author: PER CURIAM. BROWNING, C.J.,

text:
    William C. LUEDKE, Appellant, v. PLAY SPACE SERVICES and Pinnacle Assurance Corporation, Appellees.
    No. 1D06-6267.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      Merette L. Oweis of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Daniel T. Jaffe of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   PER CURIAM.

“We find the denial of PTD [permanent total disability] benefits is supported by competent and substantial evidence, and thus we affirm that denial. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2008).” McCurdy v. City of Hialeah, 949 So.2d 1140, 1141 (Fla. 1st DCA 2007). At issue below was whether “[t]he cause of the injury could not be identified without a medical opinion.” § 440.185(l)(b), Fla. Stat. (2004). “The parties agree that whether the cause of the injury could be identified without a medical opinion is a factual determination.” Polk County Bd. of County Comm’rs v. Ross, 911 So.2d 854, 855 (Fla. 1st DCA 2005).

In finding that the cause of Mr. Luedke’s injury could be identified without a medical opinion, the judge of compensation claims noted that Mr. Luedke admitted that, earlier in his employment with the employer, when he had pain in his neck after putting in a full day of work, he associated the pain with the work he had done that day. The judge of compensation claims concluded that claimant’s testimony, “taken as a whole, is that he was having intermittent neck and upper extremity symptoms, which varied with the amount and type of work he performed.”

The judge of compensation claims rejected the claimant’s assertion that he did not know his neck and upper extremities hurt or were injured as a result of work activities. This was a credibility determination within the judge’s province. The finding that pain in the neck of the kind described by the claimant was directly recognizable, even to a lay person, as related to heavy work activity is supported by the record. Claimant presented no evidence that the type of symptoms he suffered could have been a result of his spina bifida condition or that he suffered from any other condition that required a medical opinion to ascertain whether the work caused his neck pain.

Affirmed.

BARFIELD and BENTON, JJ., concur; BROWNING, C.J., dissents with separate opinion.

BROWNING, C.J.,

dissenting.

I would reverse, and I accordingly dissent.

Background

The facts that show the JCC erroneously failed to properly apply the “medical opinion” exception provided by Section 440.185(l)(b), Florida Statutes (2003), to Appellant’s failure to report his industrial injury within 30 days from its occurrence are rather complex. Appellant has suffered from spina bifida since birth. This disease, after moderate exertion, often caused Appellant nonpermanent symptoms that ceased upon rest after the exertion without medical intervention. When Appellant suffered his industrial accident here, he thought his symptoms, which were quite similar to those he often experienced from his spina bifida, were a result of such malady, and failed to seek medical attention until 35 days after the industrial accident. At treatment, he was advised by his treating physician that his condition was not spina bifida, but accidental in nature. On these facts, the JCC reversibly erred by denying Appellant benefits for failure to report his industrial accident within 30 days from its occurrence. See § 440.18600(b) Fla. Stat. (2003).

Analysis

I agree with Appellant that the JCC placed an erroneous burden on Appellant by requiring him to “prove that the Appellant did not know his injury was caused by the employment.” The standard that the JCC should have applied was whether Appellant knew or should have known, as a reasonable person, the nature, seriousness and probable compensable character of his injury. Slater v. United Parcel Serv., 507 So.2d 1146, 1148 (Fla. 1st DCA 1987) (quoting 3 Larson, Workmen’s Compensation Law, § 78.41(a) (1987)); see also Herb’s Exxon v. Whatmough, 487 So.2d 1169, 1171-72 (Fla. 1st DCA 1986) (applying Larson’s “reasonable person” test). Had the correct test been applied, it seems inconceivable to me that the facts here would not impel a finding that Appellant was entitled to the “medical opinion” exemption under section 440.185(l)(b), Florida Statutes (2003).

Moreover, even assuming arguendo that the JCC applied the correct standard, reversible error is still presented. The JCC concluded: “Medical records that [Claimant’s] spina bifida had long affected his lower spine and not his neck make it even less reasonable to accept that the claimant attributed cervical and upper extremity condition to that condition.” This finding is clearly contrary to the record that contains several references to Appellant’s long-standing cervical condition that was caused by his spina bifida. A finding that is premised on the nonexistence of record medical evidence, unlike evidence not believed by a JCC, or conflicting evidence resolved by the JCC, that is refuted by the existence of record evidence does not and cannot constitute competent substantial evidence.

For these reasons, I would reverse and remand for further proceedings, consistent with this dissent, and not deny this Appellant his benefits because he was five days late in reporting an injury that clearly necessitated a medical opinion before Appellant could appreciate the extent of his injuries, when measured by the objective standard of a reasonable person in similar circumstances.


source: Caselaw Access Project

author: KAHN, J.

license: Public Domain

text:
    Robert K. LEONARD, former husband, Appellant, v. Kerry D. LEONARD, former wife, Appellee.
    No. 1D06-5400.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      Deborah L. Greene and Tobe C. Karrh, of Smith Greene & Combs, Jacksonville, for Appellant.
    Wesley L. Wallace, Jacksonville, for Ap-pellee.
   KAHN, J.

Robert K. Leonard appeals an order granting his petition to modify a consent final judgment of dissolution of marriage. The original judgment required Mr. Leonard to pay appellee, Kerry D. Leonard, $2,500 per month in permanent periodic alimony. The trial court granted modification; Mr. Leonard nevertheless argues the court erred in setting the new alimony amount because the court wrongly imputed income to Mr. Leonard. We agree that no evidence in this case meets the test for imputing income. Accordingly, we reverse and remand for further proceedings.

Background

At the time of the consent final judgment, Mr. Leonard worked as a consultant, with an annual salary of $135,000, having retired from his career employment with the Jacksonville Electric Authority (JEA). Mr. Leonard had worked for the JEA since 1964. Mr. Leonard has a high school diploma but no college degree, although he attended some engineering courses and completed correspondence courses benchmarked by the JEA to satisfy requirements for promotion in his employment.

In April 2004, Mr. Leonard sought to modify the consent final judgment. In his petition, Mr. Leonard alleged he had lost his job and now relied solely on his pension. The petition recited Mr. Leonard’s age (61) and his lack of a college degree, concluding his ability to find new employment is “greatly reduced.” Mr. Leonard contrasted Mrs. Leonard’s situation, stating she had rehabilitated herself by finding full-time employment and continues to receive 25% of Mr. Leonard’s pension, or $1,153.04 per month. Mr. Leonard requested that the court, among other things, “substantially reduce or eliminate the alimony in this case.”

A hearing took place during which both parties testified. Mr. Leonard introduced into evidence a vocational evaluation. The vocational evaluator conducted labor market survey activities and found only three jobs with “[potentially feasible openings.” Only one of those jobs was near Mr. Leonard’s home in Jacksonville; the others were in Gainesville and Raleigh, North Carolina. Mr. Leonard had inquired after the Jacksonville position and found he could not qualify.

In the order on appeal, the court found “there has been a substantial, material and involuntary change in circumstances since entry of the Final Judgment to warrant a reduction in the [Wife’s] permanent alimony.” The court also made the following findings concerning the parties’ employment and income:

Since losing his job in 2004 [due to funding cutbacks, the Husband] has not sought employment outside of his field as a power distribution engineer. The Court received into evidence a vocational evaluation report dated December 20, 2004 which details the [Husband’s] work history, education and job qualifications. The report indicates he has no limitation that would effect [sic] his ability to obtain and maintain full-time competitive employment in his field. The Court finds that would be true for any field for which he has transferrable skills. His earning potential for his field is from $4,435.00 [sic ] to $103,337.00 and the Court finds that the earnings potential for fields for which he has transferrable skill would be at least $40,000.00. However, the [Husband] now 61 years of age has made no effort to obtain employment outside his field.
The [Wife], age 57, was not employed on the date of the Final Judgment; however, she became employed as a secretary with Mayo Clinic in 2004 and earned $27,629.00 gross and presently earns $2,572.00 per month gross. The [Wife] will be social security eligible at age 67.
Based on the above the [Husband] presently receives $8,459.00 per month from his pension (after deduction [of] $1,153.00 per month lump sum alimony) and has a wage earning capacity of $2,917.00 per month gross at an income of $85,000.00 per year for a total of $6,375.00 per month. The [Wife] presently has income of $1,153.00 per month gross as lump sum alimony and $2,572.00 per month gross from her job for a total of $3,725.00 per month gross. The difference between the two monthly incomes is $2,652.00, and the Court finds that the [Husband] should have his permanent alimony obligation reduced to $1,325.00 per month which gives each party an approximate income of $5,050.00 per month gross.

The decretal portion of the order granted Mr. Leonard’s modification petition and reduced the monthly alimony obligation to $1,325, retroactive to April 20, 2004.

