text:
    Scott KATZMAN, M.D. and Advanced Orthopaedics, P.A., Petitioners, v. REDIRON FABRICATION, INC., George Martin and Allison Minjares, Respondents.
    No. 4D11-1290.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, and Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for petitioners.
    William T. Viergever and Sharon Bidka Urbanek of Sonneborn Rutter Cooney & Smith, P.A., West Palm Beach, for respondent Rediron Fabrication, Inc.
    Celene H. Humphries and Tracy S. Carlin of Brannock & Humphries, Tampa, for Amicus Curiae Florida Justice Association.
   On Motion FOR Claeification AND CERTIFICATION

PER CURIAM.

Petitioner has moved for rehearing, rehearing en banc, clarification, and for certification of a question of great public importance. The Florida Justice Association has filed an amicus brief raising new issues that were not brought by the parties. The amicus acknowledges that this court cannot decide the case based on its newly-raised arguments. Nevertheless, it asks that this court clarify that the opinion is limited to the unique facts of this case.

We decline to rehear this issue m banc and deny petitioner’s motion for rehearing as it does not identify any point of law or fact that this court overlooked or misapprehended. Fla. R.App. P. 9.330(a). We also deny the motion for certification. We grant clarification, withdraw the previous opinion and issue the following in its place.

Posture

Scott Katzman, M.D., and his medical practice, Advanced Orthopaedics, P.A. (collectively Dr. Katzman), petition for a writ of certiorari from a trial court order denying their motion for a protective order. Dr. Katzman, a non-party to the underlying personal injury suit, contends that the defendant’s discovery requests are over broad, unduly burdensome, and beyond what is authorized from an expert witness under Florida Rule of Civil Procedure 1.280(b)(4)(A).

The trial court’s discovery order is narrowly tailored and does not unduly intrude into the private financial affairs of the non-party. We conclude that the trial court did not abuse its broad discretion in controlling discovery and deny the petition.

Facts

Plaintiffs George Martin and Allison Minjares were involved in an auto accident with a vehicle owned by defendant Rediron Fabrication, Inc. and filed suit seeking damages for their alleged injuries. Plaintiffs’ lawyer referred them to Dr. Katz-man. Katzman entered into a letter of protection agreement (LOP) agreeing to be paid for treating the plaintiffs from any recovery obtained in the lawsuit.

Katzman performed an allegedly controversial outpatient surgical procedure on the plaintiffs. Katzman performed the procedure on both plaintiffs within weeks of what defendant refers to as a “minor auto accident.” One procedure took less than 45 minutes, and Katzman billed more than $45,000. He billed more than $36,000 for the second plaintiff. In 2008, the Center for Medicare and Medicaid Services issued a national non-coverage determination finding no evidence that this procedure improves health or reduces pain. Defendant believes that a large portion of Katzman’s income is generated by recommending this procedure for patients referred to him in litigation cases and that he charges more for the procedure in litigation cases than in nonlitigation cases.

Rediron sought discovery from Katzman regarding how often he has ordered dis-cectomies over the past four years and what he has charged in litigation and non-litigation cases. Katzman objected, moved for a protective order, and argued that the discovery is overbroad and exceeds the financial discovery that is permitted from retained experts under the discovery rules and Elkins v. Syken, 672 So.2d 517 (Fla. 1996).

After two hearings, the circuit court ruled that defendant must respond to the following requests:

6. Dr. Katzman will provide the amounts he has collected from health insurance coverage on an annual basis in 2007, 2008, 2009 and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years from those health insurers.
7. Dr. Katzman will provide the amounts he has collected under letters of protection received from attorneys on an annual basis in 2007, 2008, 2009, and 2010 regarding the type of surgery as what he performed on George Robert Martin and Allison Minjares, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years pursuant to those letters of protection.

This petition followed.

Jurisdiction

Certiorari jurisdiction does not lie to review every erroneous discovery order. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). “[Rjeview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Id. (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)).

This court generally will not review orders denying a party’s over-breadth or burdensomeness objections to discovery. See Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1200 (Fla. 4th DCA 2000); Cmtys. Fin. Co. v. Bjork, 987 So.2d 231 (Fla. 4th DCA 2008).

The order at issue in this case, however, requires production of otherwise private financial information from a non-party, which has no right to appeal.

Petitioner alleges that the order is over-broad, unduly burdensome, and that it departs from the essential requirements of Elkins and rule 1.280. To this extent, petitioner makes a threshold jurisdictional showing that the trial court’s order compels production of cat-out-of-the-bag discovery. Martin-Johnson, 509 So.2d at 1100. See also Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007).

Analysis

In Syken v. Elkins, 644 So.2d 589 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996), experts retained to provide compulsory medical examinations were ordered to produce expansive discovery of their private financial information, including tax returns. The information was sought to show what should have been fairly obvious to most, that the expert may be biased in favor of the retaining party because he or she has a financial incentive. Trial courts, however, permitted broad, wholesale discovery into the private financial affairs of the experts far beyond what was reasonably necessary to fairly litigate the potential for bias. The problem with such invasive and harassing discovery was expanding and threatened to chill the willingness of experts to become involved in litigation.

The Third District Court of Appeal fashioned a methodology that balanced a party’s need to obtain financial bias discovery from an expert with the need to protect the privacy rights of experts. The Florida Supreme Court approved of the Third District’s criteria and, subsequently, the methodology was codified in Florida Rule of Civil Procedure 1.280(b)(4)(A).

Several years following Elkins, the court decided Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla.1999), which arose from insurance litigation. The insured sought to discover from the insurance company the extent of its financial relationship with the expert witness that the insurance company intended to call at trial to dispute causation. The court held that the Elkins limitations could not be used to shield the discovery sought from the party regarding its financial relationship with the expert. The court strongly condemned the insurance company’s attempt to hide discovery of its financial relationship with the expert; “Only when all relevant facts are before the judge and jury can the ‘search for truth and justice’ be accomplished.” Id. at 995 (emphasis in original) (citation omitted). Because the discovery in Boecher sought information from the party regarding its relationship with a particular expert, the court found that the analysis changed and the balance of interests shifted in favor of allowing the discovery. Id. at 997.

The situation presented in this case, which we have seen recurring, in-volves a physician who treats a patient who was involved in an auto accident and referred by a lawyer. The physician enters into a letter of protection (LOP) agreement and agrees to obtain payment from any recovery that is obtained in the law suit. In one respect, the physician is a “fact” witness, a treating physician.

In another respect, the same physician often provides expert opinions at trial regarding the permanency of injuries, prognosis, the need for future treatment, etc. The physician is not merely a witness retained to give an expert opinion about an issue at trial. Likewise this is not a typical treating physician that a patient independently sought out. A lawyer referred the patient to the physician in anticipation of litigation and therefore the physician has injected himself into the litigation. This witness potentially has a stake in the outcome of the litigation not because of the LOP — because of the referral by the lawyer. The LOP merely gives the doctor the assurance that his/her bill will be paid directly from the proceeds of any settlement or verdict. It is the direct referral by the lawyer to the doctor that creates a circumstance that would allow the defendant to explore possible bias on the part of the doctor.

As in Boecher, the circumstances in the present situation are different from that in Elkins, and the balance of interests is different.

Katzman argues that he is an “expert” within the meaning of the rule and that financial bias discovery is therefore limited. See Fla. R. Civ. P. 1.390(a) (defining “expert” as the term is used in the discovery rules as “one possessed of special knowledge or skill about the subject upon which called to testify”). Katzman alleges that he is being compelled to compile and produce non-existent documents which exceeds what Elkins and rule 1.280(b)(4)(A) allow.

The parties do not dispute that Katz-man, who has been listed as an expert for trial, qualifies as an expert under the rule. Katzman is expected to provide expert opinion testimony as a witness in this case, but Katzman is also a treating physician who has provided treatment under a letter of protection agreement.

Elkins and rule 1.280(b)(4)(A) limit general financial bias discovery sought for impeachment of a retained expert. Petitioner relies on Price v. Hannahs, 954 So.2d 97 (Fla. 2d DCA 2007), but in that case the trial court had granted general financial bias discovery in excess of that permitted by the rule. Boecher makes clear that Elkins was not intended to shield from discovery potentially relevant'information.

In this case, the discovery that is sought is not relevant merely to show that the witness may be biased based on an ongoing financial relationship with a party or lawyer. We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the lawsuit. The limited intrusion into the financial affairs of the doctor in this case is justified by the need to discover case-specific information relevant to substantive issues in the litigation, i.e., the reasonableness of the cost and necessity of the procedure. In our view, it meets the requirement of “unusual and compelling circumstances.”

We have previously recognized that a defendant may discover from a medical provider billing information regarding this particular procedure. Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So.3d 148 (Fla. 4th DCA 2010). In Hasson, we recognized that such discovery is permitted as it is calculated to lead to the discovery of admissible evidence regarding the reasonableness of medical expenses, that is, whether the health care provider “charges non-litigation patients a lower fee for the same medical services.” Id. at 150. The fact the medical provider in this case is also expected to provide an “expert” opinion at trial changes nothing.

