author: EMAS, J.

text:
    J.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2880.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   EMAS, J.

J.W. appeals an order withholding adjudication of delinquency and placing him on probation for the delinquent offenses of possession with intent to distribute cocaine and resisting an officer without violence. J.W. contends the trial court erred in 1) denying his motion to suppress the evidence discovered in a search where the State did not prove abandonment by clear, unequivocal and decisive evidence, and 2) denying his motions for judgment of dismissal on the charge of resisting an officer without violence, contending that the officer and J.W. were engaged in a consensual encounter and J.W. had the right to ignore the police officer’s order and to leave the scene. We affirm the trial court’s denial of the motion to suppress, but reverse the trial court’s denial of the motion for judgment of dismissal on the charge of resisting an officer without violence. We also affirm the State’s cross-appeal on the latter issue.

THE MOTION TO SUPPRESS

J.W. was charged with possession of cocaine with intent to sell, and resisting an officer without violence. Prior to the start of the adjudicatory hearing on these charges, the court held an evidentiary hearing on J.W.’s motion to suppress. Officer Wing was the only witness to testify at the hearing. He testified that on March 23, 2010, he did a “drive-by” of a location where three young males were allegedly involved in narcotics sales. As he drove by, Officer Wing observed J.W. walk briskly into the front yard of a house and hand a black pouch, resembling a sunglass case, to another individual, later identified as Mr. Locke. Mr. Locke then placed the pouch underneath the platform-raised house. The pouch was not tossed or thrown underneath the house. Officer Wing exited the police car as the pouch was being placed under the house. He asked J.W. and Mr. Locke to sit down on the porch. Though the two initially complied with Officer Wing’s instructions, J.W. subsequently stood up, walked to the front door, opened it and attempted to go into the house. Officer Wing ordered J.W. to sit back down and held the front door as J.W. tried to slam it shut. An occupant of the house tried to deny entrance to J.W. Officer Wing grabbed J.W. by the shirt and pulled him out of the house, and handed him off to a second officer on the scene. Officer Wing then seized the black pouch from under the house and searched the contents of the pouch, discovering the cocaine.

At the conclusion of the suppression hearing testimony, defense counsel argued that the warrantless search of the black pouch violated the Fourth Amendment, contending the pouch was deliberately placed under the house and J.W. had a reasonable expectation of privacy in its contents. The State argued the search of the pouch did not violate the Fourth Amendment because it was abandoned and the abandonment was not the product of police illegality. The court denied the motion to suppress without providing a basis for its ruling.

Abandonment under property law concepts is to be differentiated from abandonment for Fourth Amendment purposes:

The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question ... is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superi- or interest.... In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment.... In essence, what is abandoned is not necessarily the defendant’s property, but his reasonable expectation of privacy.

State v. Kennon, 652 So.2d 396, 398 (Fla. 2d DCA 1995) (quoting 1 Wayne R. LaFave, Search and Seizure § 2.6(b), 464-66 (2d ed.1987)).

Therefore, the question is not whether J.W. abandoned the pouch and its contents, but whether by his actions and words, he abandoned his reasonable expectation of privacy in the pouch and its contents. In Kennon, for example, officers were conducting “bar checks” to deter fights occurring in the establishments. As the officers walked into the parking lot of a bar to conduct a check, they observed Kennon walking toward them with an object in her hand. When the officers were ten yards away from Kennon, she stopped at a parked vehicle, looked around, knelt beside the rear of the passenger side of the vehicle, and placed the item in her hand behind the tire. Officers found a pouch there, opened it, and discovered marijuana. In reversing the trial court’s order suppressing the evidence, our sister court held: “Kennon could not expect Fourth Amendment protection when she chose to hide drugs under the wheel of a vehicle in a public area and walk away.” Kennon, 652 So.2d at 399. Under similar circumstances, the Fourth District in State v. Lampley, 817 So.2d 989 (Fla. 4th DCA 2002), reversed a suppression order, holding that the defendant had no reasonable expectation of privacy in a paper bag containing drugs that he stored in the wheel well of a truck between drug transactions.

J.W. asserts that Mr. Locke’s act of placement of the pouch under the house does not constitute an abandonment, that J.W. continued to maintain an expectation of privacy in the contents of that pouch, and that this expectation of privacy was violated by the officer’s warrantless seizure of the pouch and search of its contents.

J.W.’s position however, assumes too much and ignores the most important circumstance in the chain of events: J.W. was not the person who placed the pouch under the house. Instead, J.W. voluntarily gave the pouch to Mr. Locke. Upon doing so, J.W. relinquished possession, custody and control of the pouch to a third person, who then had exclusive possession, custody and control over the object and its contents. We need not reach the question of whether J.W. “abandoned” the pouch, because the evidence at the hearing fails to establish J.W.’s standing to contest the search and seizure. In other words, whether J.W. abandoned the pouch and its contents is not the real question. The question is whether, by giving Mr. Locke the pouch, J.W. abandoned his reasonable expectation of privacy in the pouch and its contents, and with it any legal standing to challenge the subsequent seizure and search. J.W. failed to establish at the hearing that he had (or maintained) a reasonable expectation of privacy in the pouch once he voluntarily relinquished the pouch to Mr. Locke.