Analysis

“The abuse of discretion standard of review applies to trial court orders in modification of alimony and child support cases.” Woolf v. Woolf, 901, So.2d 905, 911 (Fla. 4th DCA 2005); see Buttermore v. Meyer, 559 So.2d 357, 359 (Fla. 1st DCA 1990). “In considering the imputation of income, our standard of review is whether the trial court’s determination is supported by competent, substantial evidence.” Gruber v. Gruber, 857 So.2d 329, 331 (Fla. 2d DCA 2003); accord Brown v. Cannady-Brown, 954 So.2d 1206, 1207 (Fla. 4th DCA 2007); Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005). See also, e.g., Woolf, 901 So.2d at 911-12; Freilich v. Freilich, 897 So.2d 537, 542-43 (Fla. 5th DCA 2005).

“A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts.” Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997); accord Gruber, 857 So.2d at 331. This court has indicated when a trial court may impute income to a spouse:

A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor’s real ability to pay. When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support.

Smith v. Smith, 737 So.2d 641, 644 (Fla. 1st DCA 1999) (citations omitted); accord Vriesenga v. Vriesenga, 931 So.2d 213, 218 (Fla. 1st DCA 2006).

In this case, the trial court found the Husband “has a wage earning capacity of $2,917.00 per month gross at an income of $35,000.00 per year.... ” The court did not identify the source of this income; moreover, nothing, in the record supports this finding. Accordingly, the court erred in imputing this income to Mr. Leonard. See, e.g., Schram, 932 So.2d at 249-50 (“In order to impute income to the husband, specific findings are required that indicate source and amount.... [T]he trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.”); Wendroff v. Wendroff, 614 So.2d 590, 595 (Fla. 1st DCA 1993) (“It is error for a trial court to impute income to a supporting spouse without setting forth the amounts imputed and the sources of this income.”).

Further, the court erred in imputing any income to Mr. Leonard, given the lack of findings in the order and lack of record support for such findings had they been made. According to case law, “restraints on imputation exist in the form of a required two-step analysis.” Schram, 932 So.2d at 250; accord Brown, 954 So.2d at 1207.

First, the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.”

Schram, 932 So.2d at 249-50 (quoting Konsoulas v. Konsoulas, 904 So.2d 440, 444 (Fla. 4th DCA 2005) (quoting Ensley v. Ensley, 578 So.2d 497, 498 (Fla. 5th DCA 1991))); accord Brown, 954 So.2d at 1208. The record before us offers no support for either prong of the pertinent analysis.

Beyond the dearth of record support, we question why the trial court did not consider Mr. Leonard’s age (he is now 64), education level (high school diploma, plus a few college courses), his past employment history with only one employer (JEA) during his career, his only employer’s policy not to rehire retired employees, and his lifelong residency in Jacksonville. Cf. Smith, 737 So.2d at 645 (“So long as the individual’s recent work history and occupational qualifications, and the prevailing earnings level in the pertinent community, are properly taken into account, as they were in the ease at bar, a trial court has discretion to impute income in the amount the person was earning before voluntarily reducing his or her income.”). Given Mr. Leonard’s retirement from JEA and his age, the court should have considered whether, and to what extent, he should be required to re-enter the labor market. See Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992) (“In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire. The age of sixty-five years has become the traditional and presumptive age of retirement for American workers.... Based upon this widespread acceptance of sixty-five as the normal retirement age, we find that one would have a significant burden to show that a voluntary retirement before the age of sixty-five is reasonable. Even at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty.”); accord Zeballos v. Zeballos, 951 So.2d 972, 973-74 (Fla. 4th DCA 2007) (finding that order reducing, rather than terminating, husband’s alimony obligation was abuse of discretion where husband at age 65 wanted to retire and wife’s expenses were all paid by her fiancé).

On remand, the court should consider these matters, as well as the parties’ incomes, Mrs. Leonard’s need for alimony, and Mr. Leonard’s ability to pay such alimony. See Vriesenga, 931 So.2d at 217-18 (“The existence of changed circumstances requires a new look at the parties’ financial situations” and “[w]hen determining afresh the amount of alimony a former spouse should pay, the trial court must consider all relevant economic factors, including ‘[t]he financial resources of each party, the nonmarital and marital assets and liabilities distributed to each,’ and ‘[a]ll sources of income available to either party.’ ” (quoting § 61.08(2)(d), (g), Fla. Stat.)); see also Acker v. Acker, 904 So.2d 384 (Fla.2005) (holding that trial court may consider pension benefits equitably distributed to a party in determining proper amount of alimony); Pimm, 601 So.2d at 537 (indicating, in the context of a retiring payor spouse, “the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her” and “[i]n assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets”).

REVERSED and REMANDED.

BROWNING, C.J. and ROBERTS, J., concur.

       A review of the Vocational Evaluation Report indicates the court likely intended this number to be $40,435.


author: PER CURIAM.

text:
    N.D.E., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3633.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency appeal, we reverse and remand for further proceedings because the reasons given by the trial court for departing from the recommendation of the Department of Juvenile Justice that appellant be placed in a moderate-risk facility and, instead, ordering a high-risk placement failed to identify the characteristics of such a placement that would better meet appellant’s needs than would a moderate-risk placement and were in part unsupported by any evidence. See, e.g., R.T. v. State, 946 So.2d 112, 113 (Fla. 1st DCA 2007) (citing cases); J.A.R. v. State, 923 So.2d 604, 605 (Fla. 2d DCA 2006).

REVERSED and REMANDED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Pauline SHEPARD, Petitioner, v. CORDIS and Broadspire, Respondents.
    No. 1D07-4043.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      William F. Souza of the Law Offices of William F. Souza, North Miami Beach, for Petitioner.
    Leticia G. Coleman and Warren Brown of Walton Lantaff Schroeder & Carson, LLP, Miami, for Respondents.
    Walter J. Havers, Senior Attorney, of the Office of the Judges of Compensation Claims, Tallahassee, for JCC Sylvia Medina-Shore.
   PER CURIAM.

In this Workers’ Compensation proceeding, petitioner seeks review of an order denying her motion for disqualification of the Judge of Compensation Claims based on an adversarial relationship between petitioner’s attorney and the Judge of Compensation Claims. Because we find the grounds for disqualification were legally sufficient, we grant the petition. See Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005). We remand the case with directions to Judge Medina-Shore that she enter an order granting the motion for disqualification.

PETITION GRANTED.

WEBSTER, BENTON, and THOMAS, JJ., concur.


text:
    Sean Patrick SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5901.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and C. Bowen Robinson and Philip W. Edwards, Assistant Attorneys General, Office of the Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

Appellant Sean Patrick Sullivan appeals his judgment and sentence. In the proceedings below, appellant pled no contest to three counts, (I) burglary of a dwelling with assault, (II) criminal mischief, and (III) assault. At his sentencing hearing, the trial court orally announced appellant would be sentenced as a youthful offender to time served on counts II and III, and to seventy-two months probation, with the first twenty-four months on community control, on count I. However, the subsequent written judgment and sentence did not reflect that appellant was sentenced as a youthful offender. Appellant filed a Motion to Correct Illegal Sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). On May 29, 2007, the Clerk entered a statement certifying that no ruling was entered on the motion. Pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B), we treat the statement of no ruling as a denial of the motion.

The sole issue on appeal is whether the trial court erred in entering a written judgment and sentence which does not conform to the court’s oral pronouncement. A discrepancy between a written judgment and sentence and the oral pronouncement of the sentence is cognizable in a Rule 3.800 motion to correct illegal sentence. See Williams v. State, 957 So.2d 600 (Fla.2007). In such cases, “a court’s oral pronouncement of a sentence controls over the written sentencing document.” Id. at 603. Thus, we REVERSE appellant’s sentence to the extent it does not reflect that appellant was sentenced as a youthful offender, and REMAND with instructions to the trial court to correct the error. Because this is a ministerial act, the appellant’s presence is not required.

POLSTON, HAWKES, and THOMAS, JJ., concur.


text:
    Abraham BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6319.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Geraee and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal argues that his convictions should be reversed because the trial court failed to conduct an adequate Faretta inquiry before accepting the appellant’s waiver of his Sixth Amendment right to assistance of counsel. Because the inquiry was inadequate, we reverse the appellant’s convictions.