We reject petitioner’s attempt to create a per se rule that all “financial” discovery from any “expert,” regardless of whether the expert also is a treating doctor, is always limited strictly to those matters set forth in rule 1.280(b)(4)(A).

Trial courts have broad discretion in controlling discovery and in issuing protective orders. Rojas v. Ryder Truck Rental, Inc., 641 So.2d 855, 857 (Fla.1994). Trial courts should not allow discovery to become a tactical litigation weapon to harass the witness, the party, or the law firm(s). See Fla. R. Civ. P. 1.280(b)(4)(C) (allowing trial courts to require the party seeking discovery from an expert to pay a fair part of the fees and expenses reasonably incurred by the expert).

In this case, the trial court did not abuse its broad discretion when it permitted the limited discovery at issue, and the discovery order does not depart from the essential requirements of law.

Petition Denied.

POLEN, TAYLOR and LEVINE, JJ. concur.

      . Katzman performed a "percutaneous dis-cectomy” which involves removal of herniated disc material that presses on a nerve root or the spinal cord. Defendant explained that insurance companies and third party payors have questioned the need for and efficacy of this procedure.

      .In relevant part, the rule provides;
      (iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
      1. The scope of employment in the pending case and the compensation for such service.
      2. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants.
      3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
      4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services. An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(4)(C) of this rule concerning fees and expenses as the court may deem appropriate.
      Fla. R. Civ. P. 1.280(b)(4)(A)(iii).


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Bobby Lee BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-780.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 2011.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Bobby Lee Black appeals his convictions of home invasion robbery with a deadly weapon and a mask, kidnapping with a mask, sexual battery with a deadly weapon and a mask, aggravated battery of a person sixty-five years of age or older with a mask, and grand theft of a motor vehicle. We affirm Black’s convictions but remand for correction of his judgment to reflect that grand theft of a motor vehicle is a third-degree felony. Black need not be present for the correction. See Mathis v. State, 735 So.2d 549 (Fla. 2d DCA 1999).

Affirmed but remanded for correction of judgment.

WALLACE and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Robert DAVIS, Appellant, v. M & M AIRCRAFT ACQUISITIONS, INC., a Delaware corporation, and Aerovision, LLC, a New Hampshire limited liability company, Appellees.
    No. 4D11-706.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Robert J. Hauser and Joseph G. Galardi of Beasley Hauser Kramer & Galardi, P.A., West Palm Beach, for appellant.
    S. Brian Bull of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellee M & M Aircraft Acquisitions, Inc.
    David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellee Ae-rovision, LLC.
   PER CURIAM.

The issue in this appeal is whether appellant, a non-party to the original action, has standing under Florida Rule of Civil Procedure 1.540(b) to challenge a final declaratory judgment allegedly procured by “fraud” or “collusion.” We find that the final judgment directly affected appellant’s rights such that he has standing to be heard on the merits of his motion.

Appellant and Daniel McCue respectively owned 40% and 60% of appellee Aerovision, LLC. When McCue sold his interest in Aerovision to appellee M & M Aircraft, Inc., appellant filed an action for declaratory relief against McCue in federal district court, seeking a judgment affirming that appellant was the only member authorized to manage Aerovision. The same day McCue filed his answer, M & M sought declaratory relief against Aerovision. M & M and Aerovision, through McCue, jointly requested the trial court to issue a declaratory judgment establishing that McCue “is the authorized representative of [Aerovision] for all matters.” The trial court issued a final judgment finding that McCue was Aerovision’s “sole managing member.” Neither appellee informed the trial court of appellant’s asserted interests in Aerovision. The Canadian government, with whom Aerovision contracted, informed appellant that it would rely on the final judgment.

Appellant moved to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), alleging it was obtained by fraud. Appellees moved to strike appellant’s motion, arguing that appellant lacked standing to assail the judgment. The parties stipulated at the hearing on the issue of appellant’s standing that appellant owned a 40% interest in Aerovision, that appellant had authority to manage Aerovision, and that the final judgment was fraudulently obtained. The trial court determined that appellant lacked standing, finding that the judgment “does not directly affect [appellant’s] rights,” and that appellant was not “in any way bound by the judgment.” This appeal followed.

“[A] stranger to the action has standing under the rule to move for vacation of the judgment when that judgment was obtained by fraud or collusion and directly affected the rights of that person.” State Airlines, Inc. v. Menut, 511 So.2d 421, 424 (Fla. 4th DCA 1987) (quoting Pearlman v. Pearlman, 405 So.2d 764, 766 (Fla. 3d DCA 1981)).

We find, on the facts of this case, that the allegations in appellant’s motion combined with the facts stipulated by the parties at the hearing were sufficient to establish that the final judgment directly affected appellant’s rights. See generally Chaluts v. Nagar, 862 So.2d 925 (Fla. 2d DCA 2004); Woginiak v. Kleiman, 523 So.2d 1209 (Fla. 3d DCA 1988). Since the parties stipulated to appellant’s ownership interest and managing authority, we conclude that the trial court’s view of the effect of the judgment on appellant’s rights was too narrow. However, on remand, appellees may introduce evidence which tends to prove that appellant no longer owns an interest in Aerovision.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON, HAZOURI and LEVINE, JJ., concur.

      . For example, appellant settled the federal action against McCue prior to moving to vacate the final judgment. Appellant reserved a 40% ownership interest in the Canadian government contract but did not explicitly reserve any ownership interest in Aerovision. Thus, while we find that appellant has standing to attack the judgment by motion based on the parties’ stipulations, we note that the disposition of the federal action may have rendered appellant's interests not directly affected by the final judgment. We therefore direct the trial court on remand to consider the effect of the settlement agreements on whether the final judgment should ultimately be vacated.


text:
    Timothy ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4477.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Pantoja v. State, 59 So.3d 1092 (Fla.2011).

POLEN, STEVENSON and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Louis LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2256.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Louis Lopez appeals his convictions and sentences for aggravated assault, burglary of a dwelling with an assault or battery, two counts of attempted felony murder, and shooting a deadly missile at a vehicle. He raises two claims of error as to his conviction, one as to the denial of a juror challenge for cause and the other as to his attorney’s ineffective assistance in failing to object to an out-of-court identification. We find no error on either issue.

First, appellant claims that the trial court erred in denying a challenge for cause to one of the jurors. Specifically, the juror expressed concern that the “beyond a reasonable doubt” burden would make it harder to find the appellant guilty or not guilty. This statement does not show bias for or against the defense. As we said in Juede v. State, 887 So.2d 1114, 1115 (Fla. 4th DCA 2008),

A juror should be dismissed for cause where there is reasonable doubt as to his or her impartiality.... The applicable test is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.... Whether a challenged juror’s responses meet the ... test is a mixed question of law and fact to be resolved by the trial court.

(citations omitted). We conclude that the court properly denied the challenge because the juror did not evidence any bias.

Second, appellant also claims ineffective assistance of counsel on the face of the record for failure of his attorney to object to an unnecessarily suggestive out-of-court identification of appellant. Ineffective assistance of counsel arguments are not cognizable on direct appeal generally. McKinney v. State, 579 So.2d 80, 82 (Fla. 1991). We find that the general rule is applicable here.

Affirmed,.

MAY, C.J., and POLEN, J., concur.

      . In the initial brief on appeal, appellant also raised errors in sentencing. These were corrected through a Rule 3.800(b)(2) motion in the trial court. However, we would note that one of the sentences did not require correction, based upon case law developed after the sentence correction. Appellant was charged with and was found guilty of shooting a deadly missile into an occupied vehicle. The judge sentenced him as a PRR to fifteen years in prison. The state conceded that shooting a deadly missile is not a qualifying offense for PRR sentencing, citing Paul v. State, 958 So.2d 1135 (Fla. 4th DCA 2007). Paul involved shooting into a building, a crime which did not qualify for PRR sentencing. However, in Paul v. State, 59 So.3d 193 (Fla. 4th DCA 2011), we held that shooting a deadly missile into a vehicle would qualify for PRR sentencing, because section 790.19 required the vehicle to be occupied.


text:
    Leon KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1211.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, and Leon King, Bushnell, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, DAMOORGIAN and GERBER, JJ., concur.


author: MAY, C.J.

text:
    Guichard JEAN-BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4958.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Jennifer R. Kuczler, Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction for sexual battery on a person under twelve by a person under the age of eighteen, and his life sentence. We find no merit in the issues raised concerning his conviction, but reverse his life sentence. We remand the case to the trial court for resentencing.

Recently, the United States Supreme Court held that a life sentence without the possibility of parole for a non-homicide crime constitutes cruel and unusual punishment for a defendant under the age of eighteen at the time the crime is committed. Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 2033-34, 176 L.Ed.2d 825 (2010). “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. at 2034.

Here, the defendant was sixteen at the time of the crime. His life sentence violates the Eighth Amendment of the United States Constitution and must be reversed. See Cunningham v. State, 74 So.3d 568 (Fla. 4th DCA 2011).

The conviction is affirmed, but the life sentence is reversed and the case is remanded for resentencing.

