text:
    Jerri WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4696.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A four-count affidavit of violation of community control was filed against appellant, Jerri Wright. After a hearing, the trial court orally found there was a willful and substantial violation. After the written sentencing order was entered, appellant filed a notice of appeal and thereafter filed in the trial court a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 8.800(b)(2). In the motion, appellant asserted that the trial court never entered a written order on the violation of community control and that there was no evidence introduced at the hearing on the fourth count which alleged her failure to pay her costs of supervision. The trial court subsequently entered an order stating that the motion was denied by operation of law.

While this appeal was pending, this court relinquished jurisdiction for the trial court to enter a written order on the violation of community control. The trial court entered an Order of Violation of Community Control which made the same finding which it had orally made but did not state which conditions it found appellant had violated.

On appeal appellant argues that the trial court erred in failing to enter an order specifying which conditions it found appellant violated. We agree. When “the order of revocation fails to specify the specific violations found, it must be reversed for that reason alone.” Larangera v. State, 686 So.2d 697, 698 (Fla. 4th DCA 1996).

Appellant also asserts that the state failed to present sufficient evidence that she had violated allegations II, III and TV. In allegations II and III, the state alleged appellant violated the condition of community control that she remain confined to her approved residence during certain hours of the day. In its attempt to prove these violations, the only evidence presented by the state was hearsay in the form of two receipts in someone else’s name from two department stores which showed that someone had made purchases at a time when appellant was supposed to be at home. “Hearsay, though admissible in a probation revocation hearing, is insufficient standing alone to establish a violation of a condition of probation.” Nadeau v. State, 920 So.2d 206 (Fla. 4th DCA 2006) (quoting Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000)). The evidence presented by the state was insufficient to support violations in allegations II and III.

With respect to allegation IV for failure to pay her costs of supervision, the record shows the state did not present any evidence of a violation. Therefore, we reverse and remand for the trial court to make specific findings on the violation of allegation I and to determine if that violation alone warrants the imposition of the same sentence.

Reversed and Remanded.

WARNER, KLEIN and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terence M. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3620.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Terence M. Scott, Belle Glade, pro se.
    Bill McCollum, Attorney General, Tallahassee, and August Bonavita, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse, in part, the trial court’s summary denial of Scott’s rule 3.850 motion for post-conviction relief and remand for an evidentiary hearing as to claims five, six, seven, and eight. As to all other claims, the order is affirmed.

Scott entered into a negotiated plea. In claim five, Scott argues that trial counsel failed to advise him that the dates in the charging document fell within the window period to pursue a Heggs challenge under Trapp v. State, 760 So.2d 924, 928 (Fla.2000). Scott asserts that he qualifies for sentencing under the 1994 guidelines because the crime he committed was not a true continuing offense under Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); therefore, the offense date would be considered the beginning of the offense. Scott alleges that had counsel informed him of his eligibility to be sentenced under the 1994 guidelines, he would not have agreed to the terms of his plea. In his sixth claim, Scott argues that trial counsel erroneously qualified the plea agreement based on the wrong scoresheet.

In claim seven, Scott argues that his plea was involuntary, as counsel failed to inform him that the state’s plea offer utilized the more onerous of two sentencing schemes and its use exposed him to an ex post facto violation. In his eighth claim, Scott alleges that his plea was involuntarily entered into when trial counsel misinformed him of the applicability of Florida Rules of Criminal Procedure 3.704 and 3.992(a). Rule 3.704 deals with use, purpose, rules, and definitions under the Criminal Punishment Code (CPC). Rule 3.992(a) gives a CPC scoresheet example. If Scott was entitled to be sentenced under the guidelines and not the CPC, and counsel failed to inform Scott of this and qualified the plea agreement based on an incorrect scoresheet, then Scott may be entitled to withdraw his plea.

The beginning of the offense date, as stated in the charging document, is January 1, 1996, at which time the unconstitutional 1995 guidelines were in effect. Those sentenced under the unconstitutional guidelines can be re-sentenced if their offenses were committed on or after October 1, 1995, and before May 24, 1997. Trapp, 760 So.2d at 928. Scott is entitled to be sentenced under “the ‘most lenient version of the guidelines in effect during the time frame alleged in the information.’ ” Glynn v. State, 868 So.2d 1280, 1281 (Fla. 4th DCA 2004) (citing Cairl v. State, 833 So.2d 312, 314 (Fla. 2d DCA 2003)). In Cairl, the court recognized that where the defendant was charged with acts of lewd and lascivious conduct within a period of time without a finding as to a specific offense date, and the time period for the offense “straddled” three different sentencing guidelines, the defendant is to be given the benefit of the most lenient scoresheet. Id. at 312-14.