Before a trial court may properly accept a defendant’s waiver of his right to assistance of counsel, the court must first inform the defendant of the dangers and disadvantages of self-representation and must also make an inquiry sufficient to determine whether the waiver is being made knowingly and intelligently. Fla. R.Crim. P. 3.111(d); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to represent himself. See State v. Bowen, 698 So.2d 248 (Fla.1997). Although the record in the present case demonstrates that the appellant was sufficiently apprised of the dangers and disadvantages of self-representation, it discloses no inquiry into the appellant’s age, education, mental condition, physical condition, past experience with criminal proceedings, or other factors bearing upon his capacity to waive his constitutional right to counsel. See Wilson v. State, 724 So.2d 144 (Fla. 1st DCA 1998); Toussaint v. State, 677 So.2d 853 (Fla. 1st DCA 1995); Dowdell v. State, 665 So.2d 279 (Fla. 1st DCA 1995); Hadden v. State, 633 So.2d 486 (Fla. 1st DCA 1994). The appellant’s convictions are accordingly reversed, and this case is remanded.

ALLEN, KAHN, and DAVIS, JJ., concur.


author: BROWNING, C.J.

text:
    Darnell JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6449.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

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

Darnell Johns appeals his conviction of felony battery and corresponding sentence of five years of incarceration as a prison releasee reoffender. We affirm the conviction without further discussion; however, we reverse the sentence, and remand for removal of the prison releasee reoffender designation.

The State concedes that the prison re-leasee reoffender designation was improper because the conviction was under section 784.03(2), Florida Statutes (2006), which reclassifies a simple battery as a felony battery because of a prior battery conviction. The Florida Supreme Court has recently held that a conviction for battery on a law enforcement officer will not support sentencing enhancement as a violent career criminal because it can never be a forcible felony. See State v. Hearns, 961 So.2d 211, 219 (Fla.2007). In doing so, it noted that battery on a law enforcement officer is just simple battery reclassified merely because of the victim’s status, and that the question of whether battery on a law enforcement officer qualifies for either a violent career criminal or a prison releasee reoffender designation must be answered consistently. Id. at 217, 219. Analogously, the instant conviction was of simple battery reclassified merely because of the offender’s prior battery conviction; thus, it also can never be a forcible felony, and so will not support a prison releasee reoffender (or a violent career criminal) sentence. See Spradlin v. State, 967 So.2d 376 (Fla. 4th DCA 2007).

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

KAHN and ROBERTS, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. BEACHVIEW CONDOMINIUM OWNERS’ ASSOCIATION, INC., Appellee.
    No. 1D07-1291.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandra, Dees & Gillam, P.A., Jacksonville, for Appellant.
    J. Nixon Daniel, III and Terrie L. Didier of Beggs & Lane, Pensacola, for Appel-lee.
   PER CURIAM.

REVERSED and REMANDED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007).

ALLEN, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Terrance Lamar JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2638.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.
    Jack Behr, Public Defender, and Paul J. Hamlin, Assistant Public Defender, Pensacola, for Petitioner.
    Bill McCollum, Attorney General; C. Bowen Robinson and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence rendered on March 8, 2007, in Escambia County Circuit Court case numbers 06-892, 06-2625, 06-2626, 06-2627, 06-2836, 06-2837, 06-2838, 06-2839, 06-2840, 06-2841, 06-2842, 06-2843, 06-2844, 06-2845, 06-3354, 06-3593, 06-2889, and 06-3215. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WEBSTER, BENTON, and THOMAS, JJ., concur.


text:
    M.S.G., III, a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3330.
    District Court of Appeal of Florida, First District.
    Jan. 7, 2008.

      Nancy Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, C. Bowen Robinson, Assistant Attorney General, and Philip W. Edwards, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order withholding adjudication of delinquency on charges of disrupting a school function and participating in an affray. We conclude that the evidence is insufficient to support the disruption charge and reverse the order on that charge. The child was involved in a fight on the school grounds but there was no evidence that he acted with the deliberate intent to disrupt a school function or that he acted with reckless disregard for the effect of his behavior. See S.H.B. v. State, 355 So.2d 1176 (Fla.1978). The evidence is sufficient to support a finding that the child was engaged in an affray and we therefore affirm the order as to that charge.

Affirmed in part and reversed in part.

WOLF, BENTON, and PADOVANO, JJ., concur.


author: FARMER, J.

text:
    T.M.; and L.A., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellee.
    Nos. 4D07-1938, 4D07-1939.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2008.

      Gary L. Pickett, West Palm Beach, for appellant father.
    John Brewer, Lake Worth, for appellant mother.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   Corrected Opinion

FARMER, J.

In this termination of parental rights appeal, the mother argues that her continued association with the child’s violent father should not legally support a finding of a reasonable risk that the baby will be harmed again. She argues that the tenor of the trial judge’s order terminating her rights is to punish her for continuing to associate with him, and for her lack of candor on the subject. She points out that she had completed all the tasks in her case plan imposed in regard to an older child in an earlier case.

Before the baby in question was born, the mother had been receiving services from the Department of Children and Families (DCF) on account of the dependency of an older child by a different father. The father in this case had violently disciplined this older child. In the case relating to the older child, the mother’s parental rights were not terminated but the child was determined to be dependent and placed outside the mother’s care.

M.M., the baby involved in this case, was born 3 May 2006. On June 29th, nearly two months after the birth, there was an incident of domestic violence by the baby’s father. The mother reported that the father had “punched [her] on the left side of her head four times. [She] was holding [M.M.] in her left arm, and the father grabbed her by the right arm causing puncture wounds from his long nails.” She said that it did not hurt because she was somewhat of a “tomboy.” A DCF caseworker began an investigation. M.M. was placed under protective supervision. The mother agreed to seek a domestic violence injunction against the father.

On 7 August 2006, while still under protective supervision, the mother presented M.M at the emergency room with symptoms of a fever and a swollen leg. The doctors discovered that the baby’s left femur was fractured. According to hospital staff, the mother was initially unable to explain how the injury occurred. Eventually she stated that his leg was broken while she was taking him out of his crib in the middle of the night. As she later described the incident at trial:

“Around 4:00 [a.m.] he wakes up. I was already tired.... I rolled over to pick him up.... He has a habit of sticking his legs out through [the rails of the crib]_So, I rolled over. I was tugging at him because I’m like half asleep, and he was still crying. So I picked him up a couple of times ... laid him down, ... breastfed him, burped him, and laid him on the pillow. I didn’t put him back in the crib.”

The mother told the DCF caseworker that when the baby caught himself in his cradle she “yanked him out too hard.” About a day after the “yanking” she said she became aware of a “click” in his leg while changing his diaper. She noticed that the leg was swollen, that he was quite fidgety and would cry when she touched his leg. Thinking that the leg was only dislocated, she called a cab to take her to the hospital.

The DCF caseworker testified that when she spoke to the mother at the hospital she noticed fresh scratch marks on her neck. The mother admitted upon questioning by the caseworker that she and the father “got into it.” The mother initially told the caseworker that she had no idea how the femur was broken and only later admitted that the baby had been kicking the crib railing and that someone else had babysat for the child. The caseworker also testified that only a few days before the broken leg the mother had told the caseworker that she was fearful of admitting to continuing her relationship with the father because M.M. might be removed.

Dr. Philip Colaizzo, Director of the Child Protection Team for Palm Beach County, testified that the type of pulling described by the mother was improbable, that if a femur could be broken as described by the mother there would be a very high frequency of such accidents. He said that the baby’s femur — one of the hardest bones in the body — was three/fourths (¾) to an inch in diameter. From the x-rays he described an angulated break that could not have been self-inflicted. He said the break was the result of a transverse force. He also testified that, in his experience, the type of fracture sustained by M.M. was generally the result of abuse.

After DCF filed the petition for termination, M.M. was sheltered. Before the case came to trial, mother admitted that she called the father during Christmas because she was lonely. The grandmother testified that father stayed with the mother the entire time during their visit. The father testified, initially denying having any contact with mother in June 2006, but then admitting that he had a “face-to-face” argument on June 29th but denied hitting Mother. He did, however, admit to staying with mother over Christmas and that they would see each other and also speak.

The trial court’s findings were as follows. Neither the mother nor the father was credible. The mother was not candid about her relationship with the father, giving inconsistent accounts about the father. They both were inconsistent about the June 29th incident. Both versions were incredible and could not be believed. She repeatedly told DCF that they were no longer together, but then that she was happy that she was pregnant with M.M. They spent the holidays together while telling DCF they were still separated. The parents continued their relationship and continued to cohabit but then lied about it.

There was an incident of domestic violence at or about the same time of the broken femur, as shown by the fresh scratch marks on the mother’s neck. The broken femur resulted from something more than mere negligence, expressly relying on the Doctor’s testimony. Her explanation of how the injury occurred was expressly rejected. By the mother’s own testimony, she is responsible for the broken femur. The mother caused the broken bone and failed to seek medical care for more than 24 hours afterward. The force required for the injury was consistent with the definition of “egregious conduct.” The mother’s conduct has created a serious risk of harm if M.M. were returned to the mother. Termination of the parental rights of both is in the best interests of M.M.