STEVENSON and CIKLIN, JJ., concur.


author: GRIFFIN, J.

text:
    MH NEW INVESTMENTS, LLC, etc., et al., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 5D10-2697.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.
    Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Gerald B. Currington, General Counsel, and Gregory G. Costas, Assistant General Counsel, of Department of Transportation, Tallahassee, for Appellee.
   GRIFFIN, J.

L-N-W Pizza [“L-N-W’] appeals the trial court’s summary final judgment dismissing L-N-Ws business damages claim in an eminent domain proceeding brought by the Florida Department of Transportation [“DOT”] to take land for a drainage easement.

MH New Investments, LLC, owned property which was the subject of DOT’s action, but L-N-W had a long term lease and had, for many years, operated a pizza restaurant and delivery business there. The area to be taken was a portion of the parking lot.

DOT sought dismissal of the business damages claim on the ground that L-N-W did not have an interest in the real property at issue, only a license to use the real property. DOT attached a portion of the lease agreement, which provides in pertinent part:

SECTION 1. PREMISES. The Lessor does hereby lease and demise unto the Lessee, and the Lessee does hereby rent and take as tenant under the Lessor, the following described premises (the “Premises”):
The address of said unit being 6310 West Colonial Drive, Orlando FL.
It shall be conclusively presumed, for all purposes under this Lease, that the Premises contain a total of one thousand seven hundred (1,700) square feet.
SECTION 2. LICENSE. Lessor does hereby grant to Lessee a nonexclusive license for the use and enjoyment of those certain areas appurtenant to the Premises, consisting of all walkways and approaches to the Premises and the parking area adjacent thereto. The license granted hereby shall exist only during the term of this Lease, and shall terminate simultaneously with any termination of the Lease.

(Emphasis supplied). L-N-W contends that, in spite of the denomination of its interest in the common areas and parking lot as a “license,” it is, in fact, a nonexclusive easement to utilize the common areas, including parking and approaches, during the term of the lease. L-N-W pointed out that it was obliged to pay a fee for maintenance of the common areas.

The trial court concluded that L-N-W’s right to use and enjoy the common areas, driveway and parking lot, was only a license. The trial court reasoned that because the term “license” was used, only a license was intended. Because a license will not support a business damages claim under section 73.071(3)(b), Florida Statutes, the trial court dismissed the claim. We reverse.

In order to be compensated under section 73.071(3)(b) for business damages resulting from a partial eminent domain taking, the party to be compensated must have an interest in the real property taken. Since a license to use real property is a privilege to use, not an interest in real property, business damages may not be predicated upon a license to use real property. See Brevard County v. Blasky, 875 So.2d 6, 12 (Fla. 5th DCA 2004) (a license “is a personal privilege, and generally may be revoked at the pleasure of the grant- or”); Devlin v. The Phoenix, Inc., 471 So.2d 93, 95 (Fla. 5th DCA 1985) (“[a] license, whether express or implied, is not a right but is a personal privilege, not assignable without express permission”). The terminology used is not dispositive, however. Courts look to what a thing is, not what it is called. By its nature, a license is permissive and readily revocable at the option of the owner. Here, L-N-W had an express and enforceable right to use the areas at issue for the term of the lease. This is sufficient to support a claim for business damages in eminent domain. Night Flight, Inc. v. Tampa-Hillsborough County Expressway Auth., 702 So.2d 538 (Fla. 2d DCA 1997); Tatum v. Dance, 605 So.2d 110, 112-13 (Fla. 5th DCA 1992); Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 2:9, 2-20-21 (2001).

REVERSED.

TORPY and COHEN, JJ., concur.


author: EVANDER, J.

text:
    Jeffrey Manny GOLDBERG, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3450.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.

      James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Jeffrey Goldberg was convicted, after a jury trial, of grand theft from a person sixty-five years of age or older of property valued between $800 and $10,000. He appeals the trial court’s imposition of a three-year prison sentence where he scored less than twenty-three points on his sentencing scoresheet and the trial court failed to make written findings that a non-state prison sanction could present a danger to the public. We reverse.

Section 775.082(10), Florida Statutes (2009) provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

(Emphasis added).

The State does not dispute that under section 775.082(10), Goldberg was entitled to a nonstate prison sanction unless the court made written findings, supported by competent evidence, that imposition of a nonstate prison sentence could present a danger to the public.

The facts presented at trial show that Goldberg, while working as an operating room nurse, stole jewelry from an elderly patient. At the sentencing hearing, the trial court understandably focused on Goldberg’s reprehensible conduct of stealing from an incapacitated patient:

Well, I mean, the Court thinks that this is pretty serious, you know, when you take the ring off somebody who is incapacitated or take — you are in their environment. You are right there next to them. It is like burglarizing somebody’s home....
And you make the nursing profession look bad because a person in a nursing environment generally is under the complete control of those around them and you took advantage of a situation. And therefore, I think, you know, I have got to punish you to this extent.

However, the trial judge made no pronouncement as to whether a nonstate prison sanction could present a danger to the public and the written sentencing order similarly failed to address this issue.

While this appeal was pending, Goldberg filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that because the court failed to make contemporaneous written findings that a nonstate prison sanction could present a danger to the community, the sentence should be corrected to a nonstate prison sanction. In response, the trial court entered an “Order Granting Departure Sentence from Sentencing Guidelines.” The order reiterated the rationale for a prison sentence given by the trial court at the sentencing hearing, but again failed to include findings that the imposition of a nonstate prison sanction could present a danger to the public.

The trial court may well have been able to correct its initial failure to make the necessary written findings required by section 775.082(10) by doing so in response to Goldberg’s rule 3.800(b)(2) motion. See, e.g., Mandri v. State, 813 So.2d 65 (Fla. 2002) (trial court’s failure to file written reasons in support of guidelines departure sentence was harmless error corrected by court’s filing of written reasons in response to motion for correction of sentence). However, it failed to do so. On remand, the trial court must sentence Goldberg to a nonstate prison sanction.

REVERSED and REMANDED for re-sentencing.

ORFINGER, C.J. and SAWAYA, J., concur.

      . § 812.0145(2)(c), Fla. Stat. (2009).


text:
    James BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2839.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Escobedo v. State, 561 So.2d 429, 430 (Fla. 3d DCA 1990) (“Whatever the merits of the claim, it cannot now be considered because, when the trial judge explicitly offered the defendant a mistrial on this ground below, defense counsel just as specifically withdrew the motion. It is therefore plain that the identical contention may not now be resurrected as a basis for reversal only after the jury has returned an unwelcome verdict.”).

ORFINGER, C.J., MONACO and EVANDER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jeffrey J. HOLLOMAN, Appellee.
    No. 5D11-1008.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.
    Shannon Marie O’Brien, Assistant State Attorney, Orlando, for Appellee.
    Paula C. Coffman and Jeffrey D. Deen, Office of Criminal Conflict & Civil Regional Counsel, Orlando, for Appellee.
   PER CURIAM.

The State of Florida timely appeals the trial court’s order granting Jeffrey Hollo-man’s postconviction motion to withdraw his plea. Holloman’s motion was based upon a conflict of interest that existed when the Public Defender’s Office was representing both Holloman and the State’s witness. The State argues that although the overlap in representation created a potential conflict, Holloman failed to demonstrate that this potential conflict caused him such harm or prejudice that withdrawal of the plea is necessary to correct a manifest injustice. Because we find merit to the State’s contention, we reverse and remand for further proceedings.

On January 8, 2010, Holloman pleaded guilty to child abuse and was sentenced to a downward departure sentence of four years probation. One year after sentencing, Holloman filed a motion to withdraw his plea based upon the fact that there was a conflict of interest as the Public Defender’s Office represented both Holloman and the victim’s mother, Wendy Nicole Sauls, a primary witness for the State. The conflict apparently occurred when the Public Defender’s office represented Holloman from October 10, 2009, to January 10, 2010, and represented Sauls in an unrelated case from October 2, 2009, through November 24, 2009. The trial court held a hearing on Holloman’s motion; however, it was not an evidentiary hearing and it merely consisted of arguments of counsel and a proffer. After the hearing, the trial court concluded that although a manifest injustice was not apparent, the failure to apprise the court of the conflict and obtain a record waiver from Holloman was a fatal flaw requiring that the plea withdrawal be permitted.

In order to withdraw a plea “after a sentence is imposed, the burden is on the defendant to prove that a manifest injustice has occurred[.]”. LeDuc v. State, 415 So.2d 721, 722 (Fla.1982); see also Miller v. State, 814 So.2d 1131, 1132 (Fla. 5th DCA 2002) (“[T]he standard applicable to cases in which a defendant seeks to withdraw a plea after sentencing” is that the “withdrawal of the plea is necessary to correct a manifest injustice.” (citing Williams v. State, 316 So.2d 267 (Fla. 1975))). A manifest injustice may be demonstrated where the defendant proves he was denied the effective assistance of counsel. Woodall v. State, 39 So.3d 419, 421 (Fla. 5th DCA 2010) (citing Williams v. State, 316 So.2d 267, 273-74 (Fla.1975)). When a defendant claims ineffective assistance based on conflict of interest, a presumption of prejudice exists “if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” Alessi v. State, 969 So.2d 430, 435 (Fla. 5th DCA 2007) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The problem in this case is that there was no evidentiary hearing and, as a result, it is unclear whether Holloman’s counsel was actually aware of the conflict and whether it adversely affected the lawyer’s performance. Further, there was no other proof of prejudice rising to the level of a manifest injustice, particularly in light of the fact that Holloman received a favorable plea agreement. Accordingly, the order of the trial court is reversed and the matter is remanded to the trial court to conduct an evidentiary hearing for a determination as to whether trial counsel was aware of the conflict of interest and whether the conflict itself adversely affected the lawyer’s performance in his representation of Holloman.

