author: COPE, J.

text:
    Jessie DRAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2615.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Jessie Drayton, in proper person.

      Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   COPE, J.

This is an appeal of an order denying a motion under Florida Rule of Criminal Procedure 3.800(a), which sought additional credit for jail time previously served in Miami-Dade County Circuit Court case number 95-10373 (the 1995 case). We affirm, but grant leave to file a new motion in the trial court.

After this court reversed the convictions of defendant-appellant Drayton and remanded for a new trial, Drayton v. State, 763 So.2d 522 (Fla. 3d DCA 2000), the defendant entered into a plea agreement with the State. He was sentenced to fifteen years on count one, murder, and a consecutive ten years of probation on count two, armed robbery. After completion of the incarceration on count one, the defendant was released on probation but violated it, apparently by committing a new crime. He was taken into custody on the violation of probation.

On March 6, 2007, the defendant entered into a plea agreement with the State on the violation of probation and the substantive offense, Miami-Dade County case number 06-27342 (“the 2006 case”). In the two cases he was given concurrent sentences of two years in state prison, followed by two years of community control, followed by nine years of probation. He received 202 days for credit for time served since being taken into custody in 2006.

In August 2007, the defendant filed his Rule 3.800(a) motion in the 1995 case only. He contended that he was entitled to an additional 960 days credit for jail time served between 1995 and 1997 on the 1995 case. Since the defendant was seeking approximately two years and seven months of additional credit to be applied to a two year sentence, it appeared that the defendant was seeking immediate release from custody. The defendant’s motion did not mention the existence of the concurrent sentence in the 2006 case, and did not explain that he would continue to be incarcerated under the 2006 case even if relief were granted in the 1995 case.

The State argued that the decision in Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004), was squarely on point and would frustrate the plea bargain. See also Rivera v. State, 954 So.2d 1216 (Fla. 3d DCA), review granted, No. SC07-936, 968 So.2d 557 (Fla. Oct. 2, 2007). The trial court denied relief and the defendant has appealed.

In the defendant’s brief, he for the first time explains that he is not seeking immediate release. He states that he was sentenced to identical concurrent sentences in his 2006 case as well as the 1995 case. He states that he is seeking relief in the 1995 case only and argues that the Fulcher decision has no application to him. He contends that granting the additional credit for jail time served will in some fashion make him eligible for consideration for work release by the Department of Corrections.

The defendant did not make this argument in his papers filed in the trial court, so we do not consider that argument on the merits at this time. However, our affirmance is without prejudice to the defendant to file a new motion in the trial court, fully explaining his claim, after which the State will have an opportunity to respond. We express no view on the merits of such a motion.

Affirmed.


source: Caselaw Access Project

author: GERSTEN, C.J.

license: Public Domain

text:
    L.I., Appellant, y. The DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Appel-lees.
    No. 3D07-1550.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Kevin Coyle Colbert, Miami, for appellant.
    Karla Perkins, Assistant District Legal Counsel for appellee, Department of Children and Family Services; and Hillary S. Kambour, for appellee, Guardian Ad Litem Program.
    Before GERSTEN, C.J., and SUAREZ, J., and SCHWARTZ, Senior Judge.
   GERSTEN, C.J.

L.I. appeals from an order vacating pri- or dismissals and granting a new trial on a petition to terminate parental rights. Finding no error in the successor judge’s reconsideration of the prior dismissals, we affirm.

The Department of Children and Family Services (the “Department”) petitioned to terminate L.I.’s parental rights to her three children, A.T., Ta.T., and To.T. At an adjudicatory hearing, the original trial judge granted L.I.’s motion to dismiss the petition and entered judgments of dismissal. The trial judge was subsequently disqualified.

Thereafter, the Department and the Guardian Ad Litem Program (“GAL”) sought reconsideration of the original judge’s dismissals. The successor judge granted the motion for reconsideration, vacated the prior dismissals, and ordered a new trial. L.I. appeals from these rulings.

Florida Rule of Judicial Administration 2.330(h) states that “[pjrior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration.” Prior rulings subject to reconsideration include final judgments. Schlesinger v. Chem. Bank, 707 So.2d 868, 869 (Fla. 4th DCA 1998). Here, after reconsideration, the successor judge concluded that a new trial was warranted. We find that she was within her discretion and authority.

Accordingly, we affirm the order granting reconsideration, vacating the prior dismissals, and ordering a new trial.

Affirmed.


author: SHEPHERD, J.

text:
    Rossmery ILLANES, Petitioner, v. Victor GUTIERREZ, Respondent.
    No. 3D07-2720.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2007.
    Kenneth M. Kaplan, for petitioner.
    Hernán Hernandez, for respondent.
    Before GREEN, SHEPHERD, and ROTHENBERG, JJ.
   SHEPHERD, J.

Rossmery Illanes petitions this Court for the issuance of a writ of certiorari to the Circuit Court of Miami-Dade County, Family Division to review an “Order on Court Ordered Case Management Conference.” The order modifies an eight-year-old Final Judgment of Dissolution, which had authorized only supervised visitation between the minor child and Respondent-father, Victor Gutierrez, to temporary, biweekly, unsupervised weekend visitation. Although the petitioner has exhibited considerable disrespect to the trial court and its processes, there is no allegation or proof supporting a need for emergency action. See Loudermilk v. Loudermük, 693 So.2d 666, 668 (Fla. 2d DGA 1997) (“[S]uch an order requires an emergency-situation such as where a child is threatened with harm, or where the opposing party plans to improperly remove the child from the state.”).

The order presented here arose out of a trial court ordered case management conference that apparently is routinely utilized by the trial court for the commendable purpose of managing its docket. Although the parents have been squabbling for years over multiple issues relating to the child, there was no notice in the case management order that visitation would be discussed or a modification considered at the case management hearing. Nor was there a motion pending or noticed for such purpose.

“Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.” Foerster v. Foerster, 885 So.2d 927, 929 (Fla. 2d DCA 2004); Aiello v. Aiello, 869 So.2d 22, 23 (Fla. 2d DCA 2004); Lentz v. Lentz, 414 So.2d 292, 293 (Fla. 2d DCA 1982). There is no evidence in the record that the topic of visitation modification was properly presented for consideration by motion and notice, and the respondent does not contend otherwise. Brady v. Jones, 491 So.2d 1272, 1273 (Fla. 2d DCA 1986) (“A court cannot modify any judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to be heard on the issue.”). Nor does the case management order issued by the trial court, which states only that “counsel should have discussed with each other, and counsel and the parties should be prepared to discuss with the undersigned Judge [certain listed matters]” (emphasis added), indicate that the call of the hearing was intended to include any evidentiary matters. Finally, neither the trial court nor the parties have provided us with any record support from which we can conclude the issue was heard by the petitioner with implied consent.

Petition granted. Order quashed.


author: ROTHENBERG, Judge.

text:
    Jackie M. BELL, Appellant, v. The STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, o/b/o Deanne PEACOCK, Appellee.
    No. 3D06-1671.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2007.

      Jackie M. Bell, in proper person.
    Jason R. Smith, Key West; Deborah Marks, Miami, for appellee.
    Before GREEN, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

Although the former husband, Jackie M. Bell, appeals from an order establishing child support, his pro se initial brief does not address that order. Instead, his initial brief addresses issues that pertain to prior court proceedings, which can no longer be timely appealed; matters raised by the former husband in his previous appeal before this Court, see Bell v. Peacock, 889 So.2d 78 (Fla. 3d DCA 2004) (table), and/or matters that were not raised at the hearing on the motion to establish child support. Accordingly, as the former husband has failed to demonstrate any reversible error, we affirm the order establishing child support.

We caution the former husband against filing further appeals seeking to attack matters that are not properly under review, which could result in this Court entering an order prohibiting him from filing further appeals pro se before this Court and requiring him to obtain representation by an attorney in good standing with The Florida Bar, before filing further appeals in this case.

Affirmed.


author: PER CURIAM.

text:
    William Scott BARTLETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3074.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2007.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant sought postconviction relief, pursuant to rule 3.850. Therein, the appellant raised two grounds for relief. We affirm the summary denial, without comment, as to ground one. However, we reverse on ground two, related to the suppression issues, and remand for a limited evidentiary hearing or attachment of record evidence that conclusively refutes the allegation of error.

The State charged Bartlett with felony cruelty to animals, in violation of section 828.12(2), Florida Statutes. In summary, officers responded to a location and saw Bartlett standing over an injured animal, holding a loaded BB gun. The animal had “countless amounts of pellets or BB’s” embedded within its body and the officers heard several “popping” noises prior to seeing Bartlett standing over the animal. Bartlett gave a statement to police claiming he was defending himself from the animal in the wake of the hurricanes. Thereafter, Bartlett began “name-dropping” in an effort to be relieved of the charges. At trial, a police officer testified as to the content of the statement.

In his motion for postconviction relief, Bartlett claims his trial attorney provided ineffective assistance by failing to move to suppress this statement. Bartlett claims he was never properly warned of his right to assistance of counsel during the interrogation. Bartlett also claims that he would never have testified, consistent with his statement to police, had the attorney successfully moved to suppress that statement. Bartlett relies upon Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), and related cases which allow for suppression where the defendant is not warned of his right to assistance of counsel during an interrogation.