The state argues that Glynn and Cairl are distinguishable because in those cases, the defendants did not enter into negotiated pleas. However, Scott is still entitled to the use of the most lenient applicable sentencing guidelines.

Scott’s scoresheet was calculated under the CPC and not a version of the guidelines. If Scott’s offense date was January 1, 1996, then the 1995 guidelines would have applied. The 1995 guidelines were found unconstitutional; therefore, the 1994 guidelines would apply. Scott’s claim that he would not have accepted the plea bargain had trial counsel informed him of that fact is sufficient.

We note that there was no explicit agreement or waiver with respect to this issue. See, e.g., Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995) (stating that while a defendant can waive jail credit, the waiver must be clear on the record). Furthermore, while generally an error in calculations on a scoresheet may be considered harmless when a defendant enters into a negotiated plea, Ruff v. State, 840 So.2d 1145, 1147 (Fla. 5th DCA 2003), here, there is no simple error in the score-sheet calculations but, instead, the wrong scoresheet and type of scoresheet was used.

The state also argues that Scott’s claim is legally insufficient because he does not explicitly allege that but for counsel’s error, he would not have entered a guilty plea. However, Scott essentially states such in alleging that, had he known he could be sentenced under the guidelines, he would not have entered into a plea for twelve years imprisonment, which could not be imposed under the guidelines, absent a departure.

The state also argues that these claims are procedurally barred as raised in a previous rule 3.800(a) motion. However, on the record before us, this court cannot determine whether Scott’s claim would be barred.

We, therefore, remand for an evidentia-ry hearing or attachment of records that refute these claims.

STONE, POLEN and MAY, JJ., concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).


author: HAZOURI, J.

text:
    Ronnie MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1825.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Carey Haughwout, Public Defender, Patrick B. Burke and Joseph Maryuma, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Ronnie Morris was charged by information with possession of heroin. He filed a motion to suppress arguing that the search of his vehicle was illegal. The trial court denied the motion and Morris entered a plea of no contest, reserving his right to appeal the denial of the motion to suppress as dispositive. We find that the noncon-sensual warrantless search of Morris’s vehicle was illegal, and we therefore reverse.

The only witness testifying at the motion to suppress hearing was City of Fort Lauderdale Police Officer Joyce Flem-ming. Flemming was employed by the Fort Lauderdale Police Department as a road patrol officer. In the course of her duties, Flemming came into contact with Morris and a blue Chevy Blazer parked on the south side of 6th Street and 16th Avenue in Fort Lauderdale. The car’s license plate reflected that the vehicle’s registration had expired a year-and-a-half earlier. Flemming advised Morris that he had to make arrangements to get his vehicle out of the area because it could not be driven on the roadways.

Approximately two weeks later, Flem-ming again came into contact with Morris and the vehicle. The vehicle was parked in a vacant lot on 17th Avenue and N.W. 6th Street in Fort Lauderdale. Flemming once again observed that the vehicle had the same expired license plate and she decided to have the vehicle impounded. Prior to having the Blazer towed and impounded, Flemming inventoried the vehicle and during that process discovered a leather pouch containing seven bags of heroin underneath the passenger side floorboard. She placed Morris under arrest and had the vehicle towed.

Orders denying motions to suppress are reviewed de novo. Harris v. State, 761 So.2d 1186, 1187 (Fla. 4th DCA 2000). This court is “required to accept the trial court’s determination of disputed issues of fact in a motion to suppress, as the trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence.” Curtis v. State, 748 So.2d 370, 371 (Fla. 4th DCA 2000). “A trial court’s decision on a motion to suppress arrives at this court with a presumption of correctness.” Williams v. State, 903 So.2d 974, 976 (Fla. 4th DCA 2005). We review such orders de novo. Id.

The issue before this court is whether Flemming had the authority to impound Morris’s vehicle. Without the authority to impound the vehicle, the inventory search of the vehicle was a warrantless and illegal search.

Section 320.07, Florida Statutes (2005), states that a motor vehicle shall not be operated on the roads of this state with an expired license plate. The license plate must have a valid sticker reflecting current registration. Morris was clearly in violation of section 320.07. Unlike several other statutes dealing with the operation of a motor vehicle, section 320.07 does not authorize the impounding of a motor vehicle.

In addition, there is no evidence in the record that suggests that Morris’s vehicle was illegally parked or created any type of traffic hazard. Flemming was free to give Morris a citation for violation of section 320.07.