REVERSED and REMANDED with instructions.

MONACO, EVANDER and JACOBUS, JJ., concur.


text:
    Kimberly VANDYKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1982.
    District Court of Appeal of Florida, Fifth District.
    Dec. 28, 2011.
    Kimberly J. Vandyke, St. Petersburg, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kimberly VanDyke appeals the trial court’s order denying her motion to correct her sentence, filed pursuant to Florida Rule of Criminal Procedure 8.800(a). We affirm.

In her motion, VanDyke asserted that her sentence was illegal because it failed to comport with section 775.082(10), Florida Statutes (2009). Specifically, VanDyke relies on the fact that, although she scored only 19.9 points on her sentencing guidelines scoresheet, the trial court imposed a state prison sentence without setting forth a written finding that a non-prison sentence could present a danger to the public. This claim is not cognizable under rule 3.800(a) because it does not involve an illegal sentence.

As the First District recently recognized, section 775.082(10)’s requirement of providing written findings to impose a prison sentence is similar to the former sentencing guidelines’ requirement of providing written findings to impose an upward departure sentence. Jones v. State, 71 So.3d 173, 175 (Fla. 1st DCA 2011). Regarding the latter, a trial court’s upward departure without written findings resulted in an improper, but not illegal, sentence. Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), receded from on other grounds, Mack v. State, 823 So.2d 746, 748-49 (Fla.2002). Accord Wright v. State, 911 So.2d 81 (Fla.2005); Maddox v. State, 760 So.2d 89, 107-08 (Fla.2000); Wighard v. State, 34 So.3d 782 (Fla. 5th DCA 2010); Godwin v. State, 679 So.2d 362 (Fla. 5th DCA 1996). Likewise, a trial court’s imposition of a prison sentence without the written findings required by section 775.082(10) does not result in an illegal sentence. In so ruling, we recognize that the First District recently analyzed a section 775.082(10) violation claim under rule 3.800(a) on the merits in Hutto v. State, 50 So.3d 85 (Fla. 1st DCA 2010); however, that decision did not address whether such a claim was cognizable under rule 3.800(a).

AFFIRMED.

GRIFFIN, PALMER and EVANDER, JJ., concur.

      . The section reads, in pertinent part:
      775.082 Penalties; Applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.—
      (10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.


text:
    Eddie Joe RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3377.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2011.
    Eddie J. Richardson, Crestview, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The order denying Richardson’s motion to correct sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), is affirmed. This is Richardson’s fourteenth pro se appearance before this Court, and he presents in his appeal a non-meritorious claim that was already adjudicated adversely to him. See Richardson v. State, 36 So.3d 114 (Fla. 5th DCA 2010).

On October 26, 2011, this Court ordered Richardson to show cause why he should not be denied further access to this Court to attack his Brevard County judgment and sentence in Case No. 05-1989-CF-10618-A. See generally State v. Spencer, 751 So.2d 47 (Fla.1999). Having carefully considered Richardson’s response, we conclude that he has provided no valid reason to be allowed continued pro se access to this Court. We hold that he is abusing the judicial process by filing frivolous motions and appeals, and that he should be barred from further pro se filings.

We prohibit Eddie Joe Richardson from filing with this Court any further pro se pleadings concerning Brevard County Case No. 05-1989-CF-10618-A. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Eddie Joe Richardson, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of available disciplinary procedures. See § 944.279(1), Fla. Stat. (2010). Rehearing will not be entertained. See Brooks v. State, 73 So.3d 853 (Fla. 5th DCA2011).

AFFIRMED; future pro se filings PROHIBITED.

ORFINGER, C.J., PALMER and COHEN, JJ., concur.


text:
    Jonathan APONTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4370.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2011.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Martinez v. State, 981 So.2d 449 (Fla.2008), and Barnes v. State, 12 So.3d 797 (Fla. 5th DCA 2009)

PALMER, MONACO, and JACOBUS, JJ., concur.


text:
    Eric Thomas POST, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-793.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2011.
    Jeffrey Deen, Regional Counsel, and Daniel Wehking, Assistant Regional Counsel, Ocala, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fay v. State, 58 So.3d 376 (Fla. 5th DCA 2011).

PALMER, MONACO and COHEN, JJ., concur.


text:
    Randall WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4372.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2011.
    Randall Whitfield, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ORFINGER, C.J., GRIFFIN and MONACO, JJ., concur.


author: SILBERMAN, Chief Judge. VILLANTI, Judge,

text:
    Anthony James HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3664.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.

      James Marion Moorman, Public Defender, and Ronald N. Toward, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Anthony James Harris appeals his convictions and sentences for robbery with a firearm and battery. Because the trial court committed fundamental error, as the State concedes, in sentencing Harris for robbery with a firearm when he was not charged with that crime in the second-amended information, we reverse his judgment and sentence for that crime.

In count one of the second-amended information, the State alleged that on January 5, 2007, Harris

by force, violence, assault or putting in fear, did attempt to take from the person or custody of Kenneth McCullough, money or other property, to wit: personal property over $300.00, with intent to either permanently or temporarily deprive Kenneth McCullough of said money or property, and in the course of committing said Robbery, [Harris] did carry a firearm; contrary to Chapter 812.13(2)(a)*777.04*777.011, Florida Statutes [ (2006).]

(Emphasis added.)

Although the charging document alleged an attempted robbery with a firearm in count one, testimony adduced at trial reflected that Harris completed the robbery with a firearm as to the victim. On count one the trial court instructed the jury on robbery with a firearm and the lesser included offenses of robbery with a weapon, robbery without a firearm or weapon, theft, and battery. The court did not give an instruction for attempted battery. The jury found Harris guilty of robbery with a firearm. At sentencing, the trial court declared Harris a habitual violent felony offender but did not sentence him as such; rather, the trial court sentenced Harris to life in prison as a prison release reoffender for robbery with a firearm.

It is a denial of due process to convict a defendant of a crime that the State has not charged. See Jaimes v. State, 51 So.3d 445, 448 (Fla.2010). The State concedes that it was fundamental error to convict Harris of robbery with a firearm when the State charged him with attempted robbery with a firearm. See id. at 451 (determining that fundamental error occurred when the defendant was convicted of aggravated battery by causing great bodily harm when the State charged the defendant -with aggravated battery with a deadly weapon). But the State disputes the remedy that Harris seeks.

Harris contends that we must reverse his conviction for robbery with a firearm and remand for a new trial. The State argues, however, that Harris is not entitled to a new trial. The State argues that, instead, this court should direct the trial court to enter a judgment for attempted robbery with a firearm pursuant to section 924.34, Florida Statutes (2011). Section 924.34 provides as follows:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

The Florida Supreme Court discussed section 924.34 in Jaimes. There, the defendant was convicted of aggravated battery by causing great bodily harm, but he was charged with aggravated battery with a deadly weapon. 51 So.3d at 447. In reversing the conviction, the supreme court stated, “Under section 924.34, Florida Statutes (2010), when an appellate court vacates a conviction but determines that the evidence establishes the defendant’s guilt as to a lesser included offense, ‘the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ... lesser included offense.’ ” 51 So.3d at 451. The supreme court directed the trial court to enter a verdict for the lesser included offense of simple battery. Id. at 452. In doing so, the supreme court recognized that “the elements of simple battery were both supported by the charging document and the proof at trial, and each element of the offense was determined by the jury beyond a reasonable doubt.” Id. (citing State v. Sigler, 967 So.2d 835, 842 (Fla.2007)). To constitutionally apply section 924.34, the jury must have found every element of the lesser offense beyond a reasonable doubt. See Sigler, 967 So.2d at 844.

Here, the State contends that although the trial court did not instruct the jury on attempted robbery with a firearm because the evidence demonstrated a completed act, the jury necessarily found Harris attempted a robbery with a firearm. The State argues that in order to commit a robbery, one must first attempt to commit a robbery. We recognize the facial logic in the State’s argument. However, a comparison of the elements of an attempt to the elements of a completed robbery shows that by finding that Harris committed the robbery, the jury could not have found all of the actual elements of an attempted robbery.

Elements of a robbery include that the defendant took property from the person or custody of the victim and that the property was of some value. See Fla. Std. Jury Instr. (Crim.) 15.1. An attempt is a category two lesser included offense of robbery. See id.; see also Wilson v. State, 635 So.2d 16, 17 (Fla.1994) (recognizing that attempts are category two lesser included offenses and that the judge should not instruct on an attempt if the evidence only supports a completed offense). In contrast to robbery, one of the elements of an attempt is as follows:

2. [He][She] would have committed the crime except that
a. [someone prevented [him][her] from committing the crime of (crime charged).]
b. [[he][she] failed.]