During the trial, the interrogating officer began to describe the warnings given to Bartlett prior to his statement, but the officer did not testify whether Bartlett was informed of his right to have an attorney present during the interrogation. It appears the officer did not complete his testimony concerning the full warnings provided to Bartlett, as the prosecutor moved on to other topics before the full pre-printed card was read. As such, the claim that Bartlett was not properly warned of his right to an attorney during the interrogation was not conclusively refuted by the record before the trial court.

The State’s contention that the attorney’s failure to move to suppress the statement did not prejudice Bartlett is unconvincing. The State points to the argument that Bartlett testified, at trial, consistent with his statement to police, thus there is no prejudice. This misses the point of the allegation of error, as Bartlett alleges he would never have testified had the statement been suppressed. Further, the State’s argument fails to understand the prejudicial impact of the “name-dropping” Bartlett engaged in, in an effort to make the charge go away. See generally McGill v. State, 964 So.2d 183 (Fla. 4th DCA 2007) (granting postconviction relief where an attorney failed to move to suppress “exculpatory” statements, given in violation of Miranda, where the prejudice went to the credibility of the defendant’s current line of defense).

We reverse, in part, the summary denial of this motion as the record does not conclusively refute the legally sufficient ground for relief. We remand for a limited evidentiary hearing as to the Roberts-issue or the attachment of records which conclusively refute the allegations.

Affirm, in part, reverse, in part, and remand.

WARNER, STEVENSON and MAY, JJ., concur.


text:
    The STATE of Florida, Petitioner, v. Sylvia ALZATE and Carlos Gonzalez, Respondents.
    No. 3D07-2631.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, for petitioner.
    Richard Baron; Lonnie Richardson, for respondents.
    Before COPE, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The State of Florida (“the State”) presented a legally sufficient motion to disqualify the trial judge, and accordingly, we grant the petition for writ of prohibition.

Sylvia Alzate and Carlos Gonzalez (collectively, “the defendants”) were charged with extortion in December 2006. The alleged victim is Alejandro Sanchez Pizarro (“Pizarro”), a professional musician. Originally, Pizarro was included on the State’s witness list, and the State Attorney’s Office was accepting service of process on his behalf. On May 31, 2007, however, Pizarro’s name was removed from the State’s witness list and the State ceased accepting process for Pizarro.

In June 2007, the defendants attempted to subpoena Pizarro for deposition. When they attempted to serve Pizarro through the State Attorney’s Office, they learned that, because Pizarro had been removed from the witness list, the State Attorney’s Office was no longer accepting service for Pizarro. The defendants, therefore, attempted to serve Pizarro at his Miami Beach residence, where the documents were presented to a live-in maid. When Pizarro failed to appear for the scheduled deposition, the defendants filed a motion for a rule to show cause against Pizarro, alleging that Pizarro had been properly served and had failed to comply.

The motion was set for hearing on August 30, 2007, and although Pizarro was personally represented by Florida counsel, Pizarro’s counsel was not informed of the hearing. During the hearing, Pizarro’s attorney in Spain appeared and subsequently represented that Pizarro was not in the country when service was attempted on a maid at his Florida residence. Because the defendants wished to call an additional witness, the proceedings were continued to the following day, August 31, 2007. On that day, an unrecorded sidebar conference was conducted. After the conference, the defendants’ counsel asked the trial court to take the rule to show cause off the calendar and indicated that Pizarro’s counsel would provide some dates for Pizarro’s deposition.

During the next month, Pizarro’s counsel and the defendants’ counsel attempted to set a date for Pizarro’s deposition. The parties eventually agreed on a date, but when Pizarro’s counsel learned that the defendants intended to videotape the deposition, he objected to voluntarily providing Pizarro for a videotaped deposition. Because Pizarro’s counsel objected to providing Pizarro for a videotaped deposition, the defendants filed a motion to compel Pizarro’s attendance for a videotaped deposition. That motion was set for hearing before the trial court on October 3, 2007. At the hearing, Pizarro’s counsel addressed the trial judge in an effort to explain his resistance to the videotaping of Pizarro’s deposition, and the following exchanges took place:

[PIZARRO’S COUNSEL]: Your Honor, If I—
THE COURT: “[L]et me just tell you something before we get started. This is not a civil case. This is a criminal case. Over here in criminal court people come to their deposition or they go to jail. We don’t play games and have sideshows like they do over at 73 West Flagler about depositions and who and when and at what time, what conditions and what I’m going to wear, what you are going to wear, and it is “Excuse me, don’t excuse me.”
We don’t do that over here. He is going to show up. We are not playing games.
[PIZARRO’S COUNSEL]: Nobody is playing games here.
THE COURT: It looks like it to me.
[PIZARRO’S COUNSEL]: Well, your honor, fundamentally here the victim has not been properly served, and if the court wants to go into that I am perfectly willing to do that.
THE COURT: Well ... you are the one that didn’t want to proceed with the rule to show cause, I believe when we were here the last time. You had a big problem with that. So we tabled that because of your agreement to make this gentleman available.
Now we are back here in the same situation we were in the last time except a few more games and maybe a few more hours have been billed to these people.
[PIZARRO’S COUNSEL]: Also, your Honor, I am going to file a declaration regarding the service of process to establish that the victim here has not be [sic] properly served and without proper service the court cannot compel him to appear for deposition.
THE COURT: Well, I am compelling him to appear.
[PIZARRO’S COUNSEL]: Your Honor, may I just—
THE COURT: If you want to continue to play games then you are going to spend a lot of time together.
[PIZARRO’S COUNSEL]: Your Honor, we are agreeing to have the deposition. We offered that, but there were certain conditions that—
THE COURT: You are not — you don’t have the right to dictate the conditions, just like you attempted last time to dictate where the deposition was going to be held. There are three places it can be held, that’s it.
You are not going to put it in your office, you are not going to take it downtown. It is the State Attorney, the PD or the court, that’s it.
[PIZARRO’S COUNSEL]: I agreed to do it at the State Attorney’s Office.
THE COURT: Of course, after I advised you that you didn’t have the right to even dictate the location, as you attempted to do. I don’t know what it is about this case.
[PIZARRO’S COUNSEL]: I don’t recall.
THE COURT: Oh, I do. I am sure if we order a transcript it will be real clear because I remember that very specifically, but I don’t know what the game is with this case. I don’t know what the deal is with this guy.
I have never seen a case where you have an alleged victim of an alleged crime who doesn’t want to show up and testify to take his deposition, who hires a lawyer to play games to avoid a deposition. It is absurd.

(Emphasis added).

The trial judge granted the defendants’ motion to compel Pizarro’s videotaped deposition. Thereafter, the State filed a motion to disqualify the trial judge, arguing that the hostile comments directed by the trial judge at Pizarro’s counsel established a well-founded fear that the State would not receive a fair trial. The trial judge denied the motion as legally insufficient, and this petition followed.

The test for determining the legal sufficiency of a motion to disqualify is whether the motion shows “a well-grounded fear that the movant will not receive a fair trial at the hands of the judge.” MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990). “A determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). Furthermore, “[i]t is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.” Id. at 1086 (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938)). The facts disclosed in the record before this Court establish the legal sufficiency of the State’s motion, and therefore, we grant the petition for writ of prohibition.

At the October 3, 2007, hearing on the defendants’ motion to compel, before Pizarro’s counsel was able to make a substantive statement on the record, the trial judge accused him of playing games and admonished him about the stricter procedural standards involved in criminal court. The trial judge then suggested that Pizarro’s counsel was deliberately delaying the proceedings to accrue greater hourly fees. The trial court went on to threaten Pizarro and his counsel with jail time should Pizarro’s counsel continue to “play games,” or in other words, make his arguments in opposition to the motion at issue before the trial judge.

It is critical to note that in the midst of the trial judge’s diatribe, Pizarro’s meritorious arguments were largely ignored. Pizarro’s counsel did not refuse to produce his client for deposition, instead, he objected to the defendants’ request to videotape the deposition, though that objection was never specifically addressed. Due to the trial judge’s anger, she failed to consider or to resolve the issue of whether Pizarro’s agreement to appear for a deposition on a mutually acceptable date, without being properly served, was a waiver of his right not to appear without being properly served, if the terms under which he agreed to voluntarily appear, were altered. Pizarro’s counsel explained that when he agreed to voluntarily produce his client for a deposition, the defendants’ counsel did not seek to videotape the deposition. It was only after the defendants’ counsel altered the terms that he objected to producing his client. The privacy and harassment issues raised by the potentially unnecessary videotaping of Pizarro were similarly cast aside. While the actual legal resolution of these issues is now irrelevant, because this Court denied the request for a stay and the deposition was taken pursuant to the trial court’s order, the aftertaste of the proceedings fingers, as does the fear by the State and Pizarro that they will not receive a fair trial.