If Flemming was concerned that Morris would operate the vehicle on the public roadways without a valid registration, then she could have immobilized the vehicle or given Morris the option to make his own arrangements to have his vehicle towed. We can find no basis or justification for the impounding of Morris’s vehicle. Flem-ming’s action of impounding the vehicle and conducting a warrantless inventory search constituted an unreasonable search and seizure. We therefore reverse the trial court’s denial of the motion to suppress and because the motion to suppress is dispositive, we remand, and direct the tpal court to vacate Morris’s conviction.

Reversed and Remanded with Directions.

WARNER and KLEIN, JJ., concur.

      . Section 316.191, Florida Statutes, deals with drag racing; section 316.193, Florida Statutes, deals with driving while under the influence; and section 322.34, Florida Statutes, deals with driving while license has been suspended, revoked, cancelled, or otherwise disqualified.


author: SHAHOOD, J.

text:
    Todd D. HURD, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2270.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant pled no contest to the charges of possession of cocaine and possession of drug paraphernalia, reserving his right to appeal the denial of his motion to suppress. We agree that this motion should have been granted and reverse and remand for vacation of the conviction and sentence.

At the hearing on the motion to suppress, the State called Deputy Anthony Kibler. On August 20, 2005, Kibler was on road patrol when he came across a silver Chevy pickup truck around nine in the evening. Kibler drove behind the truck and noticed the driver looking in his mirror and kind of driving slow. The driver would speed up, then drive slow. Kibler followed the truck for approximately two miles. When the truck approached an intersection, it was in the far left-hand lane and without warning crossed over a solid white line into the right lane and did not use a turn signal. Kibler initiated a traffic stop, approached the driver and obtained the driver’s license, which identified him as appellant. Subsequently, a search of appellant was conducted which revealed drugs.

On cross-examination, Kibler admitted that there were no other cars around, except his, when appellant changed lanes. Kibler testified that he observed appellant commit two traffic violations, the failure to maintain a single lane and a failure to signal.

Appellant testified that, while driving in his car, he noticed an officer behind him. Appellant said the officer pulled up really close behind him, about eight to ten feet behind. Appellant saw that the officer was on the radio and thought there may be an emergency and that the officer needed to get by, so appellant attempted to pull over a couple of times. When appellant approached an intersection, he decided to veer to the right most left turn lane in order to let the officer by, while his left turn signal was still on. There were no other cars on the road at that time. When the light turned green, appellant proceeded through the intersection and the officer turned on his siren and appellant pulled over.

In denying the motion to suppress, the trial court found:

This Court determines that the combination of both [driving] actions, as well as the officer’s testimony that the Defendant was erratic in the driving actions, would cause any reasonable officer to stop the driver out of concern for the welfare of the driver and for violation of two traffic offenses committed directly in front of the officer.

Under search and seizure law, the stopping of a motorist is reasonable where a police officer has probable cause to believe a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); Petrel v. State, 675 So.2d 1049, 1050 (Fla. 4th DCA 1996). The test is whether a police officer could have stopped the vehicle for a traffic violation. Id.

The constitutional validity of a traffic stop depends on purely objective criteria. Whren, 517 U.S. at 813, 116 S.Ct. 1769. The objective test “asks only whether any probable cause for the stop existed,” making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant. Holland v. State, 696 So.2d 757, 759 (Fla.1997).

Appellant was stopped for violating sections 316.155 and 316.089, Florida Statutes (2005).

Section 316.155 delineates the requirements for using a turn signal:

(1) No person may turn a vehicle from a direct course or move right or left upon a highway unless and until such movement can be made with reasonable safety, and then only after giving an appropriate signal in the manner hereinafter provided, in the event any other vehicle may be affected by the movement.
(2) A signal of intention to turn right or left must be given continuously during not less than the last 100 feet traveled by the vehicle before turning, except that such a signal by hand or arm need not be given continuously by a bicyclist if the hand is needed in the control or operation of the bicycle.

§ 316.155, Fla. Stat. (2005). Failure to signal as required by this section is a moving violation, thus giving an officer probable cause to stop a vehicle that does not signal appropriately. S.A.S. v. State, 884 So.2d 1167, 1168 (Fla. 2d DCA 2004).

However, the Florida Supreme Court has held that section 316.155 requires a signal only if another vehicle would be affected by the turn. State v. Riley, 638 So.2d 507 (Fla.1994). When no other vehicle is affected by a turn, then a signal is not required by the statute. Id. at 508. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal and any evidence obtained as a result of that stop must be suppressed. Id.; see also Frierson v. State, 851 So.2d 293 (Fla. 4th DCA 2003), quashed on other grounds, State v. Frierson, 926 So.2d 1139 (Fla.2006).

