORFINGER, J.

text:
    MARYLAND CASUALTY COMPANY, Petitioner, v. ALICIA DIAGNOSTIC, INC., Hassan Soltani, et al., Respondents.
    No. 5D07-547.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.

      Anthony J. Russo and Leann P. Parker, of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
    James D. Kisio of James D. Kisio, P.A., Winter Park, for Respondent.
   ORFINGER, J.

Petitioner, Maryland Casualty Company, seeks certiorari review of the trial court’s order denying its motion to dismiss. Maryland Casualty argues that the trial court departed from the essential requirements of law by allowing Respondents, the plaintiffs below, to concurrently pursue a first party breach of insurance contract claim and a bad faith claim against Maryland Casualty. We agree and quash the order on review.

Under Florida law, it is inappropriate to litigate a bad faith claim against an insurer until after any underlying coverage dispute is resolved. This is premised on the notion that if there is no insurance coverage, nor any loss or injury for which the insurer is contractually obligated to indemnify, the insurer cannot have acted in bad faith in refusing to settle the claim. Similarly, if there is no coverage, then the insured would suffer no damages resulting from its insurer’s unfair settlement practices. In addition, an insurer would be prejudiced by having to litigate either a bad faith claim or an unfair settlement practices claim in tandem with a coverage claim, because the evidence used to prove either bad faith or unfair settlement practices could jaundice the jury’s view on the coverage issue. OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So.2d 113, 115 (Fla. 5th DCA 2005).

Because we hold that it was improper to deny Maryland Casualty’s motion to dismiss without prejudice as to Respondents’ bad faith/unfair settlement practices claim, we quash the order under review and remand for further proceedings consistent herewith.

ORDER QUASHED; REMANDED.

THOMPSON and TORPY, JJ„ concur.


author: EVANDER, J.

text:
    Antwan RICKS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2112.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2007.
    Michael D. Dicembre, Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   EVANDER, J.

Petitioner seeks the issuance of a writ of habeas corpus as a result of the trial court’s failure to hold a hearing on his renewed - motion to set new bond. We deny the writ.

The trial court issued a capias for petitioner’s arrest after he failed to appear for his pre-trial conference. The capias provided that petitioner was to be held without bond. Petitioner subsequently surrendered himself voluntarily to the Orange County Jail. Petitioner then filed a motion to set aside the bond forfeiture and to reinstate the previously posted bond or, in the alternative, a motion to set a new bond. In his motion, petitioner alleged “his non-appearance was not the product of a willful decision on his part to disobey a directive by this Court, but rather the product of oversight and poor communication with the Office of the Public Defender.” This motion, as well as petitioner’s renewed motion to set a new bond, was denied without a hearing. The trial court’s written order included the notation “multiple prior F.T.A.S.”

Generally, if there is a failure to appear, the court may simply commit a defendant to custody without determining whether conditions of release are appropriate. Wilson v. State, 669 So.2d 312, 313 (Fla. 5th DCA 1996). However, if a defendant alleges “a legitimate issue as to whether [his] failure to appear was knowing and willful,” a trial court is required to conduct a hearing to determine that issue. Id. At this hearing, the defendant would have the burden of establishing that his failure to appear was not willful.

We conclude petitioner’s vague allegation that his failure to appear was “the product of oversight and poor communication” is insufficient to require the trial court to conduct a hearing on petitioner’s motion. Our denial of the petition for writ of habeas corpus is without prejudice to petitioner filing a new motion with the trial court alleging sufficient facts to support a finding that his failure to appear was not willful.

WRIT DENIED.

PALMER, C.J. and TORPY, J., concur.


author: SALCINES, Judge. WHATLEY, Judge,

text:
    Maurice TARVER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1715.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and -Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Maurice Tarver appeals his conviction for possession of cannabis with intent to sell entered as a result of a negotiated plea following the trial court’s denial of his dispositive motion to suppress. We reverse and remand for the trial court to reconsider Tarver’s motion to suppress.

The transcript of the hearing on the motion to suppress reveals that an undercover officer with the Polk County Sheriffs Office observed Tarver and another man involved in suspicious behavior in a “high crime” residential neighborhood known for narcotics sales. Another officer, Deputy Nicholas Adam Weaver, was directed to make contact with the two men and to investigate. Deputy Weaver was in an unmarked car and was wearing a sheriffs office tactical uniform when he pulled up to the intersection where the two men were standing near a dumpster. A third man who had not been previously observed by the deputy fled on foot. Tarver and Joseph Williams were standing approximately five feet apart.

When Deputy Weaver exited the vehicle and approached the two men, he observed a clear, plastic baggie on the ground next to Mr. Williams’ foot. He testified that he immediately recognized that the substance in the baggie was cannabis and ordered Tarver and Mr. Williams to lie on the ground. . Deputy Weaver stated that he handcuffed and arrested Mr. Williams for possession of cannabis.

Deputy Weaver testified that he placed Tarver in handcuffs to “control the situation” since one man had already fled, the scene. He then asked Tarver if he had anything and patted down the exterior of Tarver’s clothing. The deputy indicated that he “felt a rather large bulge in [Tar-ver’s] jacket. And at that time I determined that that was cannabis also.” Deputy Weaver testified further about the discovery of the cannabis and his method of determining that the bulge was contraband. Deputy Weaver stated that he originally decided to pat down Tarver because he had made several arrests of individuals relating to weapons charges in the same neighborhood. He expressed that •he was concerned for his safety after he observed the bulge in Tarver’s jacket. Deputy Weaver also testified about the neighborhood and his general concern for officer safety. On cross-examination Deputy Weaver conceded that his probable cause affidavit was “not one of my more thorough reports” as it excluded many of the details to which he testified. Further, he admitted that in a discovery deposition he had not mentioned the bulge in Tar-ver’s jacket or his concern for officer safety-

Tarver’s version of events was completely different from that of the deputy. He testified that he never observed the deputy locate anything at Mr. Williams’ feet. Deputy Weaver ordered the two men to get on the ground. Tarver stated that Mr. Williams was not handcuffed at the time Deputy Weaver searched him. Only after Mr. Williams was searched, did the deputy handcuff him with a plastic zip cord.

The deputy then proceeded to search Tarver who had not been handcuffed. The deputy straddled Tarver as he was lying on his stomach. While searching Tarver’s pockets, the deputy kept repeating, “[W]here’s the dope?” The deputy patted down Tarver’s back pants pockets and located money which was removed. The deputy then rolled Tarver over onto his back. Nothing was discovered in the search of the front pockets of Tarver’s pants, but when the deputy opened Tar-ver’s jacket and reached into the pocket on the inside of his jacket, he retrieved a bag of cannabis. Tarver testified that the deputy stated, “I knew you had something, I just didn’t know what it was. I knew you had something.” Tarver testified that there were no bulges in his lightweight, hooded jacket and the baggie of cannabis was actually recovered from his left, inside pocket and not his right, outside pocket as the deputy had testified.

At the conclusion of the testimony, the State asserted that Tarver had been lawfully detained in an investigative stop and the deputy had a reasonable suspicion that Tarver was armed which justified the pat-down search. The State argued that based on the “plain feel” doctrine the deputy properly seized the cannabis. The trial court denied Tarver’s motion to suppress finding that the deputy had reasonable suspicion to conduct an investigatory stop and that the cannabis found at Mr. Williams’ feet provided probable cause to arrest and search Tarver.