J.W. contends that reversal is warranted by O’Shaughnessy v. State, 420 So.2d 377 (Fla. 3d DCA 1982). In O’Shaughnessy, a police officer stopped the defendant and asked him to explain his presence in the neighborhood. The defendant explained he had just come from visiting a nearby house, and the officer accompanied the defendant to the house to verify this explanation. Before entering the house, the defendant took off his jacket and laid it on a hedge near the porch of the house. The officer found no one home at the house, and he and the defendant began to walk away. The officer picked up the jacket to hand it to the defendant and felt it was heavy. The officer also noticed a bulge in the pocket. Instead of returning the jacket to the defendant, the officer searched it, discovering jewelry and a jewelry box. The trial court denied the motion to suppress and this Court reversed, finding that

from the words, acts and other objective facts of the present case, ... that by removing his jacket, placing it on a hedge a few feet from him, and commencing to walk away in front of the officer, the defendant did not renounce his justified expectation of privacy in the jacket or its contents.

Id. at 379.

O’Shaughnessy is inapposite, because there the defendant himself exercised control over the object and its contents by placing the jacket on the bush. He con-tinned to exercise control over it and by his conduct had not yet relinquished his interest in the jacket or his reasonable expectation of privacy in the jacket and its contents. By contrast, the only evidence presented at the evidentiary hearing in this case supports the trial court’s conclusion that J.W. gave up his interest in and control of the pouch and its contents by giving the pouch to Mr. Locke. In the absence of any evidence to the contrary, the evidence at the hearing established objectively that once the pouch was given to Mr. Locke, he had exclusive custody, possession, dominion and control over the pouch to the exclusion of all others, including J.W. J.W. had abandoned any expectation of privacy in the pouch and its contents.

The circumstances presented in United States v. Payne, 119 F.3d 637 (8th Cir.1997), are closely analogous. In Payne, the defendant was seen carrying a suitcase and placing it into the trunk of the co-defendant’s car. The co-defendant drove away and was later stopped by police. A search of the trunk revealed the suitcase, and a search of the suitcase revealed twenty kilograms of cocaine. Defendant was charged with conspiracy to distribute and possession with intent to distribute cocaine and moved to suppress the drugs found in the trunk, contending the search and seizure violated the Fourth Amendment. The trial court denied the motion and the Eighth Circuit affirmed, holding that the defendant “had no legitimate expectation of privacy in the suitcase found in [co-defendant’s] car. Id. at 642. Tellingly, and similar to the instant case, the court noted that the defendant had “presented no evidence that he owned the suitcase, had historical use of the suitcase, or had the ability to regulate access to the suitcase .... Finally no evidence in the record indicates that the suitcase had any type of identification tags indicating that the suitcase belonged to Payne.” Id.; see also Comm. v. Hawkins, 553 Pa. 76, 718 A.2d 265, 267-68 (1998) (defendant handed contraband to co-defendant, who then placed it in his mouth. Police took custody of co-defendant and extracted contraband from his mouth. Pennsylvania Supreme Court held that defendant lacked standing to challenge search and seizure as he “abandoned any personal privacy interest upon transferring the contraband to [co-defendant]”).

Because J.W. failed to establish the requisite standing to contest the legality of the search, we affirm the trial court’s denial of the motion to suppress.

THE ADJUDICATORY HEARING

Following the hearing on the motion to suppress, the court held an adjudicatory hearing, with Officer Wing testifying again. Wing testified that when he approached J.W. it was a consensual encounter because he did not have reasonable suspicion to conduct an investigatory stop. His remaining testimony was consistent with that previously discussed. Officer Jirón also testified at the adjudicatory hearing. According to Jirón, after Wing handed J.W. off to him and Jirón restrained J.W. by the waistband, J.W. turned, slapped Jirón on the hand, and fled. Jirón further testified that he chased J.W. and yelled at him to stop, but J.W. kept on running. This all took place before the drugs were discovered. When the State rested its case, defense counsel moved for a judgment of dismissal as to the charge of resisting an officer without violence. J.W. argued the State’s evidence failed to establish that the officers were in the lawful execution of a legal duty in attempting to detain J.W. J.W. contends that the officers were merely engaged in a consensual encounter, and a citizen has the right to ignore police officers and leave the scene during this type of encounter.

We review this issue de novo, McDuffie v. State, 970 So.2d 312 (Fla.2007), and hold that the trial court erred in denying the motion for judgment of dismissal on the charge of resisting an officer without violence.