Here, according to the testimony of both the officer and appellant, no other traffic on the road was affected by appellant’s failure to signal and therefore appellant’s actions did not provide probable cause for a stop.

Section 316.089 provides in pertinent part:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

§ 316.089, Fla. Stat. (2005). However, the failure to maintain a single lane alone cannot establish probable cause when the action is done safely. See, e.g., Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998) (no violation where evidence showed driving did not place any other vehicles in danger); Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002).

Nevertheless, the failure to maintain a single lane alone, may, under appropriate circumstances, establish probable cause. See Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999) (weaving several times within a single lane held sufficient to justify a stop where there was no evidence to show endangerment to others and where no traffic violation had occurred); Yanes v. State, 877 So.2d 25, 26-27 (Fla. 5th DCA 2004) (where an officer observes a driver cross the white line on the right side of the road three times within a mile, each time crossing the line by approximately one-half of the vehicle’s width, provided sufficient evidence to stop the vehicle for a violation of section 316.089).

The above cases are based on the principle that a stop is permitted even without a traffic violation, so long as the stop is supported by a reasonable suspicion of impairment, unfitness or vehicle defects. Esteen v. State, 503 So.2d 356 (Fla. 5th DCA 1987); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999) (evidence of abnormal driving, albeit not amounting to a traffic violation, justified stop based on reasonable suspicion of impairment).

In the case at hand, there was nothing in the record to establish probable cause that the actions by appellant were not done safely or that appellant’s actions would lead an officer to suspect impairment or which could be considered erratic driving.

At the hearing, the arresting officer was asked about whether he noticed any erratic driving other than the traffic violations:

Q: Did you notice any, uh, weaving, uh, or any, any other erratic driving?
A: Uh, just that he would, it, it, it appeared to me that he was looking up and looking at his rearview mirror at me and kind of slowing down, speeding up. He didn’t want to go under the speed limit, but he didn’t want to go over the speed limit.

On cross-examination the officer admitted no other cars were endangered and that appellant’s actions were done safely:

Q: Okay, did he endanger any other vehicles when he moved from the leftmost turn lane into the rightmost turn lane?
A: There was no other vehicles there but myself.
Q: Oh, okay. And, and he didn’t almost hit you or anything, you were far enough behind him to where he made that move safely?
A: Uh, no, not technically because I think, I think what happened was he, he was in the far lefthand lane and he saw me behind him, I don’t know if he thought that he wanted to get out of my way or whatever and that’s why he moved over. I, I don’t know exactly why he, he did what he did.
Q: Okay, but regardless of, of why he did it, he, he didn’t almost hit you. He was, in fact, looking in his mirror or-correct.
A: Apparently, yes, sir.

Furthermore, there were no actions other than the changing of the lane without a signal that would indicate impairment:

Q: And it, is it fair to say that after following him for two miles, uh, other than the change of lanes and, and not using the turn signal, uh, you had no reason to believe that he was impaired in any way, correct?
A: Uh, no, sir.
Q: Okay. And you had no reason to believe that other than the traffic infraction that you say you saw, that he had committed any other crime, correct?
A: No, sir.
Q: Okay. And other than, again, the traffic infraction, you had no reason to believe that he was then, at that time, committing a crime, right?
A: Not until after I pulled him over....

Admittedly, the officer did observe appellant speed up and then drive slow, but even to the officer, this did not create a suspicion of impairment or constitute erratic driving. Under an objective standard, appellant’s driving, while not perfect, was not sufficiently erratic, in light of the caselaw, to give rise to a reasonable suspicion of impairment. Where a motorist is stopped for an alleged traffic code violation that subsequently proves not to be a violation of any traffic law, or where there was not probable cause of a traffic infraction, the evidence seized following such a stop should be suppressed. See Riley, 638 So.2d at 508.

Accordingly, we reverse appellant’s conviction and sentence and remand with instructions that an order be entered granting his motion to suppress and for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS and MAY, JJ., concur.


author: STEVENSON, C.J.

text:
    Derek D’AGOSTINO and D’Agostino Racing, Inc., Appellants, v. LETHAL PERFORMANCE, INC., Appellee.
    No. 4D06-2590.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Bruce Botsford of Botsford & White, LLC, Hollywood, for appellants.
    Craig J. Trigoboff and Thomas C. Adam of Waldman Feluren Hildebrandt & Trigo-boff, P.A., Weston, for appellee.
   STEVENSON, C.J.