A trial judge’s ruling on a motion to suppress is clothed with a presumption of correctness with regard to determinations of historical fact. Fitzpatrick v. State, 900 So.2d 495, 513 (Fla.2005). It is the province of the trial judge to make determinations concerning the credibility of the witnesses and the weight of the evidence. State v. Stephens, 441 So.2d 171, 171 (Fla. 3d DCA 1983); Roth v. State, 359 So.2d 881, 882 (Fla. 3d DCA 1978). The trial court’s resolution of conflicting evidence will not be disturbed on appeal if that determination is supported by substantial, competent evidence. Boykin v. State, 309 So.2d 211, 211 (Fla. 1st DCA 1975). This court is to review de novo whether the trial court’s application of the law to the historical facts establishes an adequate basis for the trial court’s ruling. See Fitzpatrick, 900 So.2d at 513.

There was conflicting testimony concerning Tarver’s initial contact with the undercover officer which gave rise to the subsequent investigatory stop by Deputy Weaver. The trial court resolved the conflicting evidence in favor of the State and concluded that Deputy Weaver had reasonable suspicion that a crime was being committed. We agree with the trial court’s ruling on the propriety of the investigatory stop.

However, the trial court erred when it concluded that the baggie of cannabis found at Mr. Williams’ feet was in the constructive possession of both men and supplied probable cause for their arrest and the subsequent search of Tarver. Mere proximity to contraband found in a public place and in the vicinity of several individuals does not warrant a finding that a law enforcement officer had probable cause to believe that the person or persons closest to the contraband possessed it. See Edwards v. State, 532 So.2d 1311, 1314 (Fla. 1st DCA 1988); see also Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999); J.G. v. State, 881 So.2d 25, 26 (Fla. 4th DCA 2004). The trial court erred in ruling that Tarver was in constructive possession of the cannabis found at Mr. Williams’ feet, five or more feet away from where Tarver was standing.

Conflicting evidence was presented concerning the justification for the pat-down search of Tarver’s clothing. The trial court made no factual findings or legal conclusions concerning the propriety of the pat-down search or whether the “plain feel” doctrine could be used under the facts of this case to support the seizure of the cannabis and Tarver’s arrest. This court is not a fact-finding body and may not weigh the evidence to resolve conflicts. Therefore, this court cannot apply the “Tipsy Coachman” doctrine in order to affirm the trial court’s denial of the motion to suppress. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (explaining the doctrine).

Accordingly, we hold that the trial court erred in denying Tarver’s motion to suppress based on the constructive possession of the cannabis at Mr. Williams’ feet. We reverse the judgment and sentence for possession of cannabis. On remand the trial court shall review the transcript of the December 22, 2005, hearing and reconsider Tarver’s motion to suppress. Because there will be no evidentiary hearing on remand, the trial court must prepare an amended order disposing of the motion. The order shall include findings of fact and conclusions of law concerning the propriety of the pat-down search and discussing the application of the “plain feel” doctrine.

We affirm the judgment and sentence for possession of drug paraphernalia. The judgment and sentence for possession of cannabis with intent to sell is reversed, and the case is remanded with directions.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY, J., Concurs with opinion.

WALLACE, J., Concurs.

WHATLEY, Judge,

Concurring.

I agree that as appellate judges we are constrained from being fact finders or making credibility determinations.

Based on my review of the record in this matter I am compelled to make the following observations. The testimony of Deputy Weaver and Deputy Tamara Meier is replete with inconsistencies. In addition, the baggie of cannabis found at the scene was between codefendant Williams’ foot and a dumpster. Deputy Weaver described his probable cause affidavit as not being thorough and excluding details. It clearly was not thorough in failing to mention a bulge or concern for his safety. More troubling is what was included in the affidavit. It states that upon seeing the baggie of cannabis both Williams and Tar-ver were arrested and Tarver was searched. There was no basis at that juncture to arrest or search Tarver. If this statement of an arrest and search of Tarver is accurate, the case against Tarver fails. Further, the amount of cannabis causing the bulge was less than one-tenth of an ounce. What apparently escaped notice was the $1715 in cash in Taryer’s other pocket.

Lastly, the pat down of Tarver was for officer safety. E.B. v. State, 866 So.2d 200, 203-04 (Fla. 2d DCA 2004), recites the criteria for a valid pat down for officer safety:

The United States Supreme Court reasoned in Dickerson that the continued exploration of a suspect’s pocket after the officer had determined that no weapon was present did not emanate from the Terry justification for a search to ensure officer safety and protection. Because the incriminating nature of the object was not immediately apparent to the seizing officer who had to both roll the item in his fingers and squeeze it to ascertain its identity, the Supreme Court held that the seizure of the contraband violated the Fourth Amendment.

If the trial court reaches the validity of the pat down, the question will be whether the cannabis was immediately apparent.

      . Tarver also entered a plea of nolo contende-re to a charge of possession of drug paraphernalia. The motion to suppress did not seek to suppress the "blunt” cigar wrapper that was located in plain view on the ground near Tarver. We affirm the judgment and sentence for possession of drug paraphernalia without comment.

      . See Rodriguez v. State, 807 So.2d 130, 131 (Fla. 2d DCA 2002).


author: NORTHCUTT, Chief Judge.

text:
    Scott HABER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-144.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2007.
   NORTHCUTT, Chief Judge.

In February 2006, Scott Haber filed a timely motion to withdraw his plea after he admitted violating probation and was sentenced to five years in prison for battery on a disabled person. The trial court struck the motion on the ground that Mr. Haber was represented by an attorney and did not request withdrawal of counsel, citing Sharp v. State, 884 So.2d 510, 511-12 (Fla. 2d DCA 2004), and Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004).

Mr. Haber apparently then became aware that his attorney had filed a motion to withdraw plea on his behalf. On several occasions, he inquired of the clerk of the circuit court what had become of this motion. In several responses, the clerk informed Mr. Haber that his pro se motion was struck (which Mr. Haber knew) and, finally, that his attorney had not filed a motion on his behalf. Upon learning that his attorney had never filed a motion to withdraw plea, Mr. Haber sought relief pursuant to Florida Rule of Criminal Procedure 3.850, claiming that his counsel was ineffective for failing to file the motion as requested. In amendments to his motion, Mr. Haber filed the clerk’s replies to his inquiries as well as a file copy of his attorney’s motion.

The circuit court denied Mr. Haber’s motion on the ironic ground that his attorney had actually filed a motion to withdraw plea. Attached to the order denying the rule 3.850 motion was a copy of the attorney’s motion to withdraw plea, bearing a stamp indicating that it had been timely filed with the clerk. Although this document absolutely refuted Mr. Haber’s claim that his counsel was ineffective for failing to file a motion to withdraw plea, the circuit court’s failure to rule on the motion as well as the clerk’s denial that it had ever been filed remain shrouded in mystery.

Although that mystery might never be solved, we do now know that Mr. Haber’s attorney filed a timely motion to withdraw plea. Such a motion delays rendition of the judgment and sentence until the court files a signed, written order disposing of the motion. See Fla. R.Crim. P. 3.170(Z); Smallwood v. State, 911 So.2d 849, 850 (Fla. 1st DCA 2005). Because Mr. Haber’s judgment and sentence apparently never became final, Mr. Haber’s rule 3.850 motion was premature. See Brigham v. State, 950 So.2d 1274, 1276 (Fla. 2d DCA 2007). Therefore, the circuit court should have dismissed rather than denied the motion. Id.