“It is well-settled that, where the trial court’s finding that there is ‘clear and convincing’ evidence to terminate parental rights is supported by competent substantial evidence [the appellate court has] no choice but to affirm.” D.S. v. Department of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003); R.S. v. Department of Children & Families, 831 So.2d 1275, 1277 (Fla. 4th DCA 2002). As the court explained in In re Adoption of Baby E.A.W., 658 So.2d 961 (Fla.1995):

“[The appellate court’s] task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute [its] judgment for that of the trier of fact. Instead [it] will uphold the trial court’s finding “[i]f upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”

658 So.2d at 967.

Section 39.806(l)(f)2 defines egregious conduct as “abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct.” The mother argues that the evidence does not prove such conduct. She points to Dr. Colaizzo’s concession that he could not say definitely that the injury could not have happened as the mother testified. She argues that to find egregious conduct, the court had to reject not only her testimony, but the expert’s as well. Moreover, she contends, there was no evidence indicating that the father was present when the baby was injured.

The mother misunderstands the impact of an adverse credibility determination and mischaracterizes the Doctor’s testimony. It is true that her lack of credibility was a significant factor in finding egregious conduct. But as the opinion in Baby E.AW. makes clear, we have no authority to reweigh her testimony and find it credible. The fact is that the mother’s attempted explanation for the serious injury to her baby while in her care was expressly rejected by the finder of fact. The doctor’s testimony was not that her account was probable—only that it was possible—but that given the circumstances her explanation was improbable. It was the role of the trial judge to decide whether she was believable and the expert’s opinion was reliable.

The principal reason for termination was the prospect of serious injury if the child was returned to the mother. In the seminal case in Florida discussing prospective abuse, our supreme court stated that:

“To protect the rights of the parent and child, we conclude that before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.”

Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). In prospective abuse cases DCF must prove a connection between past acts of abuse and the prospect that it will occur again. See D.H. v. Department of Chil dren & Families, 769 So.2d 424 (Fla. 4th DCA 2000). The issue in these eases is whether future behavior adversely affecting the child can be “clearly and certainly predicted.” L.B. v. Department of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002). Stated another way, the issue is whether it is likely to happen or expected. In re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002).

In this case, there was evidence that the father had violently abused the mother multiple times in the past. In fact, his violence was the reason her first son was taken away from her and placed with his biological father. The June 29 incident also definitely involved violence by the father. The DCF caseworker testified that the mother admitted that she and the father “had gotten into it” when confronted about the scratches on her neck in the hospital. Moreover, the mother failed to take M.M. to the hospital for more than 24 hours after the incident causing his broken femur.

The trial judge’s finding was expressly based on clear and convincing evidence. There is evidence in the record that, if believed by the finder of fact, supports the finding that the conduct of both parents was egregious. Although there was no eyewitness to a violent act, there is strong circumstantial evidence supporting the finding. As the Doctor made clear, the broken femur is a serious, significant and substantial injury — especially to a three month old who does not walk, jump, or crawl. The size of the fractured bone required very substantial force to cause the break, and the mother’s explanation was scientifically unlikely as the source. The delay in taking the child to seek medical care was also significant.

The history of violence in the relationship, the lying about the relationship being finished, the failure of the mother to protect the child from the father — all of these add mightily to the finding of prospective future abuse. The mother had already lost custody of her older child on account of this man’s violence in the relationship. How many children have to suffer injuries, and how many times, and how much more severe the injury, before the law may permanently end their exposure to this repeated danger?

Affirmed.

TAYLOR, J„ and DAVIDSON, LISA, Associate Judge.


text:
    Woobens BIENAIME, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1473.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.
    Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   PER CURIAM.

Appellant entered a plea to the crime of sexual battery. He moved to withdraw his plea. There was a conflict between appellant and his attorney at the hearing on the motion. We reverse for a new hearing on the motion with conflict free counsel. See Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999).

FARMER, KLEIN and GROSS, JJ., concur.


author: POLEN, J.

text:
    STOLPER, LLC, Appellant, v. Herman JEFFER, Appellee.
    No. 4D05-3230.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.
    Eric C. Christu and Edward J. Welch of Elk, Bankier, Christu & Bakst LLP, West Palm Beach, for appellant.
    Herman Jeffer, Tequesta, pro se.
   POLEN, J.

Appellant Stolper, LLC timely appeals the trial court’s order denying its motion for attorney’s fees. We reverse.

Appellee Herman Jeffer filed a complaint against Stolper for collection of a promissory note. The complaint was voluntarily dismissed before an answer was filed by Stolper, but after the answer was due. Stolper filed a motion for attorney’s fees and costs within 30 days after the dismissal.

In Stockman v. Downs, 573 So.2d 835 (Fla.1991), the Supreme Court of Florida answered in the negative the following question certified by this court to be of great public importance:

May a prevailing party recover attorney’s fees authorized in a statute or contract by a motion filed within a reasonable time after entry of a final judgment, which motion raises the issue of that party’s entitlement to attorney’s fees for the first time?

Stockman, 573 So.2d at 836. The fundamental concern was one of notice. Id. at 837. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. Id. (citing 40 Fla. Jur. 2d Pleadings § 2 (1982)).

The court held that a claim for attorney’s fees, whether based on statute or contract, must be pled. Id. The court later clarified that the phrase “must be pled” is to be construed in accord with the Florida Rules of Civil Procedure. Green v. Sun Harbor Homeowners’ Ass’n, 730 So.2d 1261, 1263 (Fla.1998). “Complaints, answers, and counterclaims are pleadings pursuant to Fla. R. Civ. P. 1.100(a).” Id. Stockman is to be read to hold that the failure to set forth a claim for attorney’s fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver. Id.

In Green, however, the court stated that the failure to set forth a claim for attorney’s fees in a motion does not constitute a waiver. Id. The court stated:

Until a rule is approved for cases that are dismissed before the filing of an answer, we require that a defendant’s claim for attorney’s fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.

Id.

Stolper argues that it has complied with the language in Green by filing a motion for attorney’s fees within 30 days of the voluntary dismissal. This court agrees. We reverse and remand with instructions that the trial court reconsider Stolper’s motion for attorney’s fees.

Reversed and remanded with instructions.

KLEIN and MAY, JJ., concur.


author: GROSS, J.

text:
    Robert LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-785.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2008.

      Carey Haughwout, Public Defender, and Anthony C. Musto, Special Assistant Public Defender, Hallandale Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Julie D. Lindahl and Diane F. Medley, Assistant Attorneys General, West Palm Beach, for appellee.
   GROSS, J.

Many criminal trials are like boxing matches, where the state and defense trade punches within defined rules of engagement. This case resembled an ultimate fighting video game, without rules, where the goal of each side was to win at any cost. Because of one fundamental error in the jury instructions and three prejudicial evidentiary errors, we reverse. See § 924.051, Fla. Stat. (2006).

Robert Love appeals five convictions— two counts of battery on a police officer, one count of resisting an officer with violence, one count of driving with a suspended, canceled or revoked license, and one count of possession of marijuana in excess of 20 grams. All crimes occurred during a traffic stop in Pahokee.

This was not the garden variety police-citizen encounter. Love is a community activist who frequently criticized the Pa-hokee police department in city commission meetings. As described in his brief, Love’s “defense was that- the Pahokee police department used the traffic stop in this case as an opportunity to beat him because of his complaints about them and his assertions that they were corrupt.”

The state’s version of the case began when Officer George Hachigian stopped Love for driving at night without headlights on. After seeing Love’s name on his driver’s license, the officer radioed for backup. Fifteen seconds later, Officer James Levey arrived at the scene. Over his police radio, Officer Hachigian learned that Love’s license was suspended. Officer Hachigian did not know if Love knew about the suspension, so he contemplated issuing a citation for the infraction of driving with a suspended license without knowledge. See § 322.34(1), Fla. Stat. (2006). However, according to Officer Le-vey, Love admitted to knowing about the suspension. Corporal Linning Peters, the shift’s commanding officer, ordered Officer Levey to arrest Love for the crime of knowingly driving with a suspended license. See § 322.34(2), Fla. Stat. (2006).

According to the officers, when they attempted to make the arrest, Love slapped the handcuffs out of Officer Levey’s hands and pushed him down. He then ran away. Officer Hachigian jumped on Love’s back. Officer Levey hit Love with a baton, knocking him down. While Love was tussling with Officer Hachigian on the ground, Officer Levey hit Love several times with the baton and his fist. Within seconds, the officers handcuffed Love and the struggle ended. Soon, Corporal Peters came to the scene. Several sheriffs deputies arrived to help control the crowd that had formed during the arrest.