Fla. Std. Jury Instr. (Crim.) 5.1.

The evidence here did not support and the jury obviously did not find that someone prevented Harris from committing the robbery in count one or that he failed to commit the robbery. Therefore, the jury did not find beyond a reasonable doubt that Harris committed an attempted robbery. Cf. Allen v. State, 18 So.3d 741, 742 (Fla. 2d DCA 2009) (reversing trafficking in cocaine conviction that was based on the State’s theory that the defendant purchased cocaine and directing judgment for attempted trafficking when the evidence established the attempt but was insufficient to prove that a purchase took place). Based on the fact that the evidence did not support and the jury did not find all the elements of the lesser offense of attempted robbery with a firearm, we cannot apply section 924.34. Instead, we are constrained to reverse Harris’s judgment and sentence for robbery with a firearm because he was not charged with that crime.

Finally, Harris asserts that we should reverse and remand for a new trial. We do so but observe that the State may not be limited to proceeding on the existing charge of attempted robbery with a firearm.

Reversed and remanded for a new trial.

CASANUEVA, J., Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

I fully concur in the majority decision, but write to point out the risk Harris is taking in this case. At this point, if still available, Harris could acquiesce to the State’s proffered remedy of a conviction for the second-degree felony of attempted robbery with a firearm. Depending on what enhancements the State could prove, Harris’s maximum sentence would be thirty years in prison. However, on remand, the State may elect to amend the information to charge the completed robbery. See Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995) (holding that the State can file an amended information on remand after a judgment is reversed so long as the new charge does not violate the defendant’s double jeopardy rights). Should the State elect to file such an information, Harris will be exposed to the same mandatory life sentence he is currently serving.

      . Harris does not contest his battery conviction and sentence of time served on count two.


author: SILBERMAN, Chief Judge.

text:
    DEPARTMENT OF REVENUE, o/b/o M.J.W., Appellant, v. G.A.T., JR., Appellee.
    No. 2D10-2467.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Chief Judge.

The Department of Revenue, on behalf of M.J.W., the mother, appeals an order and amended order granting the petition of G.A.T., Jr. (G.A.T.), to disestablish paternity. The trial court granted the petition after the mother failed to produce the child, J.L.T., for DNA testing. Because the trial court did not determine whether the mother’s failure to submit the child for testing was willful, we reverse and remand for further proceedings.

Section 742.18, Florida Statutes (2008), provides for the disestablishment of paternity or the termination of a child support obligation when a male is not the biological father of a child. G.A.T. filed a petition to disestablish paternity of J.L.T. In the petition and his affidavit, G.A.T. denied that he is the father of the minor child and that fraud and duress by the mother and his own family induced him to acknowledge paternity. He further alleged that the mother has told him that he is not the biological father of the child.

The trial court subsequently entered an order for paternity testing, indicating that the parties stipulated to the administration of the paternity test. The trial court ordered the mother to have the minor child available for testing before December 31, 2009. The mother did not appear with the child at the date and time set for the paternity test.

After a hearing held on January 20, 2010, the trial court entered an order granting the petition to disestablish paternity. The order indicates that paternity was disestablished because the mother did not appear with the child for the paternity test. An amended order was entered but the amendment is not pertinent to the issue on appeal.

The Department filed a motion for rehearing and argued that the trial court failed to make the findings on the seven factors required by section 742.18(2)(a)-(g) and disestablished paternity without any evidentiary basis and solely because the mother did not appear for the paternity test. The Department also argued that after the mother failed to appear with the child for the test there was no follow-up order compelling DNA testing, although the Department requested such an order. Also, the Department asserted that no motion for sanctions was argued or granted and no motion for default was made on the petition to disestablish paternity. The trial court denied the motion for rehearing on the basis that the mother failed to appear.

On appeal, the Department contends that the trial court did not require G.A.T. to meet his statutory burden of proving the factors set forth in section 742.18(2)(a)-(g) before granting the petition to disestablish paternity. The statute provides that the court shall grant relief on the petition “upon a finding by the court of all of the following” factors listed in that section. § 742.18(2). We note that the factor in section 742.18(2)(b) is that “[t]he scientific test required in paragraph (l)(b) was properly conducted.” The Department also argues that the trial court never provided the mother an opportunity to explain her non-appearance with her child for the DNA test.

This court has recognized that the trial “court may not set aside paternity if the ‘father’ signed a paternity acknowledgment form unless the court determines that all factors listed in section 742.18(2) existed.” Dep’t of Revenue ex reí. T.E.P. v. Price, 958 So.2d 1045, 1046 (Fla. 2d DCA 2007). However, section 742.18(7)(b) provides for the situation when a party fails to appear for scientific testing.

(b) If the male ordered to pay child support willfully fails to submit to scientific testing or if the mother or legal guardian or custodian of the child willfully fails to submit the child for testing, the court shall issue an order determining the relief on the petition against the party so failing to submit to scientific testing. If a party shows good cause for failing to submit to testing, such failure shall not be considered willful.

§ 742.18(7)(b). Thus, the statute provides that the court shall rule against the party failing to submit for testing if the failure to submit to testing was willful.

Here, it is unknown whether the mother’s failure to submit the child for testing was willful. Therefore, we reverse the order and amended order granting the petition to disestablish paternity and remand for the trial court to give the mother an opportunity to show good cause and for the trial court to determine whether the mother’s failure to submit the child for testing was willful before it rules on the petition.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Tajhon Roderick WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-215.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.

      James Marion Moorman, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Tajhon Boderick Wilson appeals his conviction for robbery with a firearm. Because we conclude that the trial court erred by failing to renew an offer of assistance of counsel at the commencement of Wilson’s trial, we reverse Wilson’s judgment and sentence and remand for further proceedings.

Before Wilson’s trial began in January 2010, the trial court conducted numerous pretrial hearings from July 2009 to December 2009. At the September 11, 2009, pretrial hearing, Wilson expressed that he wanted to represent himself. Accordingly, the trial court conducted a detailed Faret-ta inquiry pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), addressing the advantages of having a court-appointed counsel. Nonetheless, Wilson decided that he would proceed pro se, and the trial court appointed him standby counsel. The trial court conducted another brief Faretta colloquy at a December 8, 2009, status hearing on Wilson’s pending motion to suppress, and Wilson again elected to represent himself.

The trial court subsequently conducted the suppression hearings on December 11 and December 14, and reserved ruling on the motion until the start of trial. On the morning of Wilson’s trial on January 4, the trial court conducted a final pretrial hearing outside of Wilson’s presence in which it formally denied the motion to suppress. The trial court instructed that Wilson, who was in the process of being transferred to a different courtroom before a different judge for trial, be provided with its written order of denial. Wilson’s nonappearance at this hearing made it impossible for the trial court to determine if he wanted to continue to proceed pro se.

Once Wilson arrived in the other courtroom and learned that his motion had been denied, he raised several ore tenus motions before the new judge, including a motion to continue the trial by waiving his right to a speedy trial. However, the trial court summarily denied all of Wilson’s motions, and, like the judge before him, did so without renewing an offer of assistance of counsel in accordance with Florida Rule of Criminal Procedure 3.111(d)(5). Rather the case proceeded to trial, and a jury found Wilson guilty as charged. The trial court did not conduct another Faretta inquiry until the beginning of Wilson’s sentencing hearing.

I. The Standard of Review

The Counsel Clause of the Florida Constitution under article I, section 16 recognizes the right to counsel and self-representation in all criminal prosecutions. See Traylor v. State, 596 So.2d 957, 966-67 (Fla.1992); Brown v. State, 45 So.3d 110, 115 (Fla. 1st DCA 2010). The supreme court went on in Traylor to explain that:

Once the defendant is charged — and the Section 16 rights attach — the defendant is entitled to decide at each crucial stage of the proceedings whether he or she requires the assistance of counsel. At the commencement of each such stage, an unrepresented defendant must be informed of the right to counsel and the consequences of waiver. Any waiver of this right must be knowing, intelligent, and voluntary, and courts generally will indulge every reasonable presumption against waiver of this fundamental right. Where the right to counsel has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.

596 So.2d at 968 (footnotes omitted).

Rule 3.111(d)(5) mirrors the intent of section 16 and the language in Traylor by providing that “[i]f a waiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” A subsequent or crucial stage “is any stage that may significantly affect the outcome of the proceedings.” Traylor, 596 So.2d at 968. The need to renew an offer of assistance of counsel depends on whether intervening crucial stages occur after the initial offer, not the passage of time between the initial offer and a subsequent crucial stage. See Monte v. State, 51 So.3d 1196, 1200 (Fla. 4th DCA), review granted, 68 So.3d 235 (Fla.2011). The start of trial is considered to be a crucial stage of the proceedings under rule 3.111(d)(5). See Pall v. State, 632 So.2d 1084, 1084 (Fla. 2d DCA 1994); Bloodsaw v. State, 949 So.2d 1119, 1122 (Fla. 3d DCA 2007); Lamb v. State, 535 So.2d 698, 698-99 (Fla. 1st DCA 1988).