Accordingly, we reverse the order denying Mr. Haber’s motion pursuant to rule 3.850 and remand for the circuit court to dismiss it. On remand, if it has not already done so, the circuit court shall rule upon the motion to withdraw plea filed by Mr. Haber’s counsel.

Reversed and remanded.

WHATLEY and VILLANTI, JJ., Concur.


author: FULMER, Judge.

text:
    Walter McCORMICK, Petitioner, v. STATE of Florida, Respondent.
    No. 2D07-0587.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2007.

      Walter McCormick, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Respondent.
   FULMER, Judge.

Walter McCormick petitions for certio-rari review of an order dismissing as untimely his motion to mitigate or reduce sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We have jurisdiction. See Cunniff v. State, 950 So.2d 1255, 1256 (Fla. 2d DCA 2007). Because the trial court departed from the essential requirements of law in dismissing the motion, we grant the petition, quash the trial court’s order, and remand for the trial court to consider the motion on its merits.

The only documents attached to McCormick’s petition are his motion and the trial court’s order. The order states that McCormick pleaded guilty to twelve counts of possession of child pornography and that the court sentenced him to 44.5 months in prison on count 1 followed by sex offender probation on the other counts. The trial court dismissed the motion for lack of jurisdiction — specifically, on the ground that the court did not have an opportunity to rule within the time limit provided for in rule 3.800(c).

Rule 3.800(c) reads in pertinent part:

Reduction and Modification. A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within 60 days after the imposition....

The trial court loses jurisdiction to consider the motion once the sixty-day period expires. State v. Woodard, 866 So.2d 120, 121 (Fla. 4th DCA 2004).

McCormick was sentenced on November 9, 2006, according to the trial court’s order. McCormick placed his motion in the prison mail on January 2, 2007, or Day 54. According to the trial court’s order, the motion was filed in circuit court on January 5, or Day 57. The court dismissed the motion on January 12, or Day 64.

The trial court cited to Brantley v. Holloway, 685 So.2d 31 (Fla. 2d DCA 1996), to justify the dismissal. There, defendant Brantley placed his motion to reduce sentence in the prison mail on Day 56. It arrived at the court on Day 61; however, because Day 60 was a Sunday, the motion could have been considered as arriving on Day 60. See Fla. R.Crim. P. 3.040 (requiring that if the last day of a prescribed time period over seven days in length is a Saturday, Sunday, or holiday, the time period runs until the first day that is not one of these days). The trial court denied the motion, and we affirmed because of Brant-ley’s “unexplained delay in filing the motion.” Brantley, 685 So.2d at 31 (emphasis added). We wrote:

By waiting until the last moment to mail his motion, Mr. Brantley never gave the trial court a meaningful opportunity to rule on his motion within the allotted jurisdictional time.
... [Additionally, Mr. Brantley] did not request an enlargement of time pursuant to rule 3.050.

Id. at 32.

More recently, however, we ruled in a petitioner’s favor in a situation similar to McCormick’s. In Cunniff, the movant mailed his rule 3.800(c) motion from prison on Day 51, and the document was filed in court on Day 54. 950 So.2d at 1256. Waiting until Day 61, the trial court dismissed the motion for lack of jurisdiction, citing to Brantley. In response to Cun-niffs petition, we relied on the mailbox rule adopted in Haag v. State, 591 So.2d 614, 617 (Fla.1992), which deemed the time of filing to be the point in time at which a pro se prisoner entrusts the document to prison officials for delivery. Cunniff, 950 So.2d at 1256. As such, Cunniffs motion was filed nine days before the end of the sixty-day period, and the court in practical terms had six days to review the motion. We distinguished the situation in Brantley, in which the court lost jurisdiction “hours after actual receipt of the motion.” Cunniff, 950 So.2d at 1257. We concluded: “Under these circumstances, the trial court should have either considered the motion on its merits or extended the time for considering the motion.” Id. We quashed the trial court’s order and remanded for consideration on the merits. Id.

Based on the mailbox rule of Haag, McCormick’s motion was filed six days before the expiration of the sixty-day period. In practical terms the court had three days to resolve the motion. Although three days is a relatively brief span of time and although we acknowledge that trial judges are extremely busy, it seems apparent to us that the merits of McCormick’s simple l)¿-page motion could have been resolved within a three-day period. Furthermore, unlike in Brantley, in which the delay in filing was “unexplained,” McCormick made at least a prima facie statement of his reasons for the delay: being in transport with the Department of Corrections (forty days) and his inability to immediately access the prison law library (eleven days). Cf. Daniels v. State, 892 So.2d 526 (Fla. 1st DCA 2004) (trial court should not have denied motion for enlargement of time when ground was movant’s need to schedule time in prison library and obtain assistance of inmate law clerk). Finally, both Brantley and Cunniff allow for the court to sua sponte extend the time for considering the motion, without the need for the defendant to fíle a motion for enlargement of time under rule 3.050. See also Moya v. State, 668 So.2d 279, 280 (Fla. 2d DCA 1996) (during the 60-day period, the trial court “had jurisdiction to determine whether it should enlarge time under the[] circumstances to review the timely-filed motion”). As already noted, in Cunniff, we concluded that the court should have either considered the motion or extended the time needed to consider the motion.

Because the trial court could have resolved McCormick’s motion in three days or, if this had been impossible, had sufficient time to extend the period for consideration, we follow Cunniff and grant McCormick’s petition, quash the trial court’s order, and remand for the trial court to consider the motion on its merits.

CASANUEVA and CANADY, JJ., Concur.

      . We assume that McCormick’s plea was open. If it was a bargained plea, McCormick would not be able to use a rule 3.800(c) motion to avoid the burden he agreed to. See State v. Brooks, 890 So.2d 503, 505 (Fla. 2d DCA 2005).

      . The gist of the motion is that McCormick had no prior criminal record, was remorseful, had been cooperative with law enforcement, and was “not a bad person, just a stupid one.”


author: FARMER, J.

text:
    Alicia VEGA, Petitioner, v. Tracy Lynette SWAIT, Respondent.
    No. 4D07-932.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2007.
    Charles A. Morehead, III, of Moody Jones Montefusco Ingino & Morehead, P.A., Plantation, for petitioner.

      Anthony J. Alfero, Fort Lauderdale, for respondent Tracy Swait.
   FARMER, J.

The current wife of a former husband seeks certiorari review of an order denying her motion for a protective order. His former wife brought a contempt proceeding against him for failure to pay alimony. She sought privacy protection from discovery of her personal finances. We grant the petition, quash the decision, and require protection against the discovery of her finances.

Tracy and John Swait concluded a marital settlement agreement in their dissolution of marriage action. After final judgment Tracy filed two motions for contempt against John for failure to pay alimony. Alicia Vega is John’s current wife. Vega was summoned to give evidence at a deposition. She appeared and furnished requested documents. She submitted herself to testimony. Tracy asked about her personal finances. She answered questions about financial transactions with John, but she objected to and refused to answer questions about her personal finances unrelated to any financial dealings with John. She sought a protective order from further such inquiry by Tracy. The motion was denied.