Pizarro is the alleged victim of the charged offenses. The speed with which the trial court not only dismissed Pizarro’s arguments, but also attacked his character and that of his counsel, threatening them with imprisonment, would justifiably place a reasonably prudent person in fear of not receiving a fair and impartial trial. If the trial judge considers the alleged victim to be a game-player whose actions are absurd, then the State, by proceeding with its prosecution before this judge, runs the risk that the trial court’s rulings might be influenced by these expressed impressions.

While each of these facts, standing alone, would likely not demand recusal or disqualification of the trial judge, in fight of all the relevant circumstances, we are unable to say that the State’s fear of bias in the coming proceedings is unreasonable. The State has demonstrated a well-founded fear that its entitlement to the “cold neutrality of an impartial judge,” State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939), has been compromised.

Petition granted.

      . Originally, Gonzalez was also charged with two counts of grand theft. However, the petitioner filed a written nolle prosse of the grand theft counts on May 31, 2007.


text:
    SALTPONDS CONDOMINIUM ASSOCIATION, INC., Appellant, v. Charles McCOY, Appellee.
    No. 3D07-1360.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    McConnell Lipton LLP and H. Hugh McConnell, Coral Gables, for appellant.
    Claudia Medina Thomas, Tampa, for ap-pellee.
    Before COPE, GREEN, and SALTER, JJ.
   COPE, J.

Saltponds Condominium Association, Inc. appeals an order of dismissal. We conclude that the statute of limitations defense was not sufficiently clear on the face of the amended complaint so as to allow dismissal.

The Association brought suit seeking damages for alleged construction defects in its condominium buildings. Defendant-appellee Charles McCoy was the architect.

The amended complaint alleged that turnover of control from the developer to the Association occurred on August 1, 2002. The Association attached to its complaint a 2005 report from an engineering firm identifying various defects in the condominium buildings. The amended complaint asserted that the building defects “are not readily recognizable by persons who lack special knowledge or training, or are hidden by components or finishes, and are latent.” The Association said that it had complied with chapter 558, Florida Statutes, by serving all defendants with the report and giving them an opportunity to inspect and correct the defects.

The architect moved to dismiss, arguing that the lawsuit was barred by the statute of limitations. He maintained that this could be determined from the face of the report attached to the amended complaint. The architect acknowledged that the amended complaint alleged the defects to be latent, but maintained that the engineering report showed the defects to be patent, not latent. He contended that since the report was attached to the amended complaint, it negated the Association’s allegations that the defects were latent.

Based on the premise that the defects were patent, the architect then argued that the limitation period began to run on the date of turnover of the condominium to the Association. See § 718.124, Fla. Stat. (1995); Charley Toppino & Sons, Inc. v. Seawatch at Marathon Condo. Ass’n, Inc., 658 So.2d 922, 925 (Fla.1994). The parties agree that the applicable limitation period would be four years. See § 95.11(3)(a), Fla. Stat. (2006). Since the lawsuit was filed over four years after the turnover date of August 1, 2002, the architect contended that the suit was time barred. The trial court agreed and dismissed the amended complaint. The Association has appealed.

We conclude that the amended complaint should not have been dismissed. That is so because the face of the complaint does not establish conclusively that the action is time barred, nor does it establish conclusively that the Association will be unable to allege facts in avoidance of the applicable statute of limitations. The First District has explained:

[T]he statute of limitations and laches are affirmative defenses which should be raised by answer rather than by a motion to dismiss the complaint; and only in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law, should a motion to dismiss on this ground be granted. Since the statute of limitation[s], being an affirmative defense, may be avoided by facts alleged in a reply, in order to grant the motion to dismiss the allegations of the complaint must also conclusively negate any ability on the part of the plaintiff to allege facts in avoidance of the applicable statute of limitations by way of the reply.

Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987) (emphasis added; citations omitted); see also Levine v. Levine, 734 So.2d 1191,1195 (Fla. 2d DCA 1999).

The architect based his argument for dismissal on the contention that the engineering report attached to the amended complaint showed the defects to be patent, not latent. He took that position because the engineering report stated that the engineers based their work on a visual inspection of the buildings, without engaging in any destructive testing. According to the architect, this meant as a matter of law that the defects were patent, not latent.

We are unable to subscribe to that view. Within the report there are several defects about which the engineers could not reach a conclusion and recommended further testing. For example, the engineers suspected moisture inside the walls and recommended that “[e]xterior wall plugs 12" x 12" should be removed at selected areas to determine if there is moisture within the cavity.” They recommended further testing to determine whether there was mold or mildew within the walls. They recommended further investigation of cracking in the floor slabs to ascertain whether a structural problem exists. In such instances the engineers were describing defects that were latent: a visual examination was not enough and further work would be needed to ascertain the existence or nonexistence of the suspected defects.

The engineering report also lists a number of other defects which the engineers were able to evaluate on the basis of a visual inspection. However, the listing of these defects only meant that the defects were obvious to trained professional engineers. It does not follow that the defects are automatically obvious, and therefore patent defects, to the Association.

In Kala Investments, Inc. v. Sklar, 538 So.2d 909 (Fla. 3d DCA 1989), a building had been built with a fourth floor window which had been installed close to the floor and did not have a guard rail or other protective device. A child fell through the window and was injured. The defendants argued that this was a patent defect because everyone could see the window, which was

“obviously” almost a foot lower than the code requirement and “obviously” did not contain a guard rail. But the test for patency is not whether the object itself or its distance from the floor was obvious to Kala, but whether the defective nature of the object was obvious to Kala with the exercise of reasonable care.

Id. at 913 (some emphasis in original; some emphasis added; citation omitted). This court went on to say that in the absence of any showing of Kala’s actual knowledge of the code violation or special expertise in the protection of such openings, it was a factual issue whether the defect was latent. Id. (describing latent defect as one which is “not apparent by use of one’s ordinary senses from a casual observation of the premises or ‘hidden from the knowledge as well as from the sight and ... not [discoverable] by the exercise of reasonable care[.]’ ”) (citations omitted).

The engineering report attached to the amended complaint in this case does not conclusively establish, at this stage, that the defects are patent. Where the defect is latent, the limitation period “runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.” § 95.11(3)(e), Fla. Stat. (2006).

Finally, the Association is also correct in saying that the facts of the amended complaint do not conclusively negate the possibility that the Association may also be able to plead an avoidance of the statute of limitations. We say that because the amended complaint alleged that the Association provided the defendants notice and an opportunity to repair under chapter 558, Florida Statutes (2005). Under section 558.004, the mailing of the written notice tolls the applicable statute of limitations for time periods which are specified in the statute. Id. § 558.004(10).

We reject the architect’s argument that it was the Association’s burden to include in the amended complaint all facts which might constitute an avoidance of the statute of limitations. As the Second District has explained, in this situation the appropriate procedure is to deny the motion to dismiss, thus leaving it to the defendant to assert the statute of limitations as an affirmative defense. Levine, 734 So.2d at 1195. The Association would then have an opportunity to file a reply in which it would plead facts in avoidance. Id. “With the issues thus framed by the pleadings, the parties could then develop evidence' that would permit disposition of the limitations defenses on motion for summary judgment or at trial.” Id. (citation omitted).

For the stated reasons we reverse the dismissal order. This ruling is without prejudice to the court to revisit the limitations issue on a proper motion for summary judgment or at trial.

Reversed and remanded for further proceedings consistent herewith.

      . The Association also sued the developer and general contractor.

      . According to the amended complaint, construction was complete as of September 9, 1996.

      . Both parties have relied on the 2006 version of the statutes, but in reality an earlier version would be applicable. See Sabal Chase Homeowners Ass’n, Inc. v. Walt Disney World Co., 726 So.2d 796, 798 (Fla. 3d DCA 1999). For present purposes this makes no difference, for it appears the relevant statutory language has not changed.

      . Chapter 558 was created in 2003. Ch.2003-49, Laws of Fla. As amended in 2004, chapter 558 applies to all actions commenced on or after July 1, 2004. Ch.2004-342, § 5, Laws of Fla. The present action was filed on August 21, 2006. There were statutory changes to other parts of the statute, but not the cited provision, effective October 1, 2006. Ch.2006-281, Laws of Fla.


author: EMAS, KEVIN M., Associate Judge.

text:
    Allen PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1824.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2007.
    Rehearing Denied Feb. 5, 2008.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   EMAS, KEVIN M., Associate Judge.

In this case, we consider whether an erroneous but agreed-upon jury instruction on an affirmative defense constitutes fundamental error. Under the totality of the circumstances of this case, we find no fundamental error and affirm.

Broward County Sheriff Deputy Wash-ecka was in uniform and on patrol in the late evening hours when she encountered Allen Phillips riding a bicycle without a headlight. Deputy Washecka stopped Phillips for this violation and called in Phillips’ name to dispatch to determine whether Phillips had any outstanding warrants. Washecka received preliminary information indicating that Phillips had an outstanding warrant. Phillips grew increasingly fidgety and nervous, and Deputy Washecka became so concerned that she decided to handcuff Phillips while awaiting further confirmation of Phillips’ warrant status. As Washecka attempted to handcuff Phillips, he pulled away from her, grabbing Washecka’s leg above the ankle and causing her to fall. Phillips then hit Deputy Washecka in the face and fled the scene. Washecka issued a BOLO with Phillips’ description and a K-9 unit arrived to help locate and apprehend Phillips.