The State concedes that the trial court did not provide the requisite Faretta inquiry before Wilson’s trial commenced, but it requests that this court apply the harmless error analysis utilized in Blood-saw, 949 So.2d at 1122. The State emphasizes that Wilson’s apparent intent to represent himself, coupled with the court’s appointment and involvement of standby counsel in all the proceedings, demonstrates that the trial court’s error did not contribute to his conviction. We disagree. A trial court’s failure to conduct a Faretta hearing at a critical stage of the criminal proceedings constitutes per se reversible error. See Tennis v. State, 997 So.2d 375, 379 (Fla.2008); Davis v. State, 10 So.3d 176, 178 (Fla. 5th DCA 2009); Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA 2008); Wilson v. State, 947 So.2d 1225, 1226-27 (Fla. 1st DCA 2007). Accordingly, we must determine whether the commencement of Wilson’s trial in this instance should be regarded as a crucial stage of the proceedings requiring the renewal of the offer of assistance of counsel under rule 3.111(d)(5).

II. Discussion

The beginning of the “trial” in the context of rule 3.111(d)(5) may not be the actual start of trial, but the start of the trial stage. See McCarthy v. State, 731 So.2d 778, 780 (Fla. 4th DCA 1999) (concluding a pretrial hearing was the “commencement of the trial stage of the proceedings, since it addressed McCarthy’s ability to competently handle the mechanics of the trial process on his own”); Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988) (holding a pretrial hearing on the waiver of counsel conducted three weeks before trial was the start of the trial stage where there were no changes between the pretrial hearing and the trial). The trial stage does not necessarily commence when there are intervening proceedings conducted after the most recent Faretta inquiry. In Sproule v. State, 719 So.2d 349, 350 (Fla. 4th DCA 1998), the Fourth District determined that the renewal of an offer of counsel was necessary at the start of Sproule’s trial after a calendar call and a hearing on his petition for writ of habeas corpus and motion alleging the denial of access to the law library had occurred after the last Faretta inquiry. Yet in Monte, 51 So.3d at 1200, the Fourth District held that an intervening hearing on Monte’s motion to compel discovery, demand for speedy trial, and motion for standby counsel did not invalidate an earlier Faretta inquiry because the motions did not present anything of legal substance. Even so, the Fourth District also noted that Monte indicated at the commencement of trial that he was still prepared to proceed pro se, the trial court administered a brief colloquy, and the trial court found that he still intelligently and voluntarily waived his right to counsel. Monte, 51 So.3d at 1200-01. Hence, it appears that a court’s determination of whether an intervening proceeding significantly affects the validity of a prior Faretta inquiry is made on a case-by-case basis.

We conclude that the trial court’s hearing on, and subsequent denial of, Wilson’s suppression motion qualified as an intervening proceeding requiring the trial court to conduct another Faretta inquiry. A hearing on a motion to suppress is in and of itself a crucial stage of the proceedings. See State v. Sigerson, 282 So.2d 649, 651 (Fla. 2d DCA 1973); Kearse v. State, 858 So.2d 348, 349 (Fla. 1st DCA 2003). Thus it follows that the trial court was required to renew the offer of assistance of counsel at the next crucial stage — when Wilson’s trial commenced three weeks later. See Stinnett v. State, 576 So.2d 927, 928-29 (Fla. 5th DCA 1991). This was not a case where Wilson was using Faretta “as a device to abuse the dignity of the court or to frustrate orderly proceedings.” Jones v. State, 449 So.2d 253, 257 (Fla. 1984). The trial court simply failed to make any inquiry in accordance with rule 3.111(d)(5) about Wilson’s right to represent himself, and we hold that the failure to do so constituted per se reversible error.

Reversed and remanded for further proceedings.

SILBERMAN, C.J., and WHATLEY, J., Concur.

      . Our resolution on this issue renders Wilson's remaining issues on appeal moot.


author: RAMIREZ, J.

text:
    AMERICAN SAFETY CASUALTY INSURANCE COMPANY, Appellant, v. MIJARES HOLDING COMPANY, LLC, et al., Appellees.
    No. 3D10-3150.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.

      Kubicki Draper and Caryn L. Bellus, Miami, and Christopher J. Bailey, for appellant.
    Aran Correa Guarch & Shapiro and Craig B. Shapiro, Coral Gables; and Hunter, Williams & Lynch and Christopher Lynch, Miami, for appellees.
    Before RAMIREZ and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   On motion for rehearing

RAMIREZ, J.

We deny the appellee’s motion for rehearing, but substitute the following opinion for our original opinion.

American Safety Casualty Insurance Company appeals from an order denying its motion to dismiss on the basis of improper venue. We reverse because the two insurance contracts which form the basis of the claims against American contain mandatory and enforceable Georgia forum selection clauses. The trial court erred when applying a limited exception to the well-settled rule under Florida law of enforcing mandatory forum selection clauses.

Appellee Mijares Holding Company, LLC is a Florida company which conducts business in Miami-Dade County. Mijares owns Bulk Express Transport Inc., which provides specialty trucking services within this state. In 2004, Mijares purchased commercial motor vehicle liability insurance from American and allegedly co-defendant Odyssey American Reinsurance Corporation.

In July 2007, during the 2007-2008 coverage period, a Bulk Express Transport vehicle was involved in an accident. Mi-jares allegedly settled the resulting personal injury claims with the consent and knowledge of both American and Odyssey. Despite the accident and resulting settlement, Mijares signed another release form with American in 2008. According to American, in executing the 2008 release, Mijares acknowledged in writing that it had reported no claims during the 2007-2008 policy period and agreed to indemnify American for any claims which it could have reported during that same period.

Mijares subsequently sought reimbursement from American and Odyssey. Mi-jares alleges that both carriers rejected its reimbursement claim on the $1 million settlement. Mijares sued and brought a total of ten counts against American and Odyssey. The counts against American included: count I, rescission of the American policies; count II, declaratory judgment against American (seeking a declaration that the American policies are void as against Florida public policy); and count VI, breach of contract against American.

American moved to dismiss, asserting that Georgia was the proper venue for any claims relating to the rights and obligations of the insurance policy. American’s motion was based on section III of the Coverage Form for the 2007-2008 American policy agreement, in which American alleged Mijares specifically and expressly agreed that the Superior Court of Cobb County, Georgia “shall have jurisdiction and venue” in determining the parties’ respective rights and obligations under the agreement. The trial court denied American’s motion to dismiss.

The interpretation of a contractual forum selection clause is a question of law, such that our standard of review is de novo. See Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009); Weisser v. PNC Bank, N.A., 967 So.2d 327, 330 (Fla. 3d DCA 2007).

The trial court erred when it denied American’s motion to dismiss, which sought to enforce a venue selection clause. Florida courts have long recognized that “[f]orum selection clauses are presumptively valid.” Corsee, S.L. v. VMC Int’l Franchising, LLC, 909 So.2d 945, 947 (Fla. 3d DCA 2005). They “provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.” Manrique v. Fabbri, 493 So.2d 437, 439 (Fla.1986). Forum selection clauses reduce litigation over venue, thereby conserving judicial resources, reducing business expenses, and lowering consumer prices. See America Online, Inc. v. Booker, 781 So.2d 423, 425 (Fla. 3d DCA 2001).

Florida law presumes that the forum selection clauses in contracts are valid and enforceable, and a party seeking to avoid enforcement of such a clause must establish that enforcement would be unjust or unreasonable. See Corsee, 909 So.2d at 947; see also Manrique, 493 So.2d at 440, n. 4. The enforcement is unreasonable and unfair only when the designated forum amounts to “no forum at all.” Corsee, 909 So.2d at 947. Mijares has not shown that the forum selection clause is unreasonable or unjust. Mijares freely bargained for and contracted with American with full knowledge of this forum selection clause.

“The polestar guiding the court in the construction of a written contract is the intent of the parties, and where the language used is clear and unambiguous the parties’ intent must be garnered from that language[.]” TECO Barge Line, Inc. v. Hagan, 15 So.3d 863, 865 (Fla. 2d DCA 2009) (quoting Bombardier Capital, Inc., v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001)). The 2007-2008 policy states, “the Named Insured ... agrees that such court shall have jurisdiction and venue for the purposes of determining all rights and obligations under this agreement.” This language is clear and unambiguous. See Weisser, 967 So.2d at 330. In addition, Mijares conceded that the clause in the 2008 release was clear and mandatory.