Certiorari is appropriate for pretrial review of orders concerning discovery only when the order departs from the essential requirements of law and leaves the complaining party with no adequate remedy by appeal. See Martin-Johnson Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (“A nonfinal order for which no appeal is provided ... is renewable by certiorari ... where order departs from essential requirements of law and thus causes material injury to petitioner throughout remainder of proceedings below, effectively leaving no adequate remedy on appeal.”); Bared & Co. Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996) (indispensable ingredients to common-law certiorari sought to review pretrial orders of trial courts include irreparable injury to petitioner that cannot be corrected on final appeal caused by departure from essential requirements of law); see also Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA 1998) (holding that for purposes of determining whether party would be irreparably harmed by discovery order such that order is reviewable by common law certiorari, discovery of financial worth information that is not material to any issue reasonably likely to be contested and that has been sought primarily to embarrass and bring undue pressure on litigant would be incurable by any possible action court could take on final appeal). We conclude that the present order meets these requirements.

We have previously said:

Unless there is some showing on the part of the wife that the husband terminated or reduced his employment in order to keep from paying alimony and that he was relying upon his present wife for his living expenses in completion of the scheme, we can see no possibility of relevance concerning the present spouse’s income.

Schneider v. Schneider, 348 So.2d 612, 612 (Fla. 4th DCA 1977); see also Hayden v. Hayden, 662 So.2d 713, 716 (Fla. 4th DCA 1995) (if wife shows that husband terminated or reduced employment to keep from paying alimony and was relying on present wife for living expenses, or that husband transferred significant assets to present wife and thus cannot satisfy his support obligations, present wife’s finances are relevant to question of former husband’s ability to pay alimony).

To make Vega’s finances discoverable, Tracy was required to show that John ended or reduced employment to evade paying alimony and that he was relying upon Vega for his living expenses. As we stated in Hayden:

[I]f there is a showing that the husband has transferred significant assets to the wife’s name, and as a result has no assets of his own with which to satisfy his support obligations, then the present wife’s finances are relevant to the question of the ability of the husband to pay alimony and child support to the former spouse.

662 So.2d. at 716. In this case, Tracy failed to show that John transferred assets to Vega in order to avoid his alimony obligation. While she did present evidence suggesting that John was relying on Vega for some of his living expenses, Tracy never attempted to show that John reduced employment to evade alimony. Tracy argues merely that he continues to operate the family business but it no longer generates income to him. Without some showing of reduced employment simply to evade his duty to pay alimony, the trial court was required to grant protection from this discovery.

Certiorari granted, order quashed.

STONE and MAY, JJ., concur.

      . See Art. I, § 23, Fla. Const. ("Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”); see also Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985) (recognizing individual's legitimate expectation of privacy in private bank accounts and financial records); Borck v. Borck, 906 So.2d 1209 (Fla. 4th DCA 2005) (protecting financial information of persons without relevant, compelling reason to require disclosure).


author: THOMPSON, J. GRIFFIN, J.,

text:
    Jimmy Douglas JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-517.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Jimmy Douglas Jackson was convicted of aggravated battery with a deadly weapon or causing bodily harm for stabbing Bryan Simmons with a knife on 10 July 2005. After a January 2006 trial, the jury found Jackson guilty as charged, and he was sentenced to seven years’ incarceration. Jackson appeals the admission of an eyewitness’s statement to the police, which differed from the witness’s account at trial. We reverse.

The victim, Bryan Simmons, testified. He had been convicted of three felonies and three crimes involving dishonesty or false statements, and was unemployed and living in a Volusia County motel on 10 July 2005. That night, he went to a homeless camp located in woods near International Speedway Boulevard. There were five or six people there, including his friend Steven Claflin. Jackson, whom Simmons had known for a few years and with whom he fought in 2003, was also there. Simmons drank about four beers while the other campgoers drank Listerine and cooked stew. A fight suddenly broke out between Claflin and Jackson, but Simmons broke it up. Everyone settled down and resumed talking for awhile, but Jackson, without provocation, “just jump[ed] up and ... hit[ ] [Simmons]” with a six- or seven-inch butcher knife. Simmons ran and was hospitalized for two days.

Claflin, who knew Jackson and Simmons before the stabbing occurred, presented a different story. He lived at the campsite in the woods at the time. He drank at least a case of beer that day and started drinking at nine that morning. After their fistfight that night, Jackson and Claflin sat down, had a beer, and laughed it off. Claf-lin did not recall if Simmons was there during their fight, but Simmons was there afterward. Simmons and Jackson started to argue; Claflin was not surprised, because they had fought with each other the whole time Claflin had known them. Claf-lin did not see the stabbing:

A. I was — had turned around to tend the fire, and I heard a little scuffle going on behind me; I didn’t pay any attention. I turned around and looked and Mr. Simmons was running out of camp, and Jimmy was standing with a knife in his hand.
Q. ... And did you actually see him get up and stab him ... ?
A. No, I did not.

That night, Claflin and Jackson were arrested. Claflin told the police what Jackson had said after Simmons ran— Jackson had really f* * * *d up and should not have done it. At trial, Claflin could not describe much about the police’s arrival; he “was kind of getting into a blackout situation, abundant alcohol.” He did not recall talking to the police at that point, did not see what Jackson did with the knife, did not recall telling anyone that Jackson had thrown it away, and did not know who was at the campsite that night. At trial, he said the “kitchen-type” knife was eight or ten inches long, but he did not know what the handle looked like. He recalled giving a statement to Inspector Ron Morgan in August 2005 in which he said the knife had a wooden handle with a serrated edge; the knife introduced in evidence looked vaguely familiar, seemed similar to the one that Jackson had that night, and could have been one of many in camp.

Over objection, Investigator Morgan testified that he had recorded Claflin’s statement to the police, in which Claflin said he saw Jackson stab Simmons. The court overruled a timely hearsay objection because it held that the statement, as a “prior inconsistent statement,” was admissible under an exception to the hearsay rule. In Claflin’s statement, Claflin said that, while everyone was drinking, Claflin looked up to see a quick motion and saw Jackson go over and stab Simmons.

The State addressed Claflin’s August 2005 statement twice in closing argument:

[TJhe victim himself says that it was the Defendant who did it. .We have Steve Claflin who also says — says here today, that “Well, I really didn’t see it; my back was turned, but I heard a commotion, turned around and the Defendant was the one standing there with a knife in his hand.” That’s not quite what he told Investigator Morgan, but I hope that sometimes you can look at what happens in a courtroom and not only— you have to look at the overall picture. And I hope you noticed when Mr. Claflin walked in and walked out of this room, who was he looking at? What was his focus? If you did, you’d understand why his testimony was a little bit different than it was back last August, and last August what he said when the investigator went to the camp, talked with him and recorded what he said. And he very clearly said, “I saw — [ JThere was a verbal argument going on between Mr. Simmons and the Defendant, and then the Defendant jumped up and stabbed the — [ jstabbed the victim,” which is exactly what the victim says what happened.

Later, the State reiterated that Simmons’s testimony and Claflin’s testimony during trial “and what he said in August,” taken with the evidence in case, showed it had proved that Jackson committed aggravated battery.

On appeal, the State does not dispute the statement was improperly admitted. Rather, it argues that the error was not preserved and any error in admitting the statement was harmless. We disagree. The error was preserved, and we cannot conclude that it was harmless.