After the arrest, Officer Hachigian conducted an inventory search of Love’s car and found a bag containing marijuana. The state presented evidence that a DNA profile taken from the bag was consistent with that of Love.

Love’s version of events differed from that of the officers. Love said that he was told he was under arrest and ordered to put his hands on the car. He asked why he was being arrested. Officer Levey knocked him to the ground, struck him with the baton, and hit him in the knee. Officer Hachigian jumped Love and choked him while Officer Levey continued to beat him with the baton. Love insisted that he did not resist the arrest, threaten the officers, run, raise his hand to them, or knock handcuffs out of Officer Levey’s hands.

The defense called witness Mila Ivery who observed the incident from across the street. As she left church after attending a service, Ivery saw Love talking to one policeman when another officer approached and hit Love with a stick. Love did nothing to incite the officers; he was just talking when the violence began. Love did not fight back. When he went to the ground, the officers hit him and beat “him in the face.” At this point, a third officer arrived and pointed a gun at the crowd in which she was standing.

On cross examination, the prosecutor established that Ivery saw the encounter along with a group of ten to twelve people outside of the church. Mrs. Ivery said that she regularly saw these people in church on Friday nights. Over objection, the prosecutor had Ivery agree that none of these potential witnesses were outside the courtroom prepared to testify. During closing argument, the prosecutor commented on Love’s failure to produce any of these witnesses to corroborate Ivery’s version of the facts.

It was error to allow the state to attack Love for failing to produce additional witnesses to back up Ivery’s story. In a criminal case, the burden is on the state to prove a crime beyond a reasonable doubt; “a defendant has no obligation to present witnesses.” Jackson v. State, 575 So.2d 181, 188 (Fla.1991). To protect this tenet of due process, the general rule is that “the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.” Id. The supreme court has “applied a narrow exception” to the general rule to “allow comment when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, self-defense, and defense of others, relying on facts that could be elicited only from a witness who is not equally available to the state.” Id. A witness is not “equally available” to the state if the witness has a special relationship with the defendant. Lawyer v. State, 627 So.2d 564, 567 (Fla. 4th DCA 1993).

Applying the supreme court’s holding in Jackson, this court has held that the manager at a defendant’s former place of employment, Lawyer, 627 So.2d at 567, a coworker of the defendant’s girlfriend, Thomas v. State, 726 So.2d 369, 370 (Fla. 4th DCA 1999), and a person whom the defendant had met at a homeless shelter, Hogan v. State, 753 So.2d 570-71 (Fla. 4th DCA 1999), did not have the type of special relationship with a defendant that would allow the state to comment upon their absence at trial. In a pre-Jackson case, Crowley v. State, 558 So.2d 529 (Fla. 4th DCA 1990), we reversed a conviction where a prosecutor’s closing argument focused on the defendant’s failure to call any of the people at the scene of his arrest to corroborate his claim that drugs found on the ground were not his.

This case meets neither of the Jackson requirements that would allow the state to make an issue of a defendant’s failure to call witnesses. First, Love raised no affirmative defense for which he assumed any burden of proof; he claimed that the crimes never occurred. Second, Love had no special relationship with the witnesses outside of the church; the witnesses were analogous to the people at the scene of the crime in Crowley. It was therefore prejudicial error for the prosecutor to focus on the failure to call these witnesses during both the cross examination of Ivery and closing argument.

Love next attacks a ruling that precluded him from offering evidence about the bias of a state witness. Corporal Peters testified during the state’s case. During the defense case, Love called Lawrence Holborow, a former member of the Pahokee police department who had supervised Peters. Holborow was prepared to testify that four months before Love’s arrest, Peters and Love had a heated discussion during which Peters said to Love, “Do you think it’s okay to call me cracker, nigger?” The trial judge refused to admit the testimony, ruling that the prejudicial effect of the testimony substantially outweighed its probative value under section 90.403, Florida Statutes (2006). The court commented that the testimony might “become the theme of the case ... to the exclusion of what really happened.”

The trial court erred in preventing Love from introducing evidence about Peters’s racial bias, since such testimony was admissible under section 90.608(l)(b), Florida Statutes (1996). To introduce Holborow’s testimony, Love was not required to question Peters about the statement during the state’s case. See Jones v. State, 678 So.2d 890, 893 (Fla. 4th DCA 1996); Alford v. State, 47 Fla. 1, 36 So. 436 (1904).

Section 90.608(2)(e) provides that any party may attack the credibility of a witness by “[sjhowing that the witness is biased.” Where a defendant is African-American, a witness’s bias against the defendant as an African-American, as well as a generalized prejudice against black persons, are proper subjects to explore under section 90.608(2). See Jackson v. State, 585 So.2d 420 (Fla. 1st DCA 1991); Lee v. State, 422 So.2d 928, 931 (Fla. 3d DCA 1982); Smith v. State, 404 So.2d 167, 169 (Fla. 1st DCA 1981). “The ability to expose an improper impetus for a witness’ testimony is an essential component of the right to a jury trial.” Jones, 678 So.2d at 892; see Purcell v. State, 735 So.2d 579 (Fla. 4th DCA 1999). Although a trial judge has the discretion to control the mode, order, and scope of cross examination under section 90.612(1), Florida Statutes (2006), such discretion is “constrained by a defendant’s right to confront adverse witnesses.” Smith, 404 So.2d at 169. Similarly, the Sixth Amendment narrows a trial court’s discretion to exclude evidence of a witness’ bias under section 90.403.

The trial court abused its discretion in disallowing Holborow’s testimony, which concerned Peters’s expression of bias directly to Love. This was not a case where the bias was “too remote in time from the incident in question” or without any connection to the case. Lee, 422 So.2d at 931.

Next, Love complains about a number of evidentiary rulings that he did not preserve at trial with a proper objection, many of which he invited by throwing open the door on cross examination after being asked by the trial court if he was “sure” he wanted to proceed, knowing that the prosecution would be able to follow up with questions on redirect examination. For example, the references to Love’s “hit list” of Pahokee officers who had behaved improperly were both invited and not preserved. In the context of this trial, tjie term “hit list” does not have the “extreme emotional impact” that Love now claims on appeal. The list refers to the officers whose bad conduct Love wanted to expose to the city commission. Also, once Love suggested that the officers’ actions on the street had sinister implications, the state was entitled to show another basis for the officers’ conduct, that the police chief had told the officers that Love was “someone to watch out for.” Similarly, once Love suggested that Officer Levey had been forced to leave the Pahokee police department under the dark cloud of an investigation, the state was entitled to establish that the Palm Beach County Sheriffs Office had investigated Levey’s conduct in the Love arrest prior to hiring him. “The ‘opening the door’ concept is based on considerations of fairness and the truth seeking function of a trial,” where redirect examination reveals the “whole story of a transaction only partly explained” in cross examination. Bozeman v. State, 698 So.2d 629, 630-31 (Fla. 4th DCA 1997).

On a preserved issue, we agree with Love that the state crossed the line when the prosecutor asked Officer Le-vey a series of leading questions to establish the officer’s “understanding [that Love] boasted about wanting to kill and injure officers,” and that Love had “the ability and influence to carry out the threats, based upon his criminal record and interaction and influence with the citizens” of Pahokee. Levey did not hear Love talk about wanting to harm officers; the knowledge came from some unidentified third party. Hearsay within hearsay is not excluded under the hearsay rule, “provided each part of the combined statements conforms with an exception” to the rule. § 90.805, Fla. Stat. (2006). While Love’s statement to the unnamed declar-ant was an admission under section 90.803(18), the declarant’s statement to Officer Levey falls under no hearsay exception. If the statement about killing and injuring officers was not offered for the truth of its contents, but to explain why the officers behaved as they did at the scene of the arrest, then the minimal probative value of the words heard by an unidentified declarant, little more than a rumor, was substantially outweighed by the danger of unfair prejudice from the inflammatory accusation. See § 90.403, Fla. Stat. (2006). Officer Levey’s reference to Love’s criminal record is not admissible under any section of the evidence code. During Love’s cross examination, the state did not impeach him with a conviction of any crime, pursuant to section 90.610, Florida Statutes (2006).