Police soon determined Phillips’ location, and uniformed K-9 Deputies James and Olarte responded to a house where Phillips was hiding. James and Olarte went inside the house with the police dog. At some point during the encounter in the house, the police dog was released to subdue Phillips. Deputies James and Olarte attempted to restrain and arrest Phillips, who was flailing, kicking, resisting and otherwise attempting to get away from the deputies and the dog. During this struggle, an additional deputy arrived (Deputy Maio) and entered the house to assist in Phillips’ capture. At different points in the struggle, Phillips bit Deputies James and Maio. Deputy Washecka remained outside the house during the entire episode.

Phillips was charged by information with ten counts: four counts of battery on a law enforcement officer; four counts of felony battery; and two counts of resisting an officer with violence. Following trial, Phillips was convicted of one count each of battery on a law enforcement officer, felony battery, and resisting an officer with violence (each of those counts involving the same victim, Deputy Washecka). The jury acquitted Phillips of one count of battery on a law enforcement officer and one count of resisting an officer with violence (involving the same alleged victim, Deputy Maio); and deadlocked on the five remaining counts (involving alleged victims Deputies James and Olarte). Phillips has raised four issues on appeal, only one of which merits discussion.

At trial, Phillips relied upon the affirmative defense of duress or necessity. Phillips attempted to establish that his actions toward the deputy inside the house were necessitated by the police releasing the dog that attacked and bit him, forcing him to protect himself. Phillips argued that anything he might have done to Deputies Maio, James and Olarte was simply an effort to get away from the unwarranted assault of the police dog.

The State and defense agreed upon the following jury instruction, which was read to the jury. A written set of the entire instructions was provided to the jury during its deliberations:

3.6(k) Duress or Necessity
An issue in this case is whether Allen Phillips acted out of duress/necessity in committing the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery.
It is a defense to the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery, if the defendant acted out of duress/necessity. In order to find the defendant committed the crimes of Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, or Battery out of duress/necessity, you must find the following six elements:
1.
2.
3.
^
Ol
05
If you find from the evidence that the defendant committed the Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, and Battery out of duress/necessity, you should find the defendant not guilty.
However, if you find that the defendant committed the Battery on a Law Enforcement Officer/Battery, Resisting With Violence/Resisting Without Violence, and Battery out of duress/necessity[,] you should find the defendant guilty if all the elements of the charge have been proved, (emphasis added).

Phillips acknowledges that he agreed to the wording of the instruction above and failed to object or otherwise preserve this issue. He contends, however, that the erroneous instruction constitutes fundamental error and warrants a new trial. We disagree.

Jury instructions are subject to the contemporaneous objection rule, see Fla. R.Crim. P. 3.390(d), and in the absence of a contemporaneous objection at trial, relief regarding an error in an instruction will be granted only if the appellate court determines the error is fundamental. Archer v. State, 673 So.2d 17 (Fla.1996). To be considered fundamental, “ ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Broivn v. State, 124 So.2d 481, 484 (Fla.1960)). The concept of fundamental error is rooted in notions of due process, Sochor v. State, 619 So.2d 285 (Fla.1993), and appellate courts have been cautioned to exercise “ Very guardedly’ ” their discretion concerning fundamental error, and to apply the doctrine only in rare cases. Ray v. State, 403 So.2d 956, 960 (Fla.1981) (quoting Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970)); Smith v. State, 521 So.2d 106 (Fla.1988). Where, as in the present case, the alleged error relates to a flawed affirmative defense instruction, the error will be considered fundamental only if the instruction was so flawed that it denied the defendant asserting the affirmative defense a fair trial. See Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000) (quoting Smith, 521 So.2d at 107-08).

Whether an erroneous jury instruction constitutes fundamental error cannot be made in a vacuum; it must be based upon the totality of the circumstances of each individual case. As this court has previously stated: “[T]he determination of whether fundamental error occurred requires that the ... instructions be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case....” Garzón v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla. 2007); see also Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review granted, 959 So.2d 717 (Fla.2007); Harris v. State, 937 So.2d 211 (Fla. 3d DCA), review dismissed, 942 So.2d 413 (Fla.2006); Pratt v. State, 429 So.2d 366 (Fla. 1st DCA 1983).

Although not an exhaustive list, the following are relevant circumstances to consider:

— the nature of the offense(s) charged and the defense(s) raised by the defendant, McJimsey v. State, 959 So.2d 1257 (Fla. 4th DCA 2007); Grier v. State, 928 So.2d 368, 369-70 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007), and cases cited;
— the issues disputed at trial and whether any factual issues, including any elements of the offense, were conceded or necessarily admitted at trial, Reed v. State, 837 So.2d 366 (Fla.2002); State v. Delva, 575 So.2d 643 (Fla.1991); Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001);
— the evidence presented and arguments made by counsel during trial, Floyd v. State, 850 So.2d 383 (Fla.2002); Garzón v. State, 939 So.2d 278 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla.2007); Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000); Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review granted, 959 So.2d 717 (Fla.2007);
— the nature of the erroneous instruction (e.g., element of the crime, affirmative defense), Garcia v. State, 901 So.2d 788, 793 (Fla.2005), and cases cited; Sochor v. State, 619 So.2d 285 (Fla.1993); whether the erroneous instruction negated defendant’s sole defense, Barnes v. State, 868 So.2d 606, 607-08 (Fla. 1st DCA 2004); Carter v. State, 469 So.2d 194 (Fla. 2d DCA 1985);
— whether the error is one of inclusion or omission (e.g., adding an uncharged element or omitting an essential element), or is a failure to give an instruction entirely, State v. Weaver, 957 So.2d 586 (Fla.2007); Martinez;
— the other instructions given to the jury and the effect of those instructions on the erroneous instruction, State v. Wilson, 686 So.2d 569 (Fla.1996); Diecidue v. State, 181 So.2d 7 (Fla.1961); and
— the relationship of the erroneous instruction to the verdict rendered, State v. Lucas, 645 So.2d 425 (Fla.1994); Martinez.

The circumstances listed above simply represent an extension of the concept that “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 868 (Fla.1982). Phillips is required to demonstrate that, in light of the totality of the circumstances, the instruction was so erroneous it “must [have] affect[ed] the validity of the trial to the extent that the verdict would not have been the same if the error had not occurred.” Pena v. State, 901 So.2d 781, 786 (Fla.2005).

A review of the totality of the circumstances in this case compels a conclusion that no fundamental error was committed and the failure to preserve this error by contemporaneous objection is fatal to the claim.

1. The other instructions given to the jury

Although the other jury instructions in the case do not provide meaningful context, it is helpful to consider the balance of the duress or necessity instruction itself. The instruction on duress or necessity was a full page long, and it was correct in every respect save the final paragraph. A complete copy of the instructions was sent into the jury room when the jury retired to begin its deliberations.

The court advised the jury in the two introductory paragraphs that one of the disputed issues in the trial was whether Phillips acted out of duress or necessity. The jury was unequivocally instructed that “fflt is a defense to the crime of battery on a law enforcement officer, battery, resisting with violence, resisting without violence, or battery if the defendant acted out of duress or necessity.” The trial court then correctly explained the six elements that Phillips was required to prove to establish this affirmative defense. The trial court concluded the duress or necessity charge as follows:

If you find from the evidence that the defendant committed the [crimes charged] out of duress or necessity, you should find the defendant not guilty. However, if you find that the defendant committed the [crimes charged] out of duress or necessity you should find the defendant guilty if all of the elements of the charge have been proved.

The final sentence of the instruction obviously should have read: “However, if you find from the evidence that the defendant did not commit ...While the erroneous instruction would naturally cause some confusion, this did not transform the error into one that reached down into the validity of the trial. The instruction at issue contained what most would perceive as a scrivener’s error. Given the entirety of the duress or necessity instruction, we are convinced that any reasonable juror would have reached this same conclusion. Our determination is supported by a review of the other circumstances of the trial, which, notwithstanding the error, confirm that the jury correctly applied the law on the duress or necessity defense to the facts of this case.

2. The nature of the charges, the defense, the evidence and the arguments of counsel

Phillips did not assert the duress or necessity defense to all ten counts, but only to the seven counts arising out of his apprehension inside the house with the police dog. Phillips did not claim that he acted out of duress or necessity during the earlier incident in the street with Deputy Washecka. This is most clearly shown by the closing argument presented by Phillips’ counsel:

You will get from the Judge ... a duress or necessity instruction which says, it is a Defense if the defendant acted out of duress or necessity. In order to find the defendant committed the charge out of duress you must find that the defendant reasonably believed an emergency existed which was not intentionally caused by himself. He didn’t cause anything. The danger threatened significant harm to him, yeah, a 70 pound German Shepard (sic) trained to rip your eyes out.
I say teeth sinking into any parts of your body is pretty much a dangerous or serious bodily injury. The defendant’s harm must be real [imjminent and impending. Well, it doesn’t get any realer, if I can invent a word here, than having a dog snarling and barking at you that’s trained to attack about six inches or a foot from your face moving towards you as you keep moving back.
We have raised that defense. Before you can convict Allen you have to conclude beyond and to the exclusion of every reasonable doubt that that defense doesn’t wash, that that defense doesn’t have any merit to it.