Admitting Claflin’s August 2005 statement was an abuse of discretion. It was not admissible as substantive evidence as a prior inconsistent statement because it was not “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” § 90.801(2)(a), Fla. Stat. (2005); Pearce v. State, 880 So.2d 561, 569 (Fla.2004). “[A] statement given under oath during a police investigation is not a statement given at an ‘other proceeding’ and consequently is not admissible as substantive evidence under section 90.801(2)(a).” Pearce, 880 So.2d at 569 (citing State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986)); Thomas v. State, 697 So.2d 926, 927 (Fla. 5th DCA 1997). Similarly, the State did not properly use the statement to impeach Claflin. Before questioning Claflin about the contents of a previous inconsistent statement, the State needed to call to his attention the time, place, and person to whom the statement was made. See Pearce, 880 So.2d at 569-70. Because the State never presented Claflin the opportunity to address the pri- or statement, the State was not permitted to introduce extrinsic evidence of the prior inconsistent statement. See id. at 570 (quoting § 90.614(2)). Even if the State had laid the proper foundation, the theory underlying the admissibility of a prior statement as impeachment “is not that the prior statement is true and the in-court testimony is false, but that[,] because the witness has not told the truth in one of the statements, the jury should disbelieve both statements.” Id. at 569 (citing Charles W. Ehrhardt, Florida Evidence § 608.4 (2002 ed.)).

The State, as the beneficiary of the error, must demonstrate beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The statement admitted into evidence was classic hearsay. It was admitted not merely to impeach Claflin, but as substantive evidence; the State encouraged the jury to consider Claflin’s August 2005 testimony as the real story. Because there was little physical evidence and no independent eyewitness testimony other than Claflin’s to corroborate Simmons’s account, their credibility was a crucial issue. Admitting Claf-lin’s prior statement tended to bolster Simmons’s credibility. See, e.g. Carter v. State, 951 So.2d 939, 944 (Fla. 4th DCA 2007). The prejudicial effect was compounded by its introduction through Investigator Morgan, a 32-year police veteran, whom the jury may have viewed as a disinterested, objective, and credible witness. Id.

In light of the uncertainty surrounding Simmons’s versions of the story, the differences between Simmons’s and Claflin’s accounts, testimony about animosity between Simmons and Jackson, and Claflin’s substantial consumption of alcohol on the day the stabbing occurred, there is a reasonable possibility that admitting Claflin’s pri- or statement affected the jury’s verdict.

Accordingly, we REVERSE and REMAND for a new trial.

MONACO, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because I do not believe the trial court erred.

The testimony of the investigator concerning the statement made to him by Steven Claflin that was different from his trial testimony was admissible as extrinsic evidence of a prior inconsistent statement, so long as the proper predicate had been laid as required by section 90.614(2), Florida Statutes (2005). The only objection was “hearsay,” to which the State replied that it was a “prior inconsistent statement.” No objection was made to the lack of the required statutory predicate for admission of the prior inconsistent statement. See Andrews v. State, 263 So.2d 846 (Fla. 1st DCA 1972). Nor was there any objection to the State’s apparent reference to the prior consistent statement as substantive evidence during closing argument.

      . § 784.045(l)(a)l„ 2., Fla. Stat. (2005).

      . The police could not find the knife initially, but after Simmons was released from the hospital, he located it at the camp and turned it over to the police.

      . The State introduced into evidence Simmons’s medical records, which suggested that his story about the stabbing varied somewhat — it occurred in a bar, or while breaking up a fight, or while he was running away after breaking up a fight.

      . Twenty-four twelve-ounce beers.


author: CASANUEVA, Judge.

text:
    Richard H. DORSEY, Appellant, v. Debra DORSEY, a/k/a Debra Sementa, Appellee.
    No. 2D06-5120.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2007.

      Patrick F. Gaffney, Clearwater, for Appellant.
    K. Dean Kantaras, Palm Harbor, for Appellee.
   CASANUEVA, Judge.

Richard H. Dorsey, the former husband, appeals a postdissolution order requiring him to invade what he claims are exempt assets to pay an alimony arrearage to Debra Dorsey, his former wife. We agree with Mr. Dorsey that the trial court erred in part.

At the time Mr. and Mrs. Dorsey were divorcing, they had a marital debt to the Internal Revenue Service for an undetermined, but likely substantial, amount of unpaid taxes for the years 1997-2001. With the advice of individual counsel, the parties reached a mediated settlement agreement to file joint tax returns for these years and, once their tax liability was determined, to negotiate with the IRS for a repayment schedule. Further, each agreed two marital assets that were titled solely in Mr. Dorsey’s name, a Merrill Lynch IRA and a Split-Dollar Agreement with a former employer that would provide substantial funds in the near future, would be used to secure repayments to the IRS, essentially “freezing” these assets for use in satisfying the tax indebtedness. Once the IRS debt was satisfied with these monies, the remaining funds, if any, were to be then equally divided. The marital settlement agreement also provided that Mr. Dorsey would pay Mrs. Dorsey $3000 a month in nonmodifiable alimony until he reached the age of 65.

Later, the parties, with advice of counsel, agreed to modify their settlement agreement in one respect. The new modification provided that the Merrill Lynch IRA, the Split-Dollar Agreement, and a third account, an SCI retirement plan, would be awarded to Mr. Dorsey. In consideration for the award of these marital funds totaling approximately $749,000, Mr. Dorsey agreed to be solely responsible for all the taxes, interest, and penalties resulting from the parties’ jointly filed income tax returns for 1997-2001. Additionally, Mr. Dorsey agreed to hold Mrs. Dorsey harmless from all liability to the IRS for these tax years. It was upon these terms that the final judgment of dissolution was entered.

Subsequent to entry of the dissolution decree, Mr. Dorsey suffered both economic and employment setbacks that caused a growing alimony arrearage. Claiming $58,000 in unpaid alimony, Mrs. Dorsey moved to enforce the alimony agreement and for an order holding Mr. Dorsey in contempt.

At the hearing on Mrs. Dorsey’s motions, Mr. Dorsey testified about his current financial condition and the status of his repayment plan to the IRS. His income, about $200,000 a year at the time of the dissolution, was now about $36,000 a year. Pursuant to his agreement with the IRS, he paid the government $5000 a month, but interest and penalties continued to accrue on the unpaid balance, which currently exceeded $360,000. Because the parties’ settlement agreement required that he use the funds totaling $749,000 to satisfy the IRS debt, he contended that those funds were exempt and could not be used for alimony in derogation of the parties’ contract. He was using those funds solely to repay the IRS debt, and the remaining balances were earning interest for future payments to the IRS. He did offer as partial payment of the arrearage $20,000 he had in a separate business account. Mr. Dorsey’s evidence was not disputed. Thus, the evidence showed that Mr. Dorsey was not in compliance with his alimony obligation but was in compliance with the agreement to satisfy the tax liability by using those funds identified and intended by the parties for that purpose.

Relying on Siegel v. Siegel, 700 So.2d 414 (Fla. 4th DCA 1997), the trial court did not find Mr. Dorsey in contempt but did find that he had the financial ability to pay the $58,000 alimony arrearage. To satisfy the alimony arrearage, the trial court.ordered Mr. Dorsey to pay Mrs. Dorsey the $20,000 held in the separate business account, with the remaining amount due her paid from the funds set aside to pay the parties’ joint IRS indebtedness. We affirm that part of the trial court’s order requiring payment of the $20,000 from the separate business account; we reverse that part of the order requiring payment by invading the funds held to satisfy the IRS.

At the time of their dissolution, Mr. and Mrs. Dorsey executed a binding marital settlement agreement as well as binding modifications to that contract. These agreements were subsequently made enforceable by court order. These agreements contained the following mutually binding obligations:

1. Mr. Dorsey would pay $8000 per month as alimony that could not be modified until Mr. Dorsey reached the age of 65 years.
2. The parties identified certain marital assets and agreed that these assets were to be used to pay the parties’ joint and substantial tax liability for 1997-2001.