Mijares asserts that litigation in Georgia might produce results inconsistent with the litigation remaining in Miami and that this constitutes a compelling reason to keep the litigation in Miami. While we agree that inconsistent and simultaneous interstate litigation is an applicable compelling reason, see McWane, Inc. v. Water Mgmt. Servs., Inc., 967 So.2d 1006 (Fla. 1st DCA 2007), we do not agree it applies in this case to override Florida law’s presumption in favor of enforcing forum selection clauses. Mijares’ arguments regarding the possible impractical or inconsistent litigation it may have to pursue against other defendants who need not litigate in Georgia, do not overcome the certainty that Mijares freely agreed to the mandatory forum selection clause as to its claims against American. See, e.g., Taurus Stornoway Invs., LLC v. Kerley, 38 So.3d 840, 842-43 (Fla. 1st DCA 2010). Under Florida law, the presumption is in favor of enforcing party’s choice to select jurisdiction before another sovereign’s courts, in this case Georgia, through a forum selection clause. See Manrique, 493 So.2d at 440. The hypothetical risk of inconsistent outcomes, based upon a case involving other defendants, does not support depriving American of the benefits of a valid forum selection clause. See Taurus Stornoway Invs., 38 So.3d at 843; Booker, 781 So.2d at 424-25. The primary forum for litigating American’s liability will be Georgia, as was intended by the parties in entering into the forum selection clause.

In a similar argument, Mijares also asserts that, by litigating in both Florida and Georgia, it would be forced to split its causes of action against American because Mijares will be required to litigate similar issues in two forums. According to Mi-jares, this is because the Georgia forum selection clauses do not govern two of its three claims against American. Mijares concedes, however, that the clauses apply to the third claim, breach of contract, because they govern all suits seeking to enforce or interpret the contracts. These other two claims relate to the validity of the entire contract, and thus must be submitted to the forum chosen by the parties in the contract. Bovis Homes, Inc. v. Chmielewski, 827 So.2d 1038, 1039 (Fla. 2d DCA 2002) (“We further conclude ... that the mandatory venue selection provision of the contract applies to the Chmielweskis’ fraudulent misrepresentation claim as well.”); Business Aide Computers, Inc. v. Cent. Fla. Mack Trucks, Inc., 432 So.2d 681, 682 (Fla. 5th DCA 1983) (finding forum selection clause applied to an action to rescind the contract). Consequently, there is no need for splitting the causes of action against American.

We therefore reverse and remand with directions to dismiss American from this action because the forum selection clause expressly stipulates that jurisdiction be had in Cobb County, Georgia.

Reversed and remanded with directions.


author: SUAREZ, J. ROTHENBERG, J.

text:
    C.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1591.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.

      Carlos J. Martinez, Public Defender, and Howard Blumberg, Public Defender, and Courtney A. Deblis and Kathryn M. Winkler, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, and Jeffrey H. Siegal, Certified Legal Intern, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   SUAREZ, J.

C.W., a juvenile, appeals from an order denying his motion for judgment of dismissal and adjudication of delinquency. We reverse, and remand with instructions to discharge the adjudication of delinquency.

C.W. was initially charged with disorderly conduct and resisting arrest without violence. The underlying basis for the arrest was the alleged disorderly conduct, which in turn arose from an uncharged violation of section 316.2045, Florida Statutes (2010), a pedestrian infraction for obstructing traffic. The uncharged traffic obstruction offense was premised upon appellant’s act of standing in the road, a couple of feet from the swale, and refusing to move off of the street when the officer asked him to, although the record also shows that there was no traffic on the street at the time. The record does reveal that C.W. was talking to another boy, his cousin, when they saw the police car slowly approaching. The officers veered slightly around the kids, and asked them to move out of the roadway. When they did not, the officers parked, approached the boys and ordered them to move out of the road and onto the unpaved swale. At this point, the record shows that C.W. refused to step out of the street and used profanity. The officers then arrested him.

The record does not show that C.W. was ever given a citation for the pedestrian violation and it is not cited as a basis for the arrest. The Petition for Delinquency only states that C.W. failed “to follow the order of said officer to get out of the street where traffic was moving....” Although he was arrested for disorderly conduct, neither the record nor the Petition for Delinquency show that C.W. was prosecuted for disorderly conduct. The only charge for which Appellant was adjudicated delinquent was the charge of resisting an officer without violence in violation of section 843.02, Florida Statutes (2007).

To convict a defendant of obstructing or resisting an officer without violence, the State must prove two elements: (1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s action constituted obstruction or resistance of that lawful duty. J.P. v. State, 855 So.2d 1262, 1265-66 (Fla. 4th DCA 2003); Jay v. State, 731 So.2d 774 (Fla. 4th DCA 1999). The State fails to sustain either element.

The evidence does not support a conclusion that the officers were engaged in the lawful execution of a legal duty with their initial request that C.W. step out of the street. The case law provides that “legal duties” include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a “lookout” during the commission of a criminal act. See, e.g., Davis v. State 973 So.2d 1277 (Fla. 2d DCA 2008); Jay, 731 So.2d at 775; Porter v. State, 582 So.2d 41, 42 (Fla. 4th DCA 1991). Although this is not an exhaustive list, it is clear that there is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. See, e.g., Jay, 731 So.2d at 776; D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995). The officers’ initial request that C.W. move a de minimus distance out of the road was a reasonable part of their job as community safety officers. But the officers had no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this. See KA. v. State, 12 So.3d 869 (Fla. 4th DCA 2009) (holding that there was no evidence of trespass sufficient to sustain charge of resisting arrest). Here, there is no evidence that C.W. actually interfered with traffic, and the mere potential to interfere with traffic is insufficient to justify the officers’ actions. Cf. Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001) (holding that an officer lacked probable cause to stop the defendant for obstruction of traffic because there was no evidence that the defendant actually hindered or endangered the normal use of the street or had the intent to do so).

Moreover, in evaluating a citizen’s verbal response to a police officer, it is understandable that a police officer in good faith may see an obstruction where another citizen sees an appropriate protest. D.G. v. State, 661 So.2d at 75; see L.A.T. v. State, 650 So.2d 214 (Fla. 3d DCA 1995). “If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction.” D.G., 661 So.2d at 76. The fact that the incident may have attracted the attention of onlookers, without more, is insufficient to support a charge of disorderly conduct. See Fields v. State, 24 So.3d 646 (Fla. 3d DCA 2009); K.S. v. State, 697 So.2d 1275 (Fla. 3d DCA 1997). The record facts in C.W.’s case do not support a finding of disorderly conduct or obstruction of a legal duty.

“If an arrest is not lawful, then a defendant cannot be guilty of resisting it ... the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.” Jay, 731 So.2d at 775. We therefore reverse the order denying C.W.’s motion for judgment of dismissal, and remand with instructions to dismiss the adjudication of delinquency and to correct the juvenile’s post-adjudication records accordingly.

Reversed and remanded.

LAGOA, J., concurs.

ROTHENBERG, J.

(dissenting).

C.W. was adjudicated delinquent after an adjudicatory hearing for the offense of resisting an officer without violence in violation of section 843.02, Florida Statutes (2010), based on his refusal to follow the police officers’ lawful order to move out of the street and his subsequent resistance during his arrest. Because the arresting officers observed C.W. committing a pedestrian violation, obstruction of a public street or road in violation of section 316.2045, Florida Statutes (2010), the officers were engaged in the lawful execution of their legal duty — to enforce the traffic laws of this state — when they ordered C.W. to step out of the street. When C.W. repeatedly refused to move out of the street, became belligerent and began cursing at the officers, causing a crowd to form, the officers had probable cause to arrest C.W. for resisting an officer without violence. Thus, the trial court’s order denying C.W.’s motion for judgment of dismissal and adjudicating C.W. delinquent should be affirmed.

The record reveals that C.W. wanted to ride his ripstick on the street because the sidewalk was unpaved gravel and therefore, unfit for such activity. When Officers Leonardo Sosa and Kermain Kerlus, who were riding in one marked police vehicle, and another officer in a separate marked unit drove past C.W., C.W. and his cousin were standing in the roadway talking. C.W. and his cousin were far enough into the roadway, approximately one-and-a-half to two feet, that the officers had to maneuver around them to avoid hitting them. As Officers Sosa and Kerlus drove around C.W. and his cousin, they instructed them to move out of the roadway. When C.W. did not comply, the officers stopped and exited their vehicle, approached C.W. and his cousin, and instructed them to move out of the roadway. C.W. continued to disobey the officers’ lawful commands, became belligerent and began yelling and cursing at the officers, causing a crowd to gather. When neither the officers nor C.W.’s cousin were able to calm C.W. down or get him to follow the officers’ instructions, C.W. was arrested.

Section 843.02, the resisting without violence statute, provides, in pertinent part, that “[w]hoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....” To support a conviction for violation of section 848.02 for obstruction without violence, the State must prove: “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). C.W.’s refusal to obey the officers’ orders to step out of the roadway, while yelling and cursing at the officers, causing a crowd to gather, clearly constitutes “obstruction,” and thus satisfies the second element. The issue in this appeal is whether the officers were engaged in the lawful execution of a legal duty when they ordered C.W. to step out of the roadway.

THE OFFICERS WERE ENGAGED IN THE LAWFUL EXECUTION OF A LEGAL DUTY

Contrary to the majority opinion, the officers were engaged in the lawful execution of a legal duty: to enforce the traffic laws of this state. Also contrary to the majority opinion, which premises its reversal on its incorrect supposition that “there is no evidence that C.W. actually interfered with traffic,” there was evidence presented that C.W. was standing in the roadway actually interfering with traffic and, therefore, was violating the law, which is what precipitated law enforcement’s interaction with C.W. The specific law C.W. was violating was section 316.2045.