3. The relationship of the erroneous instruction to the verdict rendered

The limited nature of the defense (i.e., raised only in defense of the seven counts arising from the confrontation with the police dog in the house) is significant because the jury found Phillips guilty of only three counts: Battery on a Law Enforcement Officer, Felony Battery, and Resisting an Officer With Violence. Each of these counts involved Deputy Washecka as the victim, and each of these three counts involved the earlier encounter in the street, not the confrontation in the house with the other Deputies and the police dog. The jury acquitted or deadlocked on the seven counts arising from Phillips’ actions inside the house.

Phillips cannot establish that the “verdict of guilty could not have been obtained without the assistance of the alleged error,” Delva, 575 So.2d at 645, because the jury convicted Phillips of the three counts that did not involve the defense of duress or necessity. The instruction in this ease, while erroneous, was not fundamentally so, and it did not deprive Phillips of his right to a fair trial.

Affirmed.

KLEIN and GROSS, JJ., concur.

      . Prior to sentencing, Phillips pled nolo con-tendere to the five counts on which the jury deadlocked, and the trial court sentenced Phillips on those counts (together with the three he had been found guilty of at trial) to concurrent terms of six years in prison as a habitual offender, with a five-year minimum mandatory on each count as a prison releasee reoffender.

      . This portion of the standard jury instruction reads: "However if you find that the defendant ■ did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity] you should find the defendant guilty if all the elements of the charge have been proved.” Fla. Std. Jury Instr. (Crim.) 3.6(k).

      . Although this totality of the circumstances test necessarily involves an assessment of the relative prejudice or harmfulness of the erroneous instruction, it should not be equated with a harmless error analysis, which requires the error be preserved, imposes substantially different burdens on the parties and involves substantially different considerations. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Moreover, as the supreme court has held, fundamental error is not subject to a harmless error review. Reed v. State, 837 So.2d 366, 369-70 (Fla.2002).


text:
    Carlos A. VALDERRAMA and Leonor I. Valderrama, Appellants, v. PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellee.
    No. 3D07-1324.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2007.
    J. Wil Morris, for appellants.
    Jason S. Dragutsky, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Appellee, Portfolio Recovery Associates, LLC (“Portfolio”), filed this action against appellants, Carlos A. Valderrama and Leonor I. Valderrama, as an owner and holder of a debt assigned from the original lender. After appellants filed their answer and affirmative defenses to the complaint, Portfolio filed a motion for summary judgment. In support of its position, Portfolio filed an affidavit attesting to appellants’ debt in the amount of $17,243.44 which was owed to Portfolio as assignor of the debt.

Carlos Valderrama then filed a con-clusory affidavit (the “Appellants’ Affidavit”) on behalf of both appellants, but sworn only by him, which stated they have no agreement with Portfolio and were not indebted to Portfolio.

The circuit court ultimately granted Portfolio’s motion and entered a final summary judgment against the defendants. We agree that the Appellants’ Affidavit raises no issues of material fact. “A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counterevi-dence sufficient to reveal a genuine issue.” Landers v. Milton, 370 So.2d 368, 370 (Fla.1979). Given that the defendants have raised no genuine issues of material fact, summary judgment was proper.

Affirmed.


author: CASANUEVA, Judge.

text:
    Joseph Lushington GARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2645.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2007.
    Rehearing Denied Feb. 8, 2008.
    James Marion Moorman, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Joseph Lushington Garrell contends that several instances of trial court error warrant a new trial. We agree with his contention that the trial court erred by providing the jury with an instruction on the justifiable use of force that included the forcible-felony exception to self-defense. Accordingly, we reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BASIS

Following a trial by jury, the trial court granted defense motions, which resulted in Mr. Garrell being convicted of one count of the second-degree murder of David Simpson and one count of the attempted second-degree murder of Antonio Ramsey. Initially, the charges were, respectively, first-degree murder and attempted first-degree murder, based on Mr. Garrell’s shooting of each victim. The facts preceding the shooting incident critically pertain to the challenged jury instruction.

The two shooting victims were part of a gang of four who set in motion the events leading ultimately to the shooting incident. The four conspired to arrange a drug buy where the drug seller would be relieved of the drugs, the money, or both. One of the four set the plan in motion by placing a telephone call to Franz Cargill, Mr. Gar-rell’s friend, to arrange the deal. With the drug sale arranged, Mr. Cargill then telephoned Mr. Garrell with instructions to complete the transaction. Mr. Garrell was to meet the prospective buyer at his apartment complex’s parking lot. The four arrived at the parking lot in a Cavalier automobile and there they separated. One remained in the car to meet Mr. Garrell while the remaining three placed themselves at strategic locations enabling them to intercept Mr. Garrell before he could return to the safety of his apartment. Here, the trial testimony diverged. The would-be robbers offered testimony that Mr. Garrell was not robbed in the Cavalier or intercepted on his return. However, Mr. Garrell testified that when the Cavalier’s occupant lifted his clothing to display a firearm, Mr. Garrell relinquished two ounces of marijuana and fled to his apartment, passing three threatening-looking strangers.

Ensconced in his apartment, Mr. Garrell called Mr. Cargill and told him what had transpired. Sufficiently perturbed, Mr. Cargill arrived at the apartment complex approximately a minute later, picked up Mr. Garrell, and began a driving search for the Cavalier. Ultimately, Mr. Cargill saw the Cavalier exiting a nearby apartment complex and followed it into a McDonald’s restaurant parking lot. Mr. Car-gill maneuvered his car so that it blocked the Cavalier, and for approximately thirty seconds he yelled at the car’s occupants. Then Mr. Cargill made a fateful decision which tragically impacted the lives of Mr. Simpson, Mr. Ramsey, and Mr. Garrell: he handed a loaded, operable handgun to Mr. Garrell and indicated that Mr. Garrell should do something about the robbery. Exiting the car, Mr. Garrell fired at least five shots, causing Mr. Simpson’s death and wounding Mr. Ramsey.

At the close of evidence, Mr. Garrell sought a special jury instruction on the justifiable use of deadly force. The State objected. The trial court declined to give the special instruction and, instead, gave a subset of the standard jury instruction which contained, in part, the following language:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find that Mr. Garrell was attempting to commit or committing or escaping after the commission of a robbery, or that Mr. Garrell initially provoked the use of force against himself, unless the force asserted against Mr. Garrell was so great that he reasonably believed that he was in imminent danger of death or great bodily harm.

ANALYSIS

The jury instruction at the heart of this appeal is commonly known as the forcible-felony exception to self-defense. It is contained within Florida Standard Jury Instruction (Crim.) 3.6(f) titled “Justifiable Use of Deadly Force.” Its statutory point of origin is section 776.041, Florida Statutes (2003). Titled “Use of Force by Aggressor,” this statutory provision removes the defense of the justifiable use of force as codified by section 776.012, from a person who acts in one of two ways: first, the person attempts to commit, is committing, or is escaping after the commission of a forcible felony; or, alternatively, the actor provokes the use of force against himself.

“It is well established that this standard instruction is not appropriate unless the defendant is charged with an independent forcible felony, in addition to the offense for which he claims self-defense.” Smith v. State, 933 So.2d 1275, 1276 (Fla. 2d DCA 2006). It is for this reason that the forcible-felony exception contains the following directives: “Insert and define applicable forcible felony that defendant alleges victim was about to commit.... Give only if the defendant is charged with more than one forcible felony.... Define applicable forcible felony.”

Here, Mr. Garrell was not charged with a separate forcible felony nor was either victim at the time of the shooting engaged in the perpetration of a felony. Furthermore, the robbery portion of the challenged instruction referred to an offense for which Mr. Garrell was the intended victim. Clearly, the record indicates that as to the murder charge and as to the attempted murder charge, Mr. Garrell asserted that he was not guilty of either because he acted in self-defense. He argued that his self-defense caused each shooting to be justifiable. Accordingly, there being no separate forcible felony to which the instruction would apply, it was error for the trial court to provide this instruction to the jury. The instruction is normally given where “the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004) (internal quotation omitted).

Our examination of the record reveals that Mr. Garrell’s counsel did not object to the improper instruction. In the absence of a contemporaneous objection, Mr. Gar-rell can be afforded relief only if the error is deemed fundamental. Davis v. State, 661 So.2d 1193, 1197 (Fla.1995), receded from in part on other grounds, Mack v. State, 823 So.2d 746, 748 (Fla.2002). In York v. State, 932 So.2d 413 (Fla. 2d DCA 2006), this court held:

[T]he giving of an instruction similar to the instruction at issue here was fundamental error. Citing the rule stated in Reed v. State, 837 So.2d 366 (Fla.2002), that an erroneous instruction defining an element of a crime is fundamental error if the element was disputed at trial, we concluded in Zuniga that “[t]he self-defense instruction can be likened to an element of the offense for its importance to the defendant,” and we therefore held that the error was fundamental “because the erroneous instruction was relevant to the disputed issue at trial.”