Derek D’Agostino and D’Agostino Racing, Inc. appeal a temporary injunction entered in favor of Lethal Performance, Inc. For the reasons set forth below, we reverse the temporary injunction to the extent it enjoined the appellants from operating an automotive parts accessory installation facility that installed the same brands of after-market performance enhancing parts as Lethal Performance. In all other respects, we affirm.

In 2005, Jared Rosen, Jonas Cooper and Derek D’Agostino formed Lethal Performance, Inc., an internet retailer of aftermarket performance parts which caters to owners of specific automobiles. The Shareholders’ Restrictive Agreement states in part that the company’s shareholders could not “[o]wn, maintain, engage in, or have any interest in any other business which sells products and/or performs any of the various programs and services performed or rendered by the Company.” The Agreement further provides that the covenant not to compete would continue to apply for three-years after any shareholder ceased to be a part of the company.

Around the time period that D’Agostino left Lethal Performance, he began operating D’Agostino Racing, a company that distributed automobile parts and operated an installation facility. Thereafter, Lethal Performance sought a temporary injunction that enforced the restrictive covenant. At the conclusion of the hearing held on Lethal Performance’s motion, the trial judge informed the parties that, although he was concerned about the companies selling the same products, D’Agostino Racing could install parts sold by Lethal Performance.

We agree with D’Agostino that the trial court erred by including in its written order a restriction on the types of parts D’Agostino Racing could install. “A party seeking temporary injunctive relief must demonstrate: (1) irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) that the public interest will be served.” Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000). “Where a covenant not to compete is violated, irreparable injury is presumed and does not have to be proven to obtain an injunction.” T.K. Commc’ns, Inc. v. Herman, 505 So.2d 484, 486 (Fla. 4th DCA 1987). However, the presumption of irreparable harm is rebuttable. See Don King Prods., Inc. v. Chavez, 717 So.2d 1094, 1095 (Fla. 4th DCA 1998). In the absence of evidence showing Lethal Performance operates an installation facility, Lethal Performance has failed to establish that D’Agostino or D’Agostino Racing would violate the Shareholders’ Restrictive Agreement by installing the types of parts Lethal Performance sells. Accordingly, we remand this case to the trial court to conform the written order regarding the installation facility to the court’s oral pronouncements. We have considered the other issues raised, but find no error.

Affirmed in part, Reversed in part, and Remanded.

STONE and TAYLOR, JJ., concur.


text:
    A.L., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-580.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Beresford A. Landers, Jr., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
    Patricia M. Propheter, Orlando, for ap-pellee Florida Guardian ad Litem Program.
   PER CURIAM.

The father appeals the trial court’s entry of a final judgment of termination of his parental rights and permanent commitment of his minor child. He challenges the sufficiency of the evidence supporting the final judgment. We affirm because the father failed to provide transcripts or any record of the proceedings below. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1151 (Fla.1979). Moreover, the father does not allege any fundamental error, and no fundamental error appears on the face of the final judgment. See Mayfield v. Mayfield, 929 So.2d 671, 672 (Fla. 5th DCA 2006) (citing Applegate) (recognizing “[i]n the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed”).

Affirmed.

GUNTHER, HAZOURI, JJ., and METZGER, ELIZABETH A., Associate Judge, concur.


text:
    Bonnie Travis SHUMAKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-659.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Bonnie T. Shumaker, Quincy, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant, Bonnie Travis Shumaker, appeals the trial court’s denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Shumaker alleges that the trial court erred in sentencing her utilizing the Criminal Punishment Code Scoresheet under Florida Rule of Criminal Procedure 3.992(a), because her criminal activity began on February 12, 1998, and the rule 3.992(a) scoresheet applies to crimes occurring on or after October 1, 1998. See Fla. R.Crim. P. 3.992(a). We agree and the state concedes error.

Section 921.001(4)(b)3., Florida Statutes (1999), states that “[fjelonies, except capital felonies, with continuing dates of enterprise shall be sentenced under the-sentencing guidelines in effect on the beginning date of the criminal activity.” See § 921.001(4)(b)3., Fla. Stat. (1999) (emphasis added). Because Shumaker was convicted of one count of grand theft over $100,000, a first-degree felony, and her criminal activity began on February 12, 1998, the trial court should have used the Sentencing Guidelines Scoresheet under Florida Rule of Criminal Procedure 3.991(a), which applies to offenses committed between October 1, 1995 and September 30, 1998. See Fla. R.Crim. P. 3.991(a), 3.992(a); § 921.001(4)(b)3., Fla. Stat. (1999).