Love claims that the trial court “precluded” his defense that the “Pahokee police used the traffic stop in this case as an opportunity to beat him because of his complaints about them and his assertions that they were corrupt.” The trial court properly allowed evidence that Love was a frequent, loud, and vocal critic of the police at city commission meetings. The trial court correctly ruled on the specific matters Love identified in his brief:

1) Love questioned Pahokee City Commissioner Ally Biggs about why she was concerned when she saw Love’s car at the side of the road with police officers. She replied that she had heard from “someone from the police department” that something was supposed to happen to Love. The court properly sustained the state’s objection to this testimony. Although statements of police department employees would have been admissible under section 90.803(18)(d), the admission exception to the hearsay rule, here there were not sufficient indicia of reliability to the statement that the police targeted Love, in part because the person who made the statement was not identified. See Garland v. State, 834 So.2d 265, 267-68 (Fla. 4th DCA 2002).
2) Questioning Biggs as to the problems between Pahokee citizens and the police, Love sought to establish that residents who talked to Biggs “were in a fearful state.” The trial court properly sustained an objection based on relevance.
3) The trial court correctly sustained an objection to a question calling for Biggs to relate discussions with citizens about certain police officers. The question plainly called for hearsay.
4) The trial court sustained the state’s objection to questions to Biggs asking for the reputations of Levey and Peters “in the community as police officers” and her own experience with these officers behaving in certain ways. Under section 90.404(l)(b)l, Florida Statutes (2006), the aggressive nature of a victim’s character is admissible only in cases where a defendant alleges self-defense. Dupree v. State, 615 So.2d 713, 720 (Fla. 1st DCA 1993); Charles W. Ehrhardt, Florida Evidence § 404.6 (2004 ed.). In construing Federal Rule of Evidence 404, upon which this section is modeled, Federal Courts also allow character evidence only when the accused has raised the issue of self-defense. See Dupree, 615 So.2d at 721 (citing United States v. Greschner, 647 F.2d 740 (7th Cir.1981)). Here, Love did not claim self-defense. Also, Love’s question did not call for a “pertinent trait of character” under section 90.404(1)(b)1; a reputation as a “police officer” is not a character trait like peacefulness or honesty. Even where character evidence is proper, admissible evidence is “limited to the testimony witnesses who are aware of the victim’s reputation for the pertinent character trait.” Ehrhardt, § 404.6 (Emphasis added); § 90.405, Fla. Stat. (2006); see Dupree, 615 So.2d at 721. A litigant may not prove a character trait by offering evidence about instances of conduct that demonstrate the trait.
5) Mayor James Sasser named all the officers about whom Love had complained in city commission meetings. The trial court properly sustained a relevance objection when Sasser began talking about the “well-documented” problems with the police department that required some type of intervention by the sheriffs office.

The fundamental error in this case arose from the trial court’s charge to the jury. Even though the prosecutor pointed out that the two battery charges involved separate crimes, the trial judge insisted on using one instruction for the two counts of battery on a law enforcement officer; in the standard charge, four times the court described the victim as “G. Hachigian and/or J. Levey.” For the resisting with violence count, the court four times named the victim as “G. Hachigian and/or J. Levey.” With these instructions, the court failed to correctly instruct on elements of the crimes that were “in dispute.” See Garzon v. State, 939 So.2d 278, 283 (Fla. 4th DCA 2006). It is the trial judge’s responsibility to “ensure ‘that the jury is fully and correctly instructed as to the applicable law.’ ” Id. (quoting Moore v. State, 903 So.2d 341, 342 (Fla. 1st DCA 2005)). As the instructions read, the jury could have convicted on both battery counts even if they found that only one of the officers was intentionally touched or struck. The “and/or” instruction on the resisting count presents similar problems. On retrial, the trial court should avoid the “and/or” locution, and separately instruct the jury on each battery count. See Reed v. State, 837 So.2d 366 (Fla.2002); Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001); Womack v. State, 942 So.2d 955 (Fla. 4th DCA 2006); Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006).

Reversed and remanded.

FARMER and KLEIN, JJ., concur.

      . As an additional ground for reversal on this point, Love points to cases where the state succeeded in excluding evidence at trial, and then argued that the absence of such evidence was probative of the defendant’s guilt. See Reid v. State, 784 So.2d 605 (Fla. 5th DCA 2001); Gonzalez v. State, 774 So.2d 796 (Fla. 3d DCA 2000); Villella v. State, 833 So.2d 192 (Fla. 5th DCA 2002). These cases do not apply here. On the eve of trial, Love moved for a two week continuance because he had just learned of individuals at the scene during his arrest who might have witnessed the incident and he needed more time to investigate. These potential witnesses were the other peo-pie outside the church with Ivery. The defense listed Ivery as a supplemental witness on the first day of trial. The trial court denied the continuance because the case had been continued multiple times and Love's motion came so close to the trial date. Other than Ivery, the potential witnesses were never identified and their proposed testimony was not disclosed. Reid, Gonzalez, and Villella all involve situations where the state secured rulings that excluded from evidence the known testimony of specific witnesses, and then argued that the absence of such testimony was proof of guilt.

      . “[A] police officer’s state of mind is generally not a material issue in a criminal prosecution.” State v. Baird, 572 So.2d 904, 907 (Fla.1990); Keen v. State, 775 So.2d 263, 270 (Fla.2000). In this case, Love tried to show that the officers' conduct at the scene, such as calling for back up and arresting him on a driver’s license violation, were vengeful acts motivated by Love’s criticism of the police. Given this strategy, the state was entitled to explore the motives behind the officers’ acts at the scene.

      . Given the way the state and defense tried the case, we recognize that the trial court worked hard to keep the case within proper bounds. On the one hand, the defense wanted to use the case as a referendum for police-citizen relations in Pahokee; on the other hand, the state sought to introduce every innuendo and negative comment that the police had heard about Love to justify the actions of the police. By so focusing on irrelevant issues, the case recalls the "incredible incident” in People v. Steinhardt, 9 N.Y.2d 267, 270, 213 N.Y.S.2d 434, 173 N.E.2d 871, 873 (1961), where the "lawyers and the court re-fought the battle of Anzio in the Second World War.”

      . Given the amount of litigation generated by the use of the "and/or” locution in jury instructions, trial courts should avoid the locution when drafting the jury charge on the applicable law. In Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), we adopted a contextual approach for deciding whether an "and/or” instruction gave rise to fundamental error. Garzon certified conflict with Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), but the second district has since written that we read Zeno too broadly. See Green v. State, 968 So.2d 86, 91 n. 9 (Fla. 2d DCA 2007). In both Womack v. State, 942 So.2d 955 (Fla. 4th DCA 2006), and Dempsey v. State, 939 So.2d 1165 (Fla. 4th DCA 2006), this court certified questions involving “and/or” instructions.


text:
    B.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1158.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 2008.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

B.H. appeals the trial court’s restitution order requiring her to satisfy two obligations totaling in excess of $125,000. B.H. asserts that the trial court committed two errors. First, the trial court failed to comply with section 985.437(2), Florida Statutes (2006), by not determining a restitution amount that the child could reasonably be expected to pay. Second, the trial court improperly relied on hearsay evidence in ordering the amount of restitution. The State concedes error. We agree.

Accordingly, we reverse and remand for a new evidentiary hearing.

Reversed.

FULMER, CASANUEVA, and CANADY, JJ., Concur.


text:
    Eddy VAILBAILON, Petitioner, v. Ric L. BRADSHAW, Sheriff of Palm Beach County, and State of Florida, Respondents.
    No. 4D08-2.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2008.
    Carey Haughwout, Public Defender, Daniel Cohen and Karen Fagan, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

Eddy Vailbailon asks this court to grant an emergency writ of habeas corpus after the trial court denied bond without considering the applicable standards. See Fla. R.Crim. P. 3.131(b)(3), 3.132; § 903.046, Fla. Stat. (2007). We grant the petition and accept the State’s limited concession that the case be remanded to the circuit court for purposes of holding a hearing to consider Vailbailon’s request to set bond.

SHAHOOD, C.J., FARMER and HAZOURI, JJ., concur.


author: STONE, J.

text:
    REPUBLIC PROPERTIES CORPORATION (“RPC”), Appellant, v. The GRAND JURY PRESENTMENT ON the CITY OF WEST PALM BEACH, PART A, FALL TERM 2006, Appellee.
    No. 4D07-1921.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2008.

      Guy A. Lewis, Michael R. Tein, and Michael G. Moore of Lewis Tein PL, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Republic appeals an order denying its motion to expunge a portion of the introduction to a grand jury report. We reverse.

The grand jury report implicated Republic, in its introduction, as engaging in “irregular and illegal practices” in connection with a large scale, public-development project. Specifically, the introduction stated, in relevant part:

After irregular and illegal practices surfaced regarding Republic Properties and the West Palm Beach City Center project, this Grand Jury was convened to investigate corruption, ethics and whether the City of West Palm Beach conducts business under a ‘pay to play’ practice.