York, 932- So.2d at 415. Previously, this court has also held that the inappropriate providing of this instruction constitutes fundamental error because “the instruction is ‘circular and confusing to the jury’ ” in that “it improperly instructs the jury that the very act that the defendant seeks to justify as an act of self-defense prevents the same act from being an act of self-defense.” Wilson v. State, 944 So.2d 1244, 1246 (Fla. 2d DCA 2006) (citing Giles v. State, 881 So.2d 1263, 1266 (Fla. 4th DCA 2002)). Here, to instruct the jury that the accused was not entitled, as a matter of law, to use force in self-defense if he was committing, attempting to commit, or escaping after committing a crime (here, robbery) that he was not charged with is clearly confusing, circular, and likely to negate the very defense he interposed. This is particularly so when the record suggests the robbery was intended to be perpetrated against Mr. Garrell. Consistent with this court’s precedents, we hold the error here was fundamental.

Accordingly, we reverse and remand for a new trial.

FULMER, J., Concurs in result only.

WALLACE, J., Concurs.

      . The record reflects that on June 5, 2006, defense counsel moved for and was granted a reduction in count 2 to attempted murder in the second degree. Sentencing occurred that same day. We call the circuit court’s attention to a scrivener’s error in the written order of judgment and sentence which improperly reflects that Mr. Garrell was adjudicated on count 2 of "attempted murder in the first.”


author: CASANUEVA, Judge. SILBERMAN, Judge,

text:
    Albert SCHORNBERG and Cindy Schornberg, Individually and as Parents of LaShalle Schornberg, a minor, Appellants, v. PANORAMA CUSTOM HOME BUILDERS, INC., and Roy Lansdown, Individually, Appellees.
    No. 2D07-87.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    Michael L. Childress, and Edward Es-hoo, Jr. of Childress Duffy Goldblatt, Ltd., Chicago, IL, for Appellants.
    Scott A. Beatty of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Ap-pellees.
   CASANUEVA, Judge.

Albert and Cindy Schornberg appeal an adverse final summary judgment in their lawsuit alleging defective construction of their home. In January 1998, they contracted with Appellee Panorama Custom Home Builders, Inc., through its president, Appellee Roy Lansdown, to build a $2,520,000 single-family custom home on Marco Island, Collier County, Florida. Construction was completed sometime in 2001. In May 2003, while conducting remodeling work, Mr. and Mrs. Schornberg discovered evidence of pervasive water intrusion into the home, intrusion which had allowed the growth and proliferation of mold and bacteria throughout the home to the extent that they had to evacuate while repairs were undertaken. In November 2004, they filed a four-count complaint against Panorama and Mr. Lansdown but, in December 2006, suffered the adverse summary judgment that they now appeal. We reverse.

Proceedings Leading Up To The Summary Judgment

The Schornbergs’ four-count complaint, to which the construction contract was attached, sounded in breach of contract, breach of implied warranty, negligence, and a statutory cause of action under Florida’s Unfair and Deceptive Trade Practices Act. Panorama answered and asserted various affirmative defenses, attaching a “Mutual Release Agreement” the parties executed on August 13, 2001, that it submitted precluded the Schornbergs’ claims. Paragraph 2.2 of the Mutual Release Agreement is the focus of the motion for summary judgment, the final summary judgment, and this appeal. It provides the following:

Effective as of the Effective Date, Homeowner, on behalf of itself and its attorney, agents, transferees, successors and assigns, hereby releases and discharges Builder and its respective agents, attorneys, contractors, subcontractors, transferees, successors and assigns from any and all claims, losses, liabilities, actions, causes of action, damages, suits, demands, liens, interest, debits, contracts, obligations, costs and expenses, including, without limitation, attorneys’ fees, of any nature whatsoever, known or unknown, suspected or unsuspected, existing at any time on or before the Effective Date, whether in tort or in contract, incurred by Homeowner arising from, relating to, or in any way connected with the Agreement or the home.

Paragraph 1 of the Mutual Release Agreement states that the mutual releases “shall be effective on the date of ‘Closing’ as that term is further defined below.” Paragraph 4 further provides that “Closing” occurs “on the date Bank One releases the final draw to Builder, as approved by Homeowner, in full payment of the Settlement stated above.” During the subsequent pretrial discovery period, and in the relevant response to a request by Panorama for admissions, Mr. and Mrs. Schornberg admitted that “Closing” occurred “before August 31, 2001.” They also admitted that a certificate of occupancy was issued for the residence on July 19, 2000.

In its final summary judgment, the circuit court did not explain the basis for its ruling. Panorama had posited two bases in its motion for summary judgment: (1) all of the Sehornbergs’ claims were barred by the Mutual Release Agreement and (2) their warranty claim under the construction contract was barred because they did not file suit within one year of discovering the latent construction defects. Our disposition of this appeal relates to either basis.

Applicable Law

We review a final summary judgment de novo. Wells v. City of St. Petersburg, 958 So.2d 1076 (Fla. 2d DCA 2007). We require “ ‘[t]he movant for summary judgment [to bear] the burden of demonstrating conclusively that the nonmoving party cannot prevail. If the record raises even the slightest doubt that an issue might exist, summary judgment is precluded.’ ” Pasco v. City of Oldsmar, 953 So.2d 766, 769 (Fla. 2d DCA 2007) (quoting Fatherly v. Cal. Fed. Bank, FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997)). “On appeal from a summary judgment, all facts and inferences are viewed in the light most favorable to the nonmoving party.” Id. (citing Valk v. J.E.M. Distribs. of Tampa Bay, Inc., 700 So.2d 416, 419 (Fla. 2d DCA 1997)). “[A] summary judgment is proper only if there is no genuine issue of material fact_” Wells, 958 So.2d at 1079 (citing Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000)). We conclude the circuit court erred in entering the summary judgment in Panorama’s favor because Panorama has not shown conclusively that there is no genuine issue of material fact or that the Sehornbergs cannot prevail.

Analysis

Our conclusion that there exist genuine issues of material fact results from Panorama’s failure to present undisputed evidence in two regards, both dealing with temporal issues.

First and foremost, the record does not conclusively establish the “effective date” of the Mutual Release Agreement. This is critical because without that date, Panorama cannot show that the Sehornbergs’ claims are barred because they were “of any nature whatsoever, known or unknown, suspected or unsuspected, existing at any time on or before the Effective Date.” The only undisputed evidence the circuit court had before it, when considering the motion for summary judgment, was the construction contract, the Mutual Release Agreement, and the admissions of the Sehornbergs. There were no depositions or sworn affidavits to provide other undisputed, material, factual evidence. The Mutual Release Agreement provides, in Paragraph 1, that the “effective date” is the date of “closing,” defined in Paragraph 4 as the date the financing bank pays the final draw to Panorama. The actual date that the final draw was paid is nowhere in evidence. The Sehornbergs admitted in their response to a request for admissions only that “closing” occurred “before August 31, 2001.” This vague response does not determine an “effective date.” Because this fact is material—-indeed, critical—to any analysis of whether the counts for breach of contract, implied warranty, and unfair and deceptive trade practices are precluded by the Mutual Release Agreement, Panorama, as the movant, has not conclusively established that the Sehornbergs cannot prevail.

The second temporal issue relates to when the mold and bacteria came into existence. There is no evidence whatsoever, undisputed or otherwise, of when the mold and mildew came into existence. This shortfall in the evidence that Panorama put forth to support its motion for summary judgment impacts all counts of the complaint, but especially the count for negligence. The Schornbergs in their complaint state that they were advised in June 2003 that the water intrusion they had detected a month earlier had caused growth of mold and bacteria. However, the complaint is not evidence. Straub v. Village of Wellington, 941 So.2d 1269 (Fla. 4th DCA 2006) (stating that a complaint is not admissible to prove or disprove a fact in issue). Evidence that the mold and bacteria were or were not in existence at the moment of the “effective date” of the Mutual Release Agreement, i.e., when the cause of action for negligence accrued, is needed so the circuit court could properly determine whether the claim for damages was precluded by the language of the Mutual Release Agreement. “[A] cause of action is said to accrue when ‘the last element constituting the cause of action occurs.’ ” Maggio v. Dep’t of Labor & Employment Sec., 910 So.2d 876, 878 (Fla. 2d DCA 2005) (quoting § 95.031, Fla. Stat. (2002)). Damages are an element of a cause of action for negligence. Monroe v. Sarasota County Sch. Bd., 746 So.2d 530, 531 (Fla. 2d DCA 1999) (“[W]e continue to hold, as a general rule, that bodily injury or property damage is an essential element of a cause of action in negligence.”).

Either party, through the use of expert scientific testimony, may be able to establish the time of origin of the mold or bacteria. However, at this early stage of the proceedings and on this record, Panorama has not conclusively shown that the Schornbergs cannot prevail. See Fatherly, 703 So.2d at 1102 (holding that if the mov-ant cannot “demonstrate conclusively” that the nonmovant cannot prevail, summary judgment is precluded).