“A marital settlement agreement entered into and ratified by a trial court is subject to interpretation as a matter of law like any other contract.” Hobus v. Crandall, 32 Fla. L. Weekly D479, — So.2d -, 2007 WL 486452 (Fla. 2d DCA Feb. 16, 2007). In Hobus, we agreed with the former husband that the trial court erred by effectively rewriting the parties’ marital settlement agreement, and we reversed its order that the former husband sell a piece of property under conditions not mentioned in that agreement. Mr. Dorsey brings us a similar error. As we noted in Hobus, “courts cannot rescue parties from the unintended consequences of knowingly made, and otherwise binding, contractual obligations.” Id. at D480, at-. Mrs. Dorsey made a binding agreement with Mr. Dorsey that the exempt monies would be used solely to satisfy the parties’ IRS debt. If the unintended consequence of this agreement is that these funds are not available to pay her alimony, neither the trial court nor this court can rescue her from this situation. She must look to other available sources, if any, to satisfy the alimony arrearage.

Finally, in regard to the IRA portion of the exempt funds, we comment on the trial court’s reliance on Siegel, 700 So.2d 414. In Siegel, the Fourth District relied on Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), to affirm an order of the trial court requiring the former husband to use IRA monies to pay a purge amount to avoid a finding of contempt. We agree with our sister court that noted that “[u]n-der Chapter 61 and Bowen, an IRA is not a safe haven where a former spouse can hoard assets while, at the same time, argue that he does not have the present ability to pay a purge amount in a contempt order arising from the non-payment of obligations due under the chapter.” Siegel, 700 So.2d at 415. We find Siegel distinguishable on its facts from the instant situation because of the parties’ binding agreement that the IRA, part of the exempt funds, would be used only to satisfy the IRS. Once the IRS debt is satisfied, any remaining balance in that IRA, under Siegel, will be available to Mr. Dorsey to pay alimony.

We are not unmindful of the fact that Mr. Dorsey also made a binding agreement to pay Mrs. Dorsey unmodifiable alimony of $3000 a month until he reaches 65. However, the final order we review requires him not only to breach the contract but could subject him to penalties, including potential incarceration, for failure to repay the IRS. In such an event, his ability to earn income that could be used to pay the alimony obligation would also be at risk.

Affirmed in part, reversed in part, and remanded for entry of an amended final order in accordance with this opinion.

SILBERMAN and WALLACE, JJ., Concur.


author: LAWSON, J.

text:
    Harlan R. MACKALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-565.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Harlan R. Maekall, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Harlan Maekall appeals from the trial court’s order summarily denying his sworn Florida Rule of Criminal Procedure 3.800(a) motion, in which he seeks additional jail credit. The additional credit that Maekall seeks is for time that he spent in the State of Maryland, in the custody of Maryland’s Division of Corrections. Maekall is not legally entitled to credit against his Florida sentence for time he spent incarcerated in another state. Kronz v. State, 462 So.2d 450, 451 (Fla.1985). Because it is clear from Mackall’s motion that the trial court chose not to exercise its discretion at sentencing by awarding this additional out-of-state credit, see Gallinat v. State, 941 So.2d 1237, 1240 (Fla. 5th DCA 2006), Mackall’s motion was properly denied.

AFFIRMED.

PALMER, C.J., and TORPY, J., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    Johnny L. BIRCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1162.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2007.
    Johnny L. Birch, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his rule 3.850 motion for post-conviction relief based upon alleged ineffective assistance of counsel. We reverse because the record does not conclusively refute Appellant’s allegations.

Appellant alleges that the State offered to allow him to plead guilty to unlawful sale and delivery of cocaine in exchange for an agreed sentence of 18 months in prison. Appellant further alleges that he accepted this offer, communicated his acceptance of the offer to his trial counsel, but that his counsel did not inform the State that he had accepted the offer. As a result, Appellant contends that the State withdrew the offer and he subsequently was forced to accept a plea offer of five years in prison.

These allegations state a prima facie claim of ineffective assistance of counsel. White v. State, 731 So.2d 74 (Fla. 2d DCA 1999). Therefore, unless conclusively refuted by the record, Appellant is entitled to an evidentiary hearing.

We therefore reverse the lower court’s order and remand this cause with instructions that the lower court either conduct an evidentiary hearing on the claim or attach specific portions of the record that conclusively refute Appellant’s allegations.

REVERSED AND REMANDED.

ORFINGER and TORPY, JJ., concur.

GRIFFIN, J., concurs and concurs specially with opinion.

GRIFFIN, J.,

concurring specially.

In my view, the record does refute Appellant’s claim that he agreed to accept the eighteen month offer but that his attorney failed to communicate his acceptance to the State. Whether it conclusively refutes the claim is hard to say, given the incoherence of Appellant’s various statements and the sparse record before us. The trial court did conduct a pretty thorough hearing. Maybe sworn testimony of Appellant’s counsel or a transcript of the September 19 hearing would resolve any doubt.


author: PER CURIAM.

text:
    Lois G. JOHNSON and Thomas L. Johnson, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2D05-4693.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.

      James B. Loper, Tampa, for Appellants.
    Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker P.A., Tampa, for Appellee.
   PER CURIAM.

Upon consideration of Appellants’ motion for rehearing en banc, or in the alternative, motion for written opinion and certification filed March 20, 2007, it is

ORDERED that Appellants’ motion is granted to the extent that the opinion dated March 7, 2007, is withdrawn and the attached opinion is substituted therefor. In all other respects, the motion is denied.

Lois G. Johnson and Thomas L. Johnson appeal the trial court’s order granting Allstate’s motion to dismiss their complaint. The trial court found that the Johnsons’ uninsured motorist action against Allstate was barred by South Carolina’s three-year statute of limitations. Although we agree that this was error, we affirm the trial court’s dismissal because South Carolina law requires that the Johnsons file an action against the tortfeasor prior to filing the uninsured motorist complaint, an act that they have failed to do.

The Johnsons are residents of South Carolina and obtained uninsured motorist protection through an auto insurance policy pm-chased from Allstate in South Carolina. On December 25, 2000, while visiting Pasco County, Florida, the Johnsons were involved in an automobile accident with Kimberly Manion, an uninsured motorist. On December 10, 2004, the John-sons filed their uninsured motorist claim against Allstate in Pasco County but did not join Manion as a party defendant. The trial court dismissed the complaint, concluding that the South Carolina statute of limitations applied and that since the action was not filed within the three-year period provided by South Carolina law, the claim was barred. It is this dismissal that is the subject of this appeal.

Florida follows the doctrine of lex loci contractus in determining the applicable statute of limitations. Lumbermens Mut. Cas. Co. v. August, 530 So.2d 293, 295 (Fla.1988). “That rule provides that the laws of the jurisdiction where the contract was executed govern interpretation of substantive issues regarding the contract.” Id. at 295. Because the contract in this case was executed in South Carolina, we look to South Carolina law to determine whether the action is barred by a statute of limitations. South Carolina courts first determine whether the statute is procedural or substantive. If procedural, the limitations period of the forum controls (lex fori); if substantive, the limitations period of the state where the injury occurred controls (lex loci). See Hughes v. Doe, 281 S.C. 488, 316 S.E.2d 383, 384 (1984); see also Collier v. Varco-Pruden Bldgs., a Div. of United Dominion Indus., Inc., 886 F.Supp. 528 (D.S.C.1995). Although Florida courts generally regard statutes of limitation as procedural, see Houck Corp. v. New River, Ltd., Pasco, 900 So.2d 601, 603 (Fla. 2d DCA 2005), we need not analyze this further because both the lex fori and the lex loci in this case are in Florida. As a result, Florida’s five-year statute of limitation applies and the suit was timely filed.