The introduction also mentioned Republic in a footnote, stating that Republic was “a real estate development company [that] paid consulting fees to then City Commissioner Ray Liberti in relation to the City Center Project.” Republic was not otherwise mentioned in the report, and it is undisputed that there had not been any investigation of, or charge against, Republic.

The presentment was submitted on January 31, 2007, as a confidential document. Two days later, on February 2, the state released the report to the general public without notice to Republic.

Section 905.28(1), Florida Statutes, provides:

A report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

(Emphasis added)

On March 28, 2007, Republic filed a motion to expunge a portion of the presentment under section 905.28, Florida Statutes, seeking to remove all references to Republic from the presentment. By this time, the presentment had been posted on the state attorney’s website and reported in the local media, without notice to Republic.

It is undisputed that Republic was not a target of the investigation. In its motion, Republic also included a letter to its counsel in which the state attorney’s office confirmed it was not investigating Republic.

Republic correctly asserts that when a presentment is not accompanied by a true bill or indictment, such as in this case, the presentment may not be made public or be published, as to any individual it relates to, until notice and a copy are provided, and the individual is given fifteen days to file a motion to repress or expunge any portion which is improper and unlawful.

Republic also correctly argues that when a “comment is a conclusion which lacks a factual foundation within the presentment, or a comment amounts to a factual finding that is unnecessary to the inquiry relating to the public officials or the expenditure of public funds, then those portions of the presentment must be expunged, because they are improper or unlawful.” (quoting In re Grand Jury (Freeport Sch. Project) Winter Term 1988, 544 So.2d 1104, 1107 (Fla. 1st DCA 1989) (emphasis in original)).

The basis for the trial court’s denial is that Republic lacked standing, as the report did not relate to Republic. In support of the order’s conclusions that Republic lacks standing, the state argues that section 905.28 was “not triggered” here and that, as a result, the statute does not apply. Urging a narrow interpretation, the state asserts that the phrase “relating to,” as used in the statute, requires a more significant association or connection than exists in this case, opining that the grand jury’s presentment reflects merely “the nominal use of the name Republic.”

Section 905.28(1) was enacted to protect those “whose character is impugned in a [grand jury] report unaccompanied by indictment.” Miami Herald Pub. Co. v. Marko, 852 So.2d 518, 520 (Fla.1977). This appears to be the statute’s purpose. See id. at 520-21 (explaining that section 905.28 was “undoubtedly” enacted because, “while one charged with the commission of a crime as a result of this process has a full opportunity for public clarification of misleading data and personal vindication through a public trial, no comparable means of vindication exists for one whose character is impugned in a report unaccompanied by indictment”).

The statute also protects the integrity of the grand jury process itself. See Barry Jeffrey Stern, Revealing Misconduct by Public Officials Through Grand Jury Reports, 136 U. Pa. L. Rev. 73, 127 (1987) (observing that the opportunity of pre-publication judicial review “promotes public confidence in the fairness of the reporting process”). This goal seems especially important considering the nature of a grand jury presentment. We have said that:

[a] presentment (report) is a foul blow. It wins the importance of a judicial document; yet it lacks its principal attributes-the right to answer and to appeal. It accuses, but furnishes no forum for denial. No one knows upon what evidence the findings are based. An indictment may be challenged-even defeated. The presentment is immune. It is like the ‘hit and run’ motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.

In re Brevard County Grand Jury Interim Report, Fall Term, 1970, 249 So.2d 709 (Fla. 4th DCA 1971) (quoting People v. McCabe, 148 Misc. 330, 266 N.Y.S. 363, 367 (Sup.Ct.1933)) (emphasis supplied).

In Philpitt v. Weintraub, 377 So.2d 247 (Fla. 3d DCA 1979), the Third District was faced with the question of what to do when the state violates the notice and service provisions contained in section 905.28(1). There, the Dade County grand jury launched an investigation into allegations of public corruption in the city of Opa Locka. In returning indictments against several city officials, the grand jury filed a report which was, in part, critical of the city attorney. This report was immediately released to the media. The city attorney was not furnished with a copy of this report prior to its filing and public release. Deprived of opportunity to seek pre-publi-cation judicial review, the city attorney filed a post-publication action to expunge based in part on the state’s violation of section 905.28(1). Id. at 247-48.

The trial judge entered summary judgment for the city attorney, expunging all references to him from the subject grand jury report. Id. at 248. The appellate court affirmed, holding that the state’s violation of the statute, by itself, required expunction. The court found that,

[wjhere the notice and service provisions of the statute are totally and unjustifiably ignored by the state and the grand jury report in question is publicly released in violation of these provisions, as in this case, it is clear that the report relating to the individual involved is subject to expungement else the pre-public release provisions of the statute become meaningless.

Id. at 249.

Although the state distinguishes Phil-pitt, insofar as the state recognizes that the report in Philpitt did “relate to” the city attorney, the state does not dispute that the Philpitt remedy is applicable where a report is shown to relate to the movant, and the state did not comply with the notice and opportunity provisions of the statute.

The United States Supreme Court has stated, albeit in a different statutory context, that “[t]he ordinary meaning of the ... words [‘relating to’] is a broad one,” and defined the phrase as: “to stand in some relation to; to have bearing or concern, to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting Black’s Law Dictionary 1128 (5th ed. 1979)); accord United States v. Weis, 487 F.3d 1148, 1152 (8th Cir.2007). The phrase does not necessarily mean, as argued by the state, a “significant” association or connection. Indeed, the word “significantly” does not appear anywhere in the statute; nor is the word “relating” modified.

As the Philpitt court made clear, section 905.28 “by its express terms affords a person whose character is impugned in a grand jury report, but who has not been indicted by the grand jury, an opportunity to prevent the publication of unfavorable material through the repression of matter that is ‘improper and unlawful.’ ” 377 So.2d at 248 (quoting Marko, 352 So.2d 518) (emphasis added). “It is evident that the statute’s underpinning derives from a constitutional imperative that a person’s liberty interest in the preservation of reputation not be exposed to degradation without antecedent procedural due process. Section 905.28(1) provides the essential ‘notice and an opportunity to be heard.’ ” In re Grand Jury, Fall Term 1986, Pinellas County, 528 So.2d 51, 53 (Fla. 2d DCA 1988). Here, the state denied Republic such notice and opportunity.

Although the state took the position in the trial court that Republic’s motion was time barred, the state concedes in its answer brief that “expungement would be warranted” if Republic “had standing” under section 905.28, standing being determined by whether the report relates to Republic.

We also note that if the state were correct in its position that the presentment “illustrated the nominal use of the name Republic” and that the “style of grammar used by the Grand Jury in the first sentence along with the employment of a footnote clearly demonstrates the slight use of the name Republic,” and that the “Grand Jury Presentment is not about Republic,” then it is obvious that no harm is done to the integrity of the report by expunging.

We emphasize that we have not considered whether the “improper and unlawful” provisions of the statute are met in this case, as such would be the concern in the hearing directed by the statute. Nor does the state argue the “improper and unlawful” provision is applicable to the issue on appeal. The issue is solely whether the report is one “relating to” Republic for the purpose of giving it standing to seek relief for its loss of notice and opportunity to clear its name. If so, expungement is required absent a claim that the premature publication was justified.

We conclude that, here, the grand jury report is one “relating to” Republic, given Republic’s prominence in the introduction’s statement:

After irregular and illegal practices surfaced regarding Republic Properties and the West Palm Beach City Center project, this Grand Jury was convened to investigate corruption, ethics and whether the City of West Palm Beach conducts business under a ‘pay to play’ practice.

(Emphasis added).

Therefore, we reverse the order and remand, with instructions to expunge all references to Republic from the grand jury presentment.

POLEN and MAY, JJ., concur.


text:
    Troy DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3661.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Troy Davenport appeals a conviction of burglary of a dwelling and sentence of 30 years as an habitual felony offender (HFO) and prison releasee reof-fender (PRR) with credit for 348 days time served. He argues that (1) the trial court erred in denying his motion for judgment of acquittal, (2) the jury instructions on the elements of burglary constitute fundamental error, and (3) the trial court erred in sentencing Davenport as an HFO and PRR.

We affirm Davenport’s conviction without further comment on the first two issues. We reverse the trial court’s finding that Davenport qualified to be sentenced as an HFO and PRR because there is no evidence in the record to support it.

Davenport was charged by information with burglary of a dwelling. The State filed notices of its intent to seek to have Davenport declared an HFO and PRR. The case proceeded to trial by jury. The jury returned a verdict finding Davenport guilty. Davenport was also facing charges in two other related cases, which were resolved by way of a negotiated plea. In the related plea cases, the trial court (the same judge as in the instant case) declared Davenport a PRR and an HFO.