Accordingly, we reverse and remand for resentencing utilizing the proper score-sheet.

Reversed and Remanded with Directions.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


text:
    Larsen D. ERICKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3346.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Ana M. Davide of Law Offices of Ana M. Davide P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant, Larsen Erickson, appeals the trial court’s summary denial of his petition for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and raises two issues. We affirm on one of the grounds raised and reverse and remand the trial court’s summary denial of Ground 1.

Ground 1 alleges that trial counsel rendered ineffective assistance of counsel by failing to investigate the evidence which showed that the drugs appellant was accused of trafficking in had been tampered with. The record before this court does not refute appellant’s claim that the drugs which he allegedly purchased and which were taken into evidence at the scene are not the same drugs that were submitted to the crime laboratory for analysis. On remand, the trial court shall either provide record attachments conclusively refuting appellant’s claim or conduct an evidentiary hearing.

Affirmed In Part; Reversed and Remanded In Part.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. S.V., a child, Appellee.
    No. 4D06-2147.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

MAY, J.

The juvenile filed a motion for rehearing and argued that the State’s appeal was limited to only one of two case numbers found on the order suppressing the child’s statements. Upon review of the procedural history of this case, it is clear that the State only appealed case number 5620005CJ001461 [hereinafter 1461]. We therefore withdraw our prior opinion and issue this opinion in its place.

The State appeals an order granting the juvenile’s motion to suppress. The State argues the trial court erred in granting the motion to suppress because it did so solely on the basis that the juvenile’s parents were not notified before the interview. We agree that the court erred in relying upon this basis in suppressing the juvenile’s statements, but affirm the order for an alternate reason.

Law enforcement arrested the juvenile on July 13, 2005, on a grand theft auto charge (Case No. 1461). A detective interviewed the juvenile after informing him of his Miranda rights through the use of a pre-printed card. At that time, the pre-printed form did not include the juvenile’s right to have counsel present during questioning. The juvenile confessed to stealing the motor vehicle, and the State then filed a petition for delinquency for grand theft auto. It was disputed whether the juvenile’s mother was notified before the statement was taken.

The juvenile was subsequently arrested on another charge. On this occasion, it was undisputed that law enforcement interviewed him without notifying his mother. The juvenile filed identical motions to suppress in each case. The trial court heard both motions at the same time.

At the hearing, the juvenile argued the State failed to prove that he had voluntarily and intelligently waived his rights because: (1) the waiver was not written; (2) his mother was not notified or present; and (3) the first detective’s presence during the second arrest tainted the juvenile’s statement by implicating a promise for leniency. The juvenile did not raise the inadequacy of the Miranda warnings in case number 1461. The State argued that law enforcement’s failure to contact the juvenile’s parents prior to the interview was not dispositive, and that the trial court should consider the totality of the circumstances.

The trial court granted the motion to suppress in each case. The court based its decision solely on the fact that the juvenile did not have the opportunity to speak with his mother prior to being interviewed, and his mother did not understand what was going on because of an English/Spanish language barrier.

The State argues the trial court erred in applying a per se rule that custodial statements are inadmissible if the juvenile does not have the opportunity to speak with a parent before the interview. It continues to maintain the trial court should have looked at the totality of the circumstances. The juvenile responds that the trial court correctly found that he had not made a voluntary and knowing waiver of his right to remain silent. For the first time on appeal, the juvenile also argues his confession in case number 1461 was properly suppressed because of defective Miranda warnings.

The relevant inquiry is whether the juvenile’s waiver of his Miranda rights was knowing and voluntary given the totality of the circumstances. State v. Cartwright, 448 So.2d 1049, 1051 (Fla. 4th DCA 1984) (citing Doerr v. State, 383 So.2d 905, 907 (Fla.1980)). In cases involving juveniles, the court should consider: 1) the methodology employed to administer the Miranda rights; 2) the age, experience, background, and intelligence of the child; 3) whether the parents were contacted and whether the child had an opportunity to speak with them prior to giving the statement; 4) whether the questioning occurred in the station house; and 5) whether the child executed a written waiver of rights. Ramirez v. State, 739 So.2d 568, 576 (Fla.1999) (citations omitted); accord Brancaccio v. State, 773 So.2d 582, 583-84 (Fla. 4th DCA 2000), review denied, 791 So.2d 1095 (Fla.2001), cert. denied, 534 U.S. 1022, 122 S.Ct. 549, 151 L.Ed.2d 426 (2001).