However, Allstate also contends that under South Carolina law, the John-sons were required to establish the liability of the tortfeasor prior to filing the uninsured motorists claim with Allstate. This issue must be resolved with reference to the rule of lex loci contractus.

[I]n determining which state’s law applies to contracts, we have long adhered to the rule of lex loci contractus. That rule, as applied to insurance contracts, provides that the law of the jurisdiction where the contract was executed governs the rights and liabilities of the parties in determining an issue of insurance coverage.

State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.2d 1160, 1163 (Fla.2006). South Carolina follows the same rule. See Lister v. NationsBank of Del., N.A., 329 S.C. 133, 494 S.E.2d 449, 455 (1997) (“ ‘[A] contract as to its validity and interpretation is governed by the law of the place where it is made, the lex loci contractus.’ ” (quoting Livingston v. Atlantic Coast Line R.R. Co., 176 S.C. 385, 180 S.E. 343, 345 (1935))). Because the contract was executed in South Carolina, South Carolina law must be applied.

Under South Carolina law, an insured may not bring an action against an insurer on the uninsured motorist provision of the insured’s auto insurance contract unless the insured has brought an action against the at-fault driver. See S.C.Code § 38-77-160 (Supp.2005); Williams v. Selective Ins. Co., 315 S.C. 532, 446 S.E.2d 402, 404 (1994) (“[Ajbsent compliance with the requirement that pleadings in the action establishing liability be served on the underinsured carrier, Williams cannot maintain her action against Insurer.”); see also Ex parte Allstate Ins. Co., 339 S.C. 202, 528 S.E.2d 679, 680 (2000) (“The requirement of service in the ... statute is absolute.”). Having failed to file pleadings establishing the liability of the tortfeasor as required by South Carolina law, the Johnsons may not bring an action for breach of contract on the uninsured motorist provision of their contract with Allstate.

The Johnsons point out that Allstate did not argue the South Carolina requirement to establish the liability of the tortfeasor prior to bringing the action against Allstate as a defense below. Allstate’s failure to do so, however, is not fatal to its position. While we do recognize that the general rule is that “if a claim is not raised in the trial court, it will not be considered on appeal,” Dade County Sch. Bd. v. Radio Station WQBA 731 So.2d 638, 644 (Fla.1999), in some cases, even if a trial court’s ruling is based on erroneous reasoning, its decision will be upheld “if there is any basis which would support the judgment in the record,” id. This has come to be known in Florida as the “tipsy coachman” doctrine. See Home Depot U.S.A. Co. v. Taylor, 676 So.2d 479, 480 (Fla. 5th DCA 1996).

If an appellate court, in considering whether to uphold or overturn a lower court’s judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court.

Dade County Sch. Bd., 731 So.2d at 645. Here, the trial court reached the right result, albeit for the wrong reasons. Because the cause of action is barred under South Carolina law, we affirm the trial court’s order dismissing the Johnsons’ complaint.

Affirmed.

DAVIS and CANADY, JJ., and CRENSHAW, MARVA L., Associate Judge, Concur.


text:
    Alexander D. WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1740.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Chief Judge.

A jury found Alexander Watson guilty of possession of a firearm or ammunition by a convicted felon. See § 790.23(l)(a), Fla. Stat. (2002). At trial, Watson moved for a judgment of acquittal on the ground that the State failed to prove that he constructively possessed the items. We agree that the evidence was insufficient to support Watson’s conviction. We reverse with directions to discharge him.

According to the State’s evidence at trial, two Fort Myers police officers were patrolling an apartment complex just after midnight and came upon a car parked in such a way that it blocked the thoroughfare. Watson was in the driver’s seat and another man sat in the rear behind the front passenger seat. The officers decided to investigate why the car was oddly parked. They thought it might be disabled or that the occupants might require assistance. One officer approached the car on the driver’s side and the other walked to the passenger side. The officer on the passenger side immediately noticed a handgun on the front floorboard, protruding from under the passenger seat. Employing police code words, he alerted his fellow officer to the presence of the gun. The officers drew their weapons and ordered both occupants to step out of the car.

The officers searched the car and removed a .45 caliber handgun. They also discovered .22 caliber ammunition in the glove box and a shotgun, a rifle, and ammunition in the trunk. The evidence showed that the car was a rental. Watson said that he had borrowed it from his girlfriend.

Watson was not in actual possession of the guns or ammunition, so the State had to prove that he constructively possessed the items. See Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006). To do so, the State had to show beyond a reasonable doubt that Watson knew of the presence of the illegal items and was able to exercise control over them. See id.; Downard v. State, 793 So.2d 83, 84-85 (Fla. 2d DCA 2001). Because Watson was in a jointly occupied vehicle, those elements could not be inferred from his mere proximity to the contraband but had to be shown by independent proof. Hargrove, 928 So.2d at 1256; K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004); Downard, 793 So.2d at 84.

We note that the State did not introduce any evidence to prove Watson had constructive possession of the contraband found in the trunk. On appeal, it does not contend that the conviction was based on Watson’s possession of those items. We therefore focus on the evidence concerning the gun and ammunition found in the passenger compartment.

Although the handgun was somewhat hidden under the passenger seat, the officers testified that about three-quarters of its handle was visible. One of them opined that anyone sitting in the driver’s seat would have been able to see the handle. Additionally, as Watson was being escorted to the patrol car, a bystander asked him why he was being arrested. Watson replied that the officers said there was a gun in the car. According to the police officers, he made this statement before he was told that his arrest pertained to a firearm. Thus, the State presented evidence from which Watson’s knowledge of the firearm could be inferred independent of his proximity to it. Concerning the ammunition, however, the State presented no evidence that Watson knew of its presence in the glove compartment.

Even if the State’s evidence was sufficient to prove that Watson knew about the gun, it offered no evidence to prove the control element other than Watson’s mere proximity to it. The officers testified that the gun was closer to the driver than to the passenger-side door and that it was within the driver’s reach. In Ras v. State, 610 So.2d 24 (Fla. 2d DCA 1992), we reversed a conviction based on constructive possession of drugs when the State presented evidence that the defendant knew of the presence of the contraband but failed to establish his control of it. We noted that “[b]ecause Ras did not have exclusive control of the area, it may not be inferred that he had control of the cocaine without other incriminating statements or circumstances which tend to support that inference.” Id. at 25; see also Cruz v. State, 744 So.2d 568, 569 (Fla. 2d DCA 1999) (ruling that the State failed to prove the element of control when the only evidence on that point was that drug paraphernalia was found four to five inches from the convicted driver’s foot); Smith v. State, 687 So.2d 875, 878 (Fla. 2d DCA 1997) (holding that constructive possession of a weapon in a jointly occupied car was not proven when no evidence such as fingerprints tied the defendant to the gun). Here, the State did not link the illegal items to Watson by fingerprints, by an admission, or by any other means.

The State failed to present the necessary independent proof that Watson had control over the firearm. As to the ammunition, the State failed to prove either that Watson knew of its presence or that he had control of it. Accordingly, we reverse his conviction for possession of a firearm or ammunition by a convicted felon.

Reversed and remanded with directions to discharge Watson.