Section 316.2045(1), titled “Obstruction of public streets, highways, and roads,” provides as follows:

It is unlawful for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon; and any person or persons who violate the provisions of this subsection, upon conviction, shall be cited for a pedestrian violation, punishable as provided in Chapter 318.

Despite, the majority’s contrary conclusion, the record clearly reflects that C.W. violated section 316.2045(1). It is undisputed that C.W. was standing in the roadway, obstructing “the free, convenient and normal use” of that roadway by “impeding, hindering, stifling, retarding, or restraining traffic or passage thereon.” § 316.2045(1). Officer Sosa testified:

A: They were blocking the flow of traffic.
Q: When you first pulled up and you saw Mm in the roadway, did you have to move your car to avoid hitting him? A: Yes, yes. I had to move.
Q: Is that why you initially asked him to move?
A: Yes.
Q: But when you initially approached did you have to divert your car?
A: Yes, correct.
Q: Was he far enough into the road that if other cars were to come they would have to divert their cars?
A: Yes.
Q: Did other cars eventually come?
A: Yes
Q: Where they were driving, would they have had to divert from, to avoid hitting him?
A: Yes.

Officer Kerlus’ testimony was consistent with Officer Sosa’s testimony, and C.W., who testified, did not dispute this testimony. Thus, the basis for the majority’s reversal, that the officers were not engaged in the lawful execution of a legal duty because “there is no evidence that C.W. actually interfered with traffic, and the mere potential to interfere with traffic is insufficient to justify the officers’ actions,” disregards and is contrary to the evidence presented.

The majority’s reliance on Underwood v. State, 801 So.2d 200 (Fla. 4th DCA 2001), is also misplaced. In Underwood, the Fourth District held that the officer lacked probable cause to stop the defendant for obstruction of traffic because there was no evidence that the defendant actually hindered or endangered the normal use of the roadway. Id. at 202. The evidence in Underwood was that “[a]s soon as the officer’s vehicle approached, appellant moved forward, allowing the officer to continue his travel along the street without having to stop or drive around appellant’s vehicle.” Id. at 203. Unlike Underwood, the evidence in this case is that C.W. actually obstructed the “free, convenient, and normal use” of the roadway “by impeding, hindering, stifling, retarding, or restraining traffic” because the officers in two separate vehicles had to swerve around C.W. to avoid hitting him. C.W.’s obstruction was also willful because he refused to move out of the roadway, and the officers testified that additional traffic, which appeared after C.W. was forcibly removed from the roadway, would have been equally impeded by C.W.’s refusal to move.

The majority relies on Underwood, which has no application in this case, and fails to mention Reid v. State, 898 So.2d 248 (Fla. 4th DCA 2005), a case in which the Fourth District distinguished its holding in Underwood, and which is applicable to the facts in the instant case. In Reid, the Fourth District stated the following: Reid, 898 So.2d at 249. Thus, as the Fourth District makes clear, where the defendant’s willful conduct impedes the normal flow of traffic and causes a vehicle to drive around him or his vehicle, he is guilty of obstruction pursuant to section 316.2045. Because: (1) the evidence is uncontroverted that C.W.’s conduct— standing in the roadway — impeded the normal flow of traffic and caused at least two vehicles to drive around C.W. to avoid hitting him; and (2) the officers were engaged in the lawful execution of their legal duty — enforcing the traffic laws of this state — when they ordered C.W. to step out of the roadway, the officers possessed probable cause to arrest C.W. when he refused to obey their lawful command.

The trial court properly determined that appellant’s conduct in parking his vehicle in the roadway near an intersection and causing another vehicle to drive around appellant’s vehicle provided probable cause for the traffic stop. The facts in this case show an intent to impede or hinder the free flow of traffic, thus distinguishing this case from Underwood v. State, 801 So.2d 200 (Fla. 4th DCA 2001) (holding that the arresting officer did not have probable cause to stop the defendant for obstructing traffic because there was no evidence of intent to impede or hinder traffic where the vehicle was only briefly stopped in the roadway and the officer approaching the vehicle from behind did not have to stop or drive around the defendant’s vehicle).

C.W.’S REFUSAL TO OBEY LAW ENFORCEMENT’S LAWFUL COMMAND

C.W.’s refusal to obey the lawful order to move out of the roadway clearly constituted “obstruction,” thus also satisfying the second element of section 843.02. As this Court noted in N.H. v. State, 890 So.2d 514, 516 (Fla. 3d DCA 2005), “[section 843.02] is unambiguous. It is intended to apply to any situation where a person willfully interferes with the lawful activities of the police. Nothing indicates that it applies only when police are arresting a suspect, nor does the case law support such a narrow construction of the statute.”

In N.H., this Court upheld the adjudication of delinquency for resisting an officer without violence on facts similar to the instant case. While investigating a “ ‘loud yell’ emanating from a female voice in the school parking lot,” N.H. became agitated, cursed at the officers, and was otherwise disruptive, and refused to identify himself, sit down, or answer any other questions. Id. at 515. The fact that the police did not have probable cause to arrest N.H. at the time he was initially “stopped” was found to be of no consequence because the officers were engaged in the lawful exercise of a legal duty at the time he resisted or obstructed their efforts. Id. at 517.

Similarly, in K.A.C. v. State, 707 So.2d 1175, 1177 (Fla. 3d DCA 1998), this Court found that because law enforcement saw K.A.C., who appeared to be of school age, walking away from a school, and they had a legal duty to determine if K.A.C. was truant, and if so, to transport him to school, K.A.C. was under a legal obligation to answer the officers’ questions. Because K.A.C. refused to provide information or answer their questions, this Court found that there was sufficient evidence to support K.A.C.’s adjudication of delinquency for the offense of resisting an officer without violence.

Even more on point is J.M. v. State, 960 So.2d 813, 815 (Fla. 3d DCA 2007), where this Court noted that “inaction can constitute interference under section 843.02.” In J.M., the officers attempted to disperse a crowd which had formed in a park to watch a fight between two girls. Although the officers repeatedly ordered the crowd to leave, J.M.’s brother refused to leave and he was arrested. When J.M. also failed to comply, he too was arrested for resisting an officer without violence. This Court affirmed, finding that J.M.’s presence in the park after orders to leave was sufficient to support an adjudication of the charge. Id.; see also Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir.2008) (finding that the deputies were lawfully executing their legal duty by informing Zivojinovich that he was not allowed on the Ritz’s Carlton’s property, ordering him to sit down while they issued him a warning, and escorting Zivojinovich off the property; holding that because Zivojinovich disobeyed the deputies’ commands to sit down, the deputies had probable cause to arrest Zivojinovich for resisting an officer without violence); P.B. v. State, 899 So.2d 480, 482 (Fla. 3d DCA 2005) (finding juvenile resisted an officer without violence by not stopping when ordered to do so by an officer trying to conduct an investigation); H.A.P. v. State, 834 So.2d 237, 239 (Fla. 3d DCA 2002) (holding that juvenile resisted an officer without violence by refusing to leave an area where the SWAT team was conducting a search); Simeon v. State, 778 So.2d 455, 455 (Fla. 4th DCA 2001) (providing false information to non-arresting officer sufficient to support a violation of section 843.02).

CONCLUSION

The arresting officers observed C.W. committing a violation of section 316.2045 by standing in the roadway obstructing the normal flow of traffic. His conduct was willful because when he was asked to move off of the roadway, he refused to do so. The officers, who have a duty to protect the public and enforce the law, were engaged in the lawful execution of that duty when they exited their vehicles and repeatedly ordered C.W. to move out of the roadway. When C.W. refused to comply with the officers’ lawful orders, the officers properly arrested him for resisting an officer without violence pursuant to section 843.02. Thus, the trial court did not err in adjudicating C.W. delinquent as to that charge, and that finding must be affirmed.

      . In juvenile proceedings, a motion for judgment of acquittal is actually referred to as a motion for judgment of dismissal. See Fla. R. Juv. P. 8.110(k). However, the same de novo standard of review that applies to a motion for judgment of acquittal applies to a motion for judgment of dismissal because the motion tests the legal sufficiency of the state’s evidence. See A.A.R. v. State, 926 So.2d 463, 465 (Fla. 4th DCA 2006).

      . C.W. was arrested on March 18, 2010; the docket for this date shows him as charged only with disorderly conduct and resisting arrest without violence. The sole charge that appears in the March 19, 2010, Petition for Delinquency, however, is that of resisting arrest without violence.

      . This contradicts later testimony from both officers and C.W., all of whom consistently testified that there was no traffic on the road until after C.W. had been arrested.

      . There was no charge of disorderly conduct cited or referenced in the March 19, 2010, Petition for Delinquency. Although the Petition for Delinquency does not show a charge for disorderly conduct, the docket and the post-adjudication documents still erroneously show the unprosecuted disorderly conduct charge.

      . Section 843.02 states in pertinent part that: Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) ... or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      .Q. Okay. It may be obvious, but one question. Why did you initially tell him [the defendant] to get off the road?”
      A. [Officer Kurless]: Well for his safety, because cars be [sic] coming down the road and he could get hit, so we just told him to kind of step off to the side of the road.”