Here, the trial court expressly found that law enforcement did not intentionally do anything wrong. The juvenile was seventeen years old and he had previously been arrested. The trial court specifically found that the juvenile understood English. He readily answered questions and appeared calm throughout the interview. He did not execute a written waiver form. It was disputed whether law enforcement spoke to the juvenile’s mother prior to questioning, but she did not go to the sheriff’s office.

The State correctly argues “[t]here is no constitutional requirement that police notify a juvenile’s parents prior to questioning the juvenile.” Frances v. State, 857 So.2d 1002, 1003-04 (Fla. 5th DCA 2003) (citing Brancaccio, 773 So.2d at 583-84). Nevertheless, “if the juvenile indicates to police that he or she does not wish to speak to them until he or she has had an opportunity to speak with parents, the questioning must cease.” Id. at 1004 (citing B.P. v. State, 815 So.2d 728, 729 (Fla. 5th DCA 2002)). This record is clear that the juvenile did not indicate prior to or during questioning that he wished to speak to his mother. Thus, the trial court’s reliance on this aspect alone to support its decision was flawed.

However, in case number 1461, the Miranda warnings given were defective because they failed to advise the juvenile of his right to counsel during questioning. See Roberts v. State, 874 So.2d 1225, 1228 (Fla. 4th DCA 2004). Thus, we affirm the order of suppression in case number 1461.

Affirmed.

STEVENSON, C.J., and KLEIN, JJ., concur.

      . Initially, the State filed a notice of appeal in each case. Those appeals were dismissed without prejudice for lack of an appealable order. On May 22, 2006, the trial court entered a single written order containing both case numbers. When the State filed a new notice of appeal, however, it listed only case number 1461. Nevertheless, the briefs discussed the facts and law as they related to both cases and never suggested the appeal was limited to only case number 1461.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We apply the tipsy coachman rule to reach this result. The tipsy coachman doctrine permits an appellate court to affirm a trial court's decision that was correct in result, but based on the wrong reason, if there is record evidence of any theory or principle of law that would support the order. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). It is not necessary for the appellee to preserve this defense by having presented and argued the alternative basis below. Id. at 645.


text:
    Cory PETRUNY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2391.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Cory Petruny, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cory Petruny appeals the summary denial of his multi-claim postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further review of one point.

Petruny claims that his plea is involuntary in light of trial counsel’s failure to move to suppress statements. Petruny alleges that there was a defect in the Miranda warnings that were administered by police. See Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied, 892 So.2d 1014 (Fla.2005) (finding that the warning given was insufficient to satisfy Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because it failed to advise of the right to have counsel present during questioning and advised merely that defendant could have counsel present before questioning). As this court has recognized, a defendant cannot voluntarily waive defenses of which he is not informed. Rouzard v. State, 952 So.2d 1290 (Fla. 4th DCA 2007); see also Wilson v. State, 871 So.2d 298 (Fla. 1st DCA 2004); Ethridge v. State, 766 So.2d 413, 414 (Fla. 4th DCA 2000).

The record before this court does not reveal that comparable and sufficient warnings were given. Compare Canete v. State, 921 So.2d 687 (Fla. 4th DCA) (en banc), rev. denied, 944 So.2d 986 (Fla.2006). If no records are available to refute Petruny’s claim, the trial court on remand must determine whether Petruny has shown there is a reasonable probability that, “but for counsel’s failure to inform him of the deficiency in the warnings and failure to file a motion to suppress, he would not have entered the plea.” Rouzard, 952 So.2d at 1292 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). The summary denial of the remaining claims is affirmed.

POLEN, GROSS and TAYLOR, JJ„ concur.


author: POLEN, J.

text:
    Stanley PRISKIE and EXA, Inc., Appellants, v. Ralph MISSRY, Appellee.
    No. 4D06-2710.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      William Sumner Scott of The Scott Law Firm, P.A., Miami, for appellants.
    Steven Warm of Law Offices of Steven Warm, Boca Raton, for appellee.
   Corrected Opinion

POLEN, J.

We withdraw the opinion issued on May 30, 2007, and substitute this opinion in its place to correct a scrivener’s error.