At sentencing for the instant case, the trial court purported to take judicial notice of its own files in the related plea cases, wherein certified copies of convictions were entered. The trial court sentenced Davenport to 30 years with credit for 348 days time served. A 15-year minimum mandatory was imposed as a result of qualifying as a PRR.

Davenport argues that the trial court erred in sentencing him as an HFO and PRR without sufficient proof. He claims that no proof of his prior convictions or the date of his release were admitted into evidence at the sentencing hearing.

It is permissible for a trial court to take judicial notice of its own files, but the trial judge has to put such evidence in the record of each case when sentencing a defendant as an HFO and PRR. See § 775.084(l)(a)2.a., Fla. Stat. (2007); see also Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001). Certified copies of convictions or the contents of other files would suffice, but the trial court failed to put either in the record in this case. We therefore reverse and remand for resen-tencing.

Reversed and Remanded.

STONE and MAY, JJ., concur.


author: CHUMBLEY, DOUGLAS J., Associate Judge.

text:
    Quayle RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3882.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 2008.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CHUMBLEY, DOUGLAS J., Associate Judge.

This matter is on appeal, from a conviction of guilt on two counts of lewd and lascivious battery upon J.J., a fifteen-year-old victim. The information filed in the case contained four counts of lewd and lascivious battery upon a minor. The first three counts contained allegations that occurred on the same day, December 16, 2005. The fourth count contained allegations of a lewd and lascivious battery that occurred sometime between September 1, 2005 and December 15, 2005. At trial, the State abandoned Count II, and proceeded to trial on Counts I, III, and IV. Qn August 22, 2006, the jury returned a guilty verdict on Counts I and III, and returned a not guilty verdict on Count IV. On September 25, 2006, the trial court sentenced Richardson to concurrent thirteen year prison terms.

On appeal, Richardson argues that the trial court erred in denying his pre-trial motion to suppress physical evidence and his post-Miranda sworn statement. In addition, he argues that his conviction on both Counts I and. Ill cannot stand because of double jeopardy reasons. Because we find that the trial court erred in denying Richardson’s motion to suppress, we reverse his convictions and sentences and remand for a new trial.

The facts relevant to the motion to suppress are as follows. On September 16, 2005, Officer Biscotti of the Coral Springs Police Department noticed a car in an empty parking lot next to a tennis complex. At the motion to suppress hearing, Officer Biscotti testified that he had made numerous drug arrests at this location. While he ran the tags on the vehicle, Officer Biscotti observed the car swaying back and forth, but could not see inside because the car had tinted windows. Officer Bis-cotti also testified that the swaying of the vehicle made it appear that there was a “struggle”, “fighting” or “just a lot of movement inside the car”. The officer could not see any struggle taking place and described the movement of the vehicle as not “extremely violent”. Officer Biscot-ti observed the vehicle for a few moments but did not approach the car at that time because “he wanted to run the tag first”.

After the vehicle left the parking lot, Officer Biscotti followed, and stopped the vehicle. Although Officer Biscotti testified that he believed he could have stopped the vehicle for illegally tinted windows, he also testified that he did not have a tint meter with him in his unit. At the hearing on the motion to suppress, Officer Biscotti testified that he pulled the vehicle over because he was “suspicious that something was occurring in the car[,] [sjomeone could have been at risk”. He further stated that he believed a “crime might be occurring in the vehicle due to movement inside the car”. At no time did the officer say he stopped the vehicle because he suspected the windows were illegally tinted or that he believed the windows were excessively tinted in violation of the statute.

Once the vehicle was stopped, Officer Biscotti approached the vehicle and looked inside. He saw a young girl in the back seat with muddled hair, her shoes off, and her belt undone. The officer ordered Richardson out of the car, handcuffed him, and called for back-up. A used condom was found outside the vehicle, and the condom wrapper along with KY jelly was found inside the vehicle. Later, after being read his Miranda warnings, Richardson gave a sworn statement implicating him in the alleged lewd and lascivious acts charged in the information.

The trial court denied the motion to suppress because it found that Officer Biscotti had reasonable suspicion to conduct the traffic stop because the officer’s observations created a reasonable belief that someone in the car may have been harmed. On appeal, Richardson argues that the officer lacked reasonable suspicion to suspect that criminal activity had been committed or was about to be committed, and thus, the stop of his vehicle was improper. As such, Richardson argues that the court erred in denying his motion to suppress the used condom, the condom wrapper, the KY jelly and his post-Miranda sworn statement. In response, the State argues that the facts and circumstances surrounding the vehicle created a reasonable suspicion of criminal activity and thus, the stop of the vehicle was constitutionally permissible'. According to the State, these facts and circumstances included the vehicle’s tinted windows, which the State argues provided enough reasonable suspicion to justify the stop of the vehicle. We agree with Richardson that Officer Biscotti did not have a reasonable suspicion that criminal activity was taking place or was about to take place, and that the stop of the vehicle was illegal. As such, the trial court erred in denying the motion to suppress the physical evidence and Richardson’s sworn statement.

A police officer may stop an individual temporarily if the officer has a reasonable suspicion that a person has committed, is committing or is about to commit a crime. See Popple v. State, 626 So.2d 185 (Fla.1993). When determining whether or not an officer has such a reasonable suspicion, the trial court must examine the totality of the circumstances under which the stop was made. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In looking at the totality of the circumstances, the trial court may consider the following:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of any operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978).

In the instant case, although the stop of the vehicle occurred after the car left the parking lot, any reasonable suspicion must be based upon the officer’s observations of the vehicle while it was parked in the empty parking lot since there was no testimony of any suspicious activity after the vehicle left the lot. Officer Biscotti testified that he based his belief that criminal activity had occurred or was about to occur upon the location of the vehicle in a deserted parking lot and the unusual movements he saw. Although he could not see in the vehicle, he described the unusual movements as swaying that was not “extremely violent”.

Although this activity is certainly unusual, the location of the vehicle and the nonviolent swaying alone do not justify the stop. The activity described by Officer Biscotti is no more suspicious than the activity in other similar cases where courts have found activity surrounding parked vehicles did not rise to the level of reasonable suspicion. See, e.g., Popple v. State, 626 So.2d 185 (Fla.1993) (no reasonable suspicion to conduct a stop where car was legally parked in a deserted area despite the fact that defendant made a clandestine movement as soon as he saw officer); Parsons v. State, 825 So.2d 406 (Fla. 2d DCA 2002) (holding - no reasonable suspicion where defendant, a previous sex offender, was parked in an apartment complex in the early morning hours with a pair of binoculars sitting on his lap because the officer could not articulate what crime he suspected was being committed); Miranda v. State, 816 So.2d 132 (Fla. 4th DCA 2002) (holding that the officer did not testify to enough facts to give her a reasonable suspicion of criminal activity where the defendant was parked in an apartment complex in the early morning hours in a high crime area and made “furtive” movements). The trial court erred in denying . the motion to suppress the evidence seized as a result of the illegal stop of Richardson’s vehicle. On remand, the condom wrapper, the KY jelly, and Richardson’s sworn statement shall not be admitted into evidence during any new trial.

The used condom, however, may be admissible upon retrial. The evidence is undisputed that the used condom was found outside the vehicle, but it is unclear whether the condom was found in the lot where the vehicle was parked or outside the vehicle at the location where the vehicle was ultimately stopped. Upon remand, the trial court should make this factual determination in deciding whether the used condom found outside the vehicle should be suppressed.

Because the trial erred in denying Richardson’s motion to suppress, we reverse the convictions of guilt and the consecutive thirteen year sentences, and remand this case for a new trial.

Reversed, and Remanded.

WARNER and HAZOURI, JJ., concur.

      . The tint on the windows also does not support the stop of Richardson’s vehicle. The officer stated that he believed he could have stopped the vehicle based upon only the window tint. The mere presence of tinted windows is not sufficient to justify the stop where there was no evidence that the officer reasonably believed that the windows were excessively tinted or violated the statute regarding window tints. See United States v. Collins, 863 F.Supp. 165 (S.D.N.Y.1994); Hilton v. State, 961 So.2d 284 (Fla.2007). The fact that the officer testified that he stopped the vehicle for reasons unrelated to the window tint further supports the conclusion that the officer did not have a reasonable belief that the windows were excessively tinted or violated Section 316.2956, Florida Statutes (2006).

      . Since this matter will be retried, we will briefly address Richardson’s double jeopardy argument. We find no merit to Richardson’s argument that his convictions on Counts I and III violated double jeopardy. See Samuel v. State, 925 So.2d 475 (Fla. 4th DCA 2006); Darville v. State, 912 So.2d 63 (Fla. 4th DCA 2005); Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005).