ALTENBERND and LaROSE, JJ., Concur.

      . Watson filed a motion to suppress on the ground that the officers’ stop of him was illegal. The circuit court denied his motion. He argues this issue on appeal, but we need not discuss it because of our resolution of Watson's other point.


author: LaROSE, Judge.

text:
    Thomas C. JESSEE, Appellant, v. Tiffany M. JESSEE, Appellee.
    No. 2D06-4186.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Michael J. Park and Joseph R. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellee.
   LaROSE, Judge.

Thomas C. Jessee, the Husband, appeals the final judgment dissolving his marriage to Tiffany M. Jessee, the Wife. He argues that the trial court erred in denying him permanent alimony and in calculating the Wife’s income. We affirm the final judgment.

The couple married in 1992, after the Wife graduated from college. Thereafter, she attended medical school in Virginia, during which time the Husband earned about $17,000 per year as the women’s basketball head coach at Bluefield State College. They lived on the Husband’s income and the Wife’s substantial student loans. The Wife completed medical school in 1997. The Husband was then earning $27,000 a year at Bluefield State College and was a top women’s basketball coach.

The couple moved to Clearwater for the Wife’s medical internship and residency. The Husband secured a coaching position at a local high school; his starting salary was $27,000 a year. At the end of the Wife’s medical residency, the Husband was earning $34,000 per year as women’s basketball head coach at the University of Tampa. The Wife pursued a medical fellowship in Miami; the Husband remained in Clearwater and in his coaching position at the University of Tampa during her fellowship year.

In 2004, the Wife began work at Sun-coast Hospital as a bariatric surgeon. Her starting salary was $200,000 a year. The hospital also provided a student loan forgiveness benefit. The Wife earned $272,413.38 in 2004 and $280,119.30 in 2005. The Husband’s income was $34,202.96 in 2004 and $39,000 in 2005. In 2006, the Wife’s income decreased significantly because of a new Medicare rule that reimbursed for bariatric surgery only if performed at a “Center of Excellence,” which Suncoast Hospital was not. At the time of the final hearing, the Wife had applied for but had not obtained surgical privileges at Palms of Pasadena Hospital in St. Petersburg, the area’s then only Center of Excellence.

The Husband sought permanent periodic alimony of $4000 per month, the amount he was receiving from the Wife as temporary alimony. Under section 61.08(2), Florida Statutes (2006), the trial courts must consider several factors in deciding whether to award permanent periodic alimony:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

The trial court made thorough factual findings in relation to each factor. The record supports those findings. For the first ten years of the marriage, the couple’s standard of living was modest and frugal. Their income did not increase significantly until the last twenty-one months of their marriage. Based on the unrebut-ted testimony concerning the circumstances that would adversely affect the Wife’s medical practice, the trial court found that the Wife could not maintain the Husband in the lifestyle he enjoyed for less than two years.

The trial court concluded that the duration of the marriage was twelve-and-a-half years, a gray-area marriage where there is no presumption in favor of permanent periodic alimony. See Gregoire v. Gregoire, 615 So.2d 694, 694 (Fla. 2d DCA 1992). The couple had no children. The Husband worked full time throughout the marriage and the Wife paid for her medical school with significant loans, for which only she was responsible. Both parties contributed equally to homemaking.

The Husband and the Wife were relatively young and healthy. Each was a successful professional with a bright future. The Husband worked in his chosen occupation throughout the marriage. He held a college degree and, as the trial court found, had a bright future with tremendous potential as a head coach with an NCAA basketball program. The trial court found credible the Wife’s evidence that her net current income was $5800 per month. The Husband’s monthly net income was $2600.

The Husband received an equitable distribution of $250,000 for his interest in the marital home and $7500 for his interest in the Wife’s medical practice. The trial court awarded the Husband bridge-the-gap alimony of $22,800. However, the trial court refused to award the Husband permanent periodic alimony.

We review the denial of alimony for an abuse of discretion. Doerr v. Doerr, 751 So.2d 154, 155 (Fla. 2d DCA 2000). We agree with the trial court that this was a gray-area marriage to which no presumption in favor of alimony attaches. See Gregoire, 615 So.2d at 694 (regarding eleven-year marriage); Levy v. Levy, 862 So.2d 48, 51 (Fla. 3d DCA 2003) (regarding fourteen-year marriage); Young v. Young, 677 So.2d 1301, 1305 (Fla. 5th DCA 1996) (regarding fifteen-year marriage). The Husband does not dispute this principle. Yet, he argues that Gregoire, 615 So.2d 694, and Young, 677 So.2d 1301, compel his entitlement to alimony.

In Gregoire, we affirmed an award of permanent alimony in an eleven-year marriage with two minor children. The trial court found that the husband’s achievement of substantial income-earning ability was directly attributable to the wife’s financial support in the early years of the marriage when the husband’s income was minimal. 615 So.2d at 695. Significantly, the wife also had sacrificed her career permanently to become a full-time homemaker. Id.

In Young, the Fifth District reversed the denial of permanent periodic alimony. The wife made career sacrifices and endured personal hardships while the husband attended medical school. The couple enjoyed a high standard of living during the last third of their fifteen-year marriage. 677 So.2d at 1303-04. The Fifth District held that the eight-to-one disparity between the husband’s and wife’s incomes was “ ‘a significant factor’ in deciding whether permanent or temporary alimony is warranted.” Id. at 1306 (quoting Reynolds v. Reynolds, 668 So.2d 245, 247 (Fla. 1st DCA 1996)).

The Wife relies on Kremer v. Kremer, 595 So.2d 214 (Fla. 2d DCA 1992). There, we reversed the trial court’s award of permanent alimony to the wife in a six-year childless marriage. Id. at 215. The wife supported herself before the marriage, was employed during the marriage, was thirty-seven at the time of dissolution, and could currently earn $20,000 to $25,000 per year with the prospect of earning $30,000-$35,000 annually within five years. Id. The husband earned $210,000 per year. Id. We concluded that the wife was not entitled to permanent alimony because there was “no showing that the disparity between the husband’s and the wife’s assets and income after the dissolution resulted in any substantial way from the [wife’s contribution to the] marriage.” Id. The wife left the marriage with no skills lost and considerably wealthier than before the marriage. Id.

This case is akin to Kremer. The disparity in the parties’ incomes is not dispos-itive under section 61.08. In any event, based on the trial court’s findings, the Husband’s monthly income was over forty percent of the Wife’s, hardly the disparity described in Young. Like the wife in Kremer, the Husband did not abandon his career or endure undue hardship. He coached at the collegiate level for most of the marriage, his annual income steadily increased, and his post-dissolution prospects were promising. He received a considerable sum as part of the equitable distribution of marital assets. Based on the record before us, we cannot say that the trial court abused its discretion in denying permanent periodic alimony.

Affirmed.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.

      . In 2006, Medicare expanded national coverage of bariatric surgery to Medicare and Medicaid recipients up to 65 years of age if performed at a facility approved as a Center of Excellence by the American Society for Baria-tric Surgery (ASBS) or the American College of Surgeons (ACS). The ASBS and the ACS both require that the hospital perform a minimum of 125 bariatric surgeries per year. Shawn Garber, "Much Ado about Medicare’s Ruling and Centers of Excellence,’’ Bariatrics Today, Issue 1, 2006, at 29-30 (2006) (Wife's Exhibit 24).

      . Such relief is "an award of rehabilitative alimony in order to 'bridge the gap’ between married and single life.” Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999).