Appellant, Stanley Priskie appeals a final judgment in favor of Appellee Ralph Missry, awarding Missry $25,000 in damages against Priskie and his corporation, EXA, Inc., jointly and severally. In May of 2004, Missry filed a complaint against Priskie and EXA, Inc., alleging he loaned $20,000 to EXA that had not been repaid. EXA is a publicly traded corporation and Missry and Priskie were both shareholders in the company. Priskie and his wife together controlled 40% of EXA’s shares. Priskie’had approached Missry about loaning EXA money, and Missry did so. There was no written documentation for the. loan, although neither party is disputing it was made. Missry alleged Priskie and EXA owed him $20,000, plus costs and fees. The trial court found that Priskie was personally liable for repayment of Missry’s loan and found Missry was owed $25,000. We disagree with the trial court’s ruling and reverse.

“The trial court’s rulings come before this court with a presumption of correctness.” Smith v. Orhama, Inc., 907 So.2d 594, 595 (Fla. 3d DCA 2005). “Generally, the rule is that the corporate veil will not be pierced absent a showing of improper conduct.” Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998).

Three factors must be proven by a preponderance of the evidence: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.

Id. Stated succinctly, in order to pierce the corporate veil, a plaintiff is required to prove both that the corporation is a mere instrumentality or alter ego of the defendant and that the defendant engaged in “improper conduct.” Id. (quoting Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1120-21 (Fla.1984)).

At trial, the parties presented testimony and evidence regarding the circumstances surrounding the loan. According to Priskie’s deposition, he approached Missry for a loan because “my family and friends and I have been contributing money every week to pay the expenses of the company, and we were running very tight, very short.” Priskie was the chairman of the board and treasurer for EXA. When he approached Missry about the loan, Pri-skie denied representing that he was acting in any other capacity other than as a representative for EXA. When Missry agreed to loan Priskie the money, Priskie asked that $4,000 be given to Barry Jones, an EXA employee, and $14,000 be given to EXA directly. Priskie planned on repaying the loan from an expected distribution from a personal real estate venture. Any funds that did not go to Missry would be used to fund EXA.

On cross-examination, Missry’s counsel questioned Priskie about the purpose of the loan and the fact that Priskie’s deposition revealed that he and his family had been funding the corporation. Priskie denied that “part of the reason for the loan was to negate [his] personal obligation or need to take funds out [his] pocket to fund the company.” Priskie agreed he needed outside help to fund the company.

In finding that Priskie was personally liable for the loan, the trial court stated “there wasn’t a distinction between his actions and the actions of the corporation.” We disagree and find there was no evidence presented of improper or fraudulent conduct in this case. There was no dispute at trial that Priskie used the money to fund EXA and not for any personal purpose. While Priskie had been personally funding EXA and was using the loan to help relieve the pressure to him and his family, we find this does not constitute improper conduct on his part. It is not improper for a shareholder or officer of a corporation, with the corporation’s knowledge and consent, to loan his personal funds to the corporation for payment of corporate debts nor does it give rise to personal liability. On the other hand, taking out corporate funds without authorization, which is not at issue in this case, is another matter altogether. There was no evidence presented at trial that Priskie used the loan for anything other than EXA purposes, or that he intended to defraud or mislead Missry.

Missry argues Priskie’s plan to pay him back out of income from a personal investment proves his personal liability and that Priskie’s actions were not authorized by EXA. We find this argument unpersuasive. All of the checks Missry received in payment for the loan were from EXA. Priskie never wrote Missry a personal check and testified he intended to put the income from his personal investments back into EXA and issue Missry a check from EXA. While there was no initial corporate resolution authorizing EXA to acquire a loan from Missry or to issue the repayment checks to Missry, EXA’s board of directors later acknowledged the issuance of the checks and affirmed they were appropriately issued. Subsequent ratification cures any improper action. See Jupiter Mortg. Corp. v. Bank of Am., N.A, 871 So.2d 1019 n. 1 (Fla. 3d DCA 2004). We find there was no evidence presented that would allow the trial court to pierce EXA’s corporate veil and hold Priskie personally liable for Missry’s loan to EXA. We reverse the trial court’s decision with regard to Priskie’s liability.

Priskie and EXA also appeal the trial court’s award of $25,000 to Missry, arguing $5,000 of this amount had already been paid. Missry concedes this point on appeal. We find the trial court erred in determining Missry was owed $25,000. The original loan was for $20,000. While the evidence supports the conclusion that EXA, through Priskie, promised to pay $5,000 in interest, the evidence also shows that Missry received $5,000 in payment toward the loan. This leaves a debt of $20,000, not $25,000. Therefore, we reverse and remand this issue with instructions for the trial court to amend the final judgment to find EXA hable for $20,000, plus interest from the date of judgment, and to delete any liability as to Priskie individually.

WARNER and HAZOURI, JJ., concur.