We reverse the summary judgment and remand for further proceedings on all issues. We fully expect that other motions for summary judgment will likely be filed in the future, after further development of the facts of this case. At that time, the circuit court may be required to resolve as a matter of law whether the mutual release is a general release or if it is ambiguous as to the extent of its scope. We leave those questions to another day. See, e.g., Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61 (Fla. 2d DCA 2005) (holding that summary judgment was precluded because contract clause limiting liability was unclear); Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999) (holding that despite release language discharging defendant from claims “upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents,” release did not bar any claims accruing after the date of execution); Floyd v. Homes Beautiful Constr. Co., 710 So.2d 177, 178, 179 (Fla. 1st DCA 1998) (noting that despite language releasing the defendant from “any claim or cause of action presently existing, whether known or unknown, including but not necessarily limited to the [1986 civil suit],” it was unclear whether the “presently existing” clause barred the action relating to a defect in existence at the time of execution of the release, but unknown to the parties, or whether the language related to causes of action fully accrued at the time of execution); see also, e.g., CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo.Ct.App.2005) (explaining that “[a] general release is an instrument by which one party relinquishes all its claims against another for consideration”; but also stating that “[a] court is to construe a release to effectuate the manifest intention of the parties. Such construction rests on good sense and plain understanding of the words used and the acts directed to be performed.”); Sherman v. Am. Water Heater Co., Inc., 50 S.W.3d 455, 459 (Tenn.Ct.App.2001) (explaining that a general release is not restricted by its terms to particular claims or demands, but covers all claims between the parties “which are in existence and within their contemplation at the time it is executed”).

Reversed and remanded for further proceedings.

VILLANTI, J., Concurs.

SILBERMAN, J., Concurs specially.

SILBERMAN, Judge,

Specially concurring.

I do not join in that part of the majority opinion that addresses the effective date of the Mutual Release Agreement because the parties do not appear to be in disagreement as to the effective date. However, I concur that reversal is required based on the lack of evidence as to when the water intrusion occurred or began to occur and when the mold and bacteria came into existence. Because genuine issues of material fact remain in dispute, the trial court incorrectly entered summary judgment on the basis that the Schornberg’s claim is barred by the Mutual Release Agreement.

      . As part of the negligence count, Mr. and Mrs. Schornberg asserted a personal injury claim on behalf of their minor daughter, LaS-halle, who allegedly suffered allergic and upper respiratory reactions to the unsafe and unsanitary conditions created in the home by the bacteria and mold. This personal injury claim was not subject to Panorama's motion for or the circuit court's order of final summary judgment, and thus it is not part of this appeal.
      We have jurisdiction because the final summary judgment totally disposes of an entire case as to any party. See Fla. R.App. P. 9.110(lc).

        . §§ 501.201-.213, Fla. Stat. (2004).


author: BROWNING, C.J.

text:
    Carlos S. McKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5937.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Carlos S. McKnight (Appellant) appeals orders revoking his probation and sentencing him to prison after the trial court relied on certain testimony that, according to Appellant, was based on evidence obtained during an unlawful seizure and should have been suppressed. Finding no abuse of discretion, we affirm the denial of the motion to suppress and the entry of the final orders revoking probation and sentencing Appellant to prison based on his material violations of Conditions (5) and (18).

In March 2005, Appellant was sentenced to one year and one day in prison, to be followed by ten years’ probation. A May 2006 affidavit alleged that during that probationary period, Appellant had violated 1) Condition (5), by failing to live and remain at liberty without violating the law, in that on May 3, 2006, he was arrested for driving with a suspended or revoked license; 2) Condition (18), by failing to undergo a drug/alcohol evaluation, in that on April 26, 2005, Appellant was instructed to attend an evaluation at River Region Human Services, yet as of May 5, 2006, he had provided no proof of attendance; and 3) Condition (10), by failing to pay court costs to the probation officer pursuant to the court’s agreed payment instructions, in that Appellant owed $4,818.30 to the Washington County Clerk of Court as of May 5, 2006.

By the date of the revocation hearing, Appellant was nearly caught up in paying the court cost arrearage; the trial court concluded that this violation of Condition (10) was not material. Ms. Thomas, Appellant’s probation supervisor, testified that Appellant had not provided documentation of completion of the required drug/alcohol evaluation within the allotted time. The trial court’s finding a violation of Condition (18) based on this non-compliance is supported by competent, substantial evidence and is not challenged on appeal. Rather, Appellant contends that the court erred in finding a violation of Condition (5), in that the inculpatory evidence deriving from Appellant’s contact with the police officers is inadmissible, should have been suppressed, and thus should not have been considered as a factor in revoking probation. See State v. Cross, 487 So.2d 1056 (Fla.1986) (stating that evidence obtained through an unlawful search is inadmissible in a probation revocation hearing).

The parties agree on the appropriate standard of review. In reviewing the denial of a motion to suppress, this court must determine whether the factual findings are supported by competent, substantial evidence, but no deference is due the trial court’s conclusions of law. See Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). Although appellate courts accord a presumption of correctness to the trial court’s rulings on suppression issues regarding the “determination of historical facts,” appellate panels “must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution.” Connor v. State, 803 So.2d 598, 608 (Fla.2001) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). In applying this presumption of correctness regarding historical facts, this court “must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). The decision to revoke probation is reviewed for an abuse of discretion. See Hurst v. State, 941 So.2d 1252, 1253 (Fla. 1st DCA 2006).

Viewed in a light most favorable to the State, see Pagan, the evidence that Appellant sought to suppress established the following facts. The alleged violation of Condition (5) was based on Appellant’s arrest on May 3, 2006, for driving while his license was suspended or revoked. Officer Straitt testified that on that date, he was working in a specialized unit dealing with community problems such as drug and burglary complaints. When on assignment, he wore a uniform identifying himself as a Jacksonville police officer. The police had received a series of citizen complaints about a duplex at 718 Day Avenue in Riverside, where a black male reportedly was selling drugs. Straitt and another officer knocked on a door at that address and hoped to meet with the tenant. Instead, they encountered the landlord, who stated that Shawn Washington rented and lived in that apartment, but no one was there at 4:00 p.m. The police wanted to contact Mr. Washington to determine whether the recent complaints about criminal activity were well-founded. The landlord told the officers that Mr. Washington would be back around 7:00 p.m. Officer Straitt and his partner returned to 718 Day Avenue around 7:00 p.m. and approached the duplex.

Having heard a vehicle drive up, the officers observed a black male (who was identified in court as Appellant) sitting in the driver’s seat of a sports utility vehicle (SUV) in the front driveway. The engine was running, and no one else was in the vehicle. At that point, the police knew only that the suspect, Mr. Washington, was a black male. Over an objection, Officer Straitt testified that as the police approached the stopped vehicle, Appellant opened the door but remained inside. The vehicle was parked close to the front door of Apartment # 718. The police were neither blocking the vehicle nor restraining Appellant’s movement.

Officer Straitt (who was in uniform) introduced himself, stated that he was performing an investigation, and asked (speaking in a conversational tone and without brandishing a weapon) if Appellant was Mr. Washington and whether he lived at # 718. When Appellant stated his name, which is not Washington, Officer Straitt asked for his identification to verify that Appellant was, in fact, not the person the police were investigating for criminal activity and to have a name for the police investigation report indicating persons to whom the officers had spoken. Appellant produced a Florida I.D. card with a red border. The presentation of the I.D. card, under the particular circumstances, led Straitt to suspect that Appellant might be driving without a valid driver’s license. From his experience, Officer Straitt knew that many people with I.D. cards do not have a license. When Officer Straitt asked if Appellant had a valid driver’s license, Appellant told him “no.” When the officer asked whether the license was suspended or revoked, Appellant commented that it was “badly suspended.” Checking the status of the license disclosed that Appellant was a habitual traffic violator. Because that status of violation is a felony, the officers could not merely write a traffic citation. Instead, they arrested Appellant, read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and seized the vehicle. Appellant remarked that the police had not seen him driving the SUV, but he did not comment on the license violation.

As to the events leading to his detention and arrest relating to Condition (5), Appellant notes on appeal that he presented evidence that conflicted with the State’s contention that the officers observed Appellant in the driver’s seat shortly after the SUV arrived at # 718. Appellant testified that an officer mentioned the recent citizen complaints and asked him what was going on. When the officer asked for a driver’s license, Appellant produced an I.D. card and stated he did not have a valid license because it was “badly suspended.” The DHSMV had notified Appellant that his license was suspended for five years. Appellant testified that he did not drive because he knew that doing so without a valid license would violate Condition (5). To the extent that the testimony of Officer Straitt and Appellant conflicted, the trial court exercised its authority as the trier of fact to assess credibility and weigh the evidence in the State’s favor.

The trial court noted that the testimony given by Officer Straitt over a defense objection is dispositive of the issues in Condition (5). The court found that the officers’ contact with Appellant was a consensual police-citizen encounter up to the point where Appellant disclosed a violation of the law: the suspended or revoked license (where, according to the officer, Appellant had been driving the vehicle). Our task is to determine whether, given the facts as found and supported by competent, substantial evidence, the trial court correctly applied the law.

This is not a “traffic stop” case, for the SUV had recently pulled into the driveway and was stationary, with the engine running and Appellant in the driver’s seat. “The Fourth Amendment requires all warrantless ‘seizures’ of a person to be founded upon at least reasonable suspicion that the individual seized is engaged in wrongdoing.” Golphin v. State, 945 So.2d 1174, 1180 (Fla.2006) (citing United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The United Supreme Court made it clear in Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868, that not every encounter between a law-enforcement officer and a citizen is a “seizure.” The Florida Supreme Court has recognized essentially three levels of police-citizen encounters. See Golphin, 945 So.2d at 1180; Popple v. State, 626 So.2d 185, 186 (Fla.1993). The first level, a “consensual encounter,” “involve[s] minimal police contact and do[es] not invoke constitutional safeguards.” Golphin, 945 So.2d at 1180. The second level, an “investigatory stop,” allows a police officer to “detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Id.; § 901.151(2), Fla. Stat. (2006). The third level is an “arrest,” which requires probable cause. § 901.151(4); Golphin, 945 So.2d at 1180.

Determining whether a police-citizen encounter is consensual or has risen to an investigatory stop, for Fourth-Amendment purposes, involves examining the totality of the circumstances surrounding the incident. See Florida v. Bostick, 501 U.S. 429, 439-40, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Butler, 655 So.2d 1123, 1125 (Fla.1995). A law-enforcement officer does not violate the Fourth Amendment simply by approaching someone on the street and asking questions, if the individual is willing to listen. See United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002); Golphin, 945 So.2d at 1181. As the officers investigated recent complaints of crime at 718 Day Avenue and approached the SUV at the specific time when Mr. Washington, known by them to be a black male, was expected to be there, Appellant opened the door of the vehicle. Officer Straitt casually introduced himself, stated that he was performing an investigation, asked for Appellant’s name, and inquired as to whether Appellant lived at that address. Because a reasonable person would have believed he was free to leave, this episode was nothing more than a consensual police-citizen encounter, which did not trigger constitutional safeguards. See Mendenhall, 446 U.S. at 553— 54, 100 S.Ct. 1870; Golphin, 945 So.2d at 1180, 1187-88; Popple, 626 So.2d at 186; State v. Gonzalez, 919 So.2d 702, 703 (Fla. 5th DCA 2006) (stating that in a consensual police-citizen encounter, an officer can approach an individual in public, ask questions, and request identification without having a founded suspicion of criminal activity).

When Appellant orally stated his name as something other than Mr. Washington, Officer Straitt asked for identification to verify Appellant’s identity. The officer testified that he had two reasons for requesting identification: to make sure that the man was not the individual suspected of criminal activity at that location, and to have a name to put in the police investigation report indicating any person(s) to whom the police had spoken. At that point, the episode remained a consensual encounter, not a seizure. See Bostick, 501 U.S. at 437, 111 S.Ct. 2382 (stating than an officer’s request to a defendant for identification is not a detention or seizure); Gol-phin, 945 So.2d at 1180-82 (stating that any police activity that restrains a citizen is a seizure, and such contact can be deemed consensual only if a reasonable person would have felt free to leave); Gonzalez, 919 So.2d at 704.

However, once Appellant (the presumed driver of the SUV) produced the I.D. card rather than a driver’s license, a reasonable suspicion arose, justifying a temporary detention to ascertain whether Appellant had a valid driver’s license and to run a computer check. See § 901.151(2), Fla. Stat. (2006); Lanier v. State, 936 So.2d 1158, 1161 (Fla. 2d DCA2006).

The very similar facts in Lanier support affirmance and warrant close consideration. Officers received information that an individual with outstanding warrants was a passenger in a gray Ford automobile bearing a specific license tag number. While on routine traffic patrol, Officer Shea located the Ford, confirmed that the passenger was the person being sought, and stopped the vehicle. The officer went immediately to the passenger’s door, ordered the passenger out of the car, and arrested the passenger on the outstanding warrant. See id. at 1159. After the arrest, but while the investigation relating to the passenger’s arrest was ongoing, the officer approached Mr. Lanier, the driver, and asked for identification. When Mr. Lanier produced a Florida I.D. card, Officer Shea took it, ordered Mr. Lanier to remain in the car, and “ran his identification” to assure that his license was good and that he had no outstanding warrants. At that point, the officer had not seen Mr. Lanier commit any traffic infraction; the only reason for stopping the car was to effect the arrest of the passenger on the pre-existing warrant. See id. at 1159-60. As another officer ran Mr. Lanier’s identification through the computer, Mr. Lanier exited the vehicle, contrary to Officer Shea’s instructions, and shoved his hands into the waistband of his pants, whereupon the officer ordered Mr. Lanier to remove his hands. “When Mr. Lanier failed to comply, the officer grabbed him, wrestled him to the ground, and handcuffed him. Although a pat-down of Mr. Lanier revealed no contraband, a subsequent search of the area near the struggle disclosed a baggie containing cocaine. These events resulted in charges of driving without a license, possession of cocaine, and resisting an officer without violence. Like Appellant, Mr. Lanier was on probation when he was arrested, and the DOC filed an affidavit of violation of probation, which Mr. Lanier challenged by moving to suppress the evidence arising from the vehicular stop, which (he argued) resulted in an illegal detention. The trial court revoked Mr. Lanier’s probation without considering his motion to suppress. See id. at 1160.

Subsequently, the trial court denied Mr. Lanier’s motion to suppress on the grounds that an officer conducting a valid traffic stop can properly request the driver’s license of the driver. The Second District Court noted that “[t]he disposition of Lanier’s motion to suppress is controlled by whether Shea had the authority to request identification from Lanier, the innocent driver of the Ford, when the sole purpose of the stop of Lanier’s vehicle was to effect the passenger’s arrest.” See id. at 1161. Given the testimony that the investigation relating to the traffic stop had not been completed when Officer Shea asked for Mr. Lanier’s identification, and noting the holdings of the United States Supreme Court that during a consensual encounter, an officer may lawfully request and hold the identification long enough to run a warrants check, the Second District Court stated that “a similar request during the course of a lawful stop and detention does not rise to the level of a constitutionally cognizable infringement.” See id. It was undisputed that Mr. Lanier’s car was lawfully stopped. With a lawful stop and ongoing investigation arising from the reason for the stop, Officer Shea could properly ask for Mr. Lanier’s identification. See id. (quoting State v. Baez, 894 So.2d 115 (Fla.2004)).

Significant to Appellant’s case is the La-nier panel’s conclusion, citing § 322.15(1), Fla. Stat. (2003), that “when Lanier produced only an identification card rather than a driver’s license, reasonable suspicion arose for Shea to believe that Lanier was driving without a proper license.” La-nier, 936 So.2d at 1161. Thus, Officer Shea was justified under section 901.151(2), Florida Statutes (2006), in detaining Mr. Lanier while investigating the status of his driver’s license. The evidence against Mr. Lanier obtained during the lawful detention was not illegally obtained, and the motion to suppress was correctly denied. See Lanier, 936 So.2d at 1161-62.

In the instant case, Officer Straitt knew that many people with I.D. cards do not have a valid license. As in Lanier, 936 So.2d at 1161, a reasonable suspicion of criminal activity arose when Appellant produced an I.D. card rather than a driver’s license. When Officer Straitt asked whether Appellant had a valid license, Appellant answered “no.” When asked whether his license was suspended, Appellant answered that it was “badly suspended.” When the other officer checked the status of the license, Appellant was found to be a habitual traffic violator. See § 322.264, Fla. Stat. (2006) (defining “habitual traffic offender”).

Section 322.15(1), Fla. Stat. (2006), states:

322.15 License to be carried and exhibited on demand; fingerprint to be imprinted upon a citation.—
(1) Every licensee shall have his or her driver’s license, which must be fully legible with no portion of such license faded, altered, mutilated, or defaced, in his or her immediate possession at all times when operating a motor vehicle and shall display the same upon the demand of a law enforcement officer or an authorized representative of the department.

Appellant failed to comply with the statutory requirement to have and carry a valid driver’s license. Officer Straitt testified that because Appellant’s “habitual traffic offender” infraction is a felony, the officers could not merely write a traffic citation. Instead, they properly arrested Appellant, read his Miranda rights, and seized the vehicle. See § 322.34(5), Fla. Stat. (2006) (designating a third-degree felony where any person whose driver’s license has been revoked under the “habitual offender” provision drives any motor vehicle upon the highways of this state while such license is revoked); § 901.15(1), Fla. Stat. (2006) (authorizing a warrantless arrest where the person has committed a felony in the officer’s presence).

Because the initial encounter was consensual and the officers lawfully detained Appellant for further investigation only after a reasonable suspicion of criminal activity arose, the temporary detention and the arrest were lawful, the motion to suppress was correctly denied pursuant to federal and Florida law, and the trial court properly considered the new violation of law in concluding that Appellant substantially and willfully violated two conditions of probation. Accordingly, we AFFIRM the orders revoking probation and sentencing Appellant to concurrent terms of five years’ incarceration.

BARFIELD, J., concurs.

BENTON, J., concurs in the judgment.