To convict a defendant of resisting an officer without violence, the State is required to prove first that the officer was engaged in the lawful execution of a legal duty, and second that the actions of the defendant obstructed, resisted or opposed the officer in the performance of that duty. O.B. v. State, 36 So.3d 784 (Fla. 3d DCA 2010). “The element of a lawful execution of a legal duty is satisfied if an officer has either a founded suspicion to stop the person or probable cause to make a warrant-less arrest. Otherwise, the individual has a right to ignore the police and go about his business.” Id. at 786 (quoting E.A.B. v. State, 851 So.2d 308, 311 (Fla. 2d DCA 2003)).

Flight, on its own, will not form the basis of a resisting without violence charge, C.E.L. v. State, 24 So.3d 1181 (Fla.2009), but it will support a resisting charge if the State proves: “(1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” O.B., 36 So.3d at 788. A juvenile’s flight in a high-crime area creates reasonable suspicion to justify a lawful investigative stop. C.E.L., 24 So.3d at 1189.

Officer Wing testified (and the evidence supports the conclusion) that at the time he approached J.W. for a consensual encounter, he did not have reasonable suspicion to stop him. Because Wing did not have a well-founded suspicion of criminal activity, the State cannot establish the elements for resisting an officer without violence.

The State has cross-appealed this issue, contending that the trial court erred in excluding Wing’s testimony regarding his conversations with informants and that such excluded testimony would have established the necessary reasonable suspicion to justify the stop of J.W., and thus satisfied the “lawful execution of a legal duty” element of the resisting charge. While the State might well be correct in this argument, we need not reach this issue, because the State failed to properly preserve this issue at the trial court level, and thus cannot raise the issue on appeal. Harrell v. State, 894 So.2d 935 (Fla.2005).

We affirm the trial court’s order denying the motion to suppress. We reverse the trial court’s order denying J.W.’s motion for judgment of dismissal on the charge of resisting an officer without violence, and remand for entry of a judgment of dismissal on that count.

      . It should be noted that the motion to suppress was not sworn to or signed by J.W., and the motion failed to allege that J.W. resided in, or had any possessory or ownership interest in, the house under which the pouch was placed. His assertion was simply that he had a reasonable expectation of privacy in the pouch and its contents.

      . Although the concept of "standing” has, as a practical matter, been merged with the ultimate determination of whether a Fourth Amendment violation has occurred, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), we have never dispensed with the requirement that a defendant establish a reasonable expectation of privacy in the place searched or the item seized in order to challenge the constitutional reasonableness of a search. State v. Singleton, 595 So.2d 44 (Fla.1992); State v. Brown, 575 So.2d 763 (Fla. 4th DCA 1991). Prior to Rakas, the defendant was required to make a threshold showing of the requisite standing to contest the search before proceeding to an evidentia-ry hearing. Following the decision in Rakas, this threshold showing is not ordinarily made prior to the evidentiary hearing; instead, the trial court will generally hold the evidentiary hearing and analyze the issue of "standing” (i.e., the existence of a reasonable expectation of privacy) in conjunction with the ultimate determination of whether the search or seizure was conducted in compliance with the Fourth Amendment. See e.g., Nieminski v. State, 60 So.3d 521, 524 (Fla. 2d DCA 2011) (citing Hicks v. State, 929 So.2d 13, 16 n. 3 (Fla. 2d DCA 2006)).

      . There is no evidence, for example, that J.W. (as opposed to Mr. Locke) was the actual owner of the pouch and its contents. Nor is there any evidence that J.W. continued to maintain any ability to exercise control over the pouch once he voluntarily relinquished it to Mr. Locke. Whether couched in terms of abandonment or standing, the result is the same: J.W. failed to establish that he had (or maintained) any expectation of privacy in the pouch or its contents once he surrendered it to Mr. Locke.

      . For example, J.W. could have attempted to establish that he was the owner (or resident) of the house where the pouch was placed; was the owner of the pouch and its contents; or that he gave the pouch to Mr. Locke for safekeeping or with directions to place the pouch in a specific location.


source: Caselaw Access Project

license: Public Domain

text:
    F.M., Appellant, v. STATE of Florida DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D12-891.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.

      Kevin Coyle Colbert; Karl E. Hall, Jr., for appellant.
    Karla Perkins, Appellate Counsel for the Department of Children and Families; Hillary S. Kambour, Appellate Counsel for the Guardian ad Litem Program.
    Before SHEPHERD, SALTER and EMAS, JJ.
   EMAS, J.

F.M. (“the father”), appeals from a final judgment terminating parental rights as to his three children, C.M., K.M., and Q.M. The three children came to the attention of the Department of Children and Families (“DCF”) after it was reported that the children’s stepmother had been beating the father and her three stepchildren. At the time, the biological mother lived in Louisiana. The father was given custody of the children, but when the father and the children later moved back in with the abusive stepmother, DCF intervened, and the stepmother moved out. A petition for dependency was filed in Miami-Dade circuit court on September 24, 2010, and the children were adjudicated dependent on October 6, 2010, but the children remained in the custody of the father.

In January 2011, the court ordered that the biological mother be given custody of the children, and the children moved with her to Louisiana. The father, who also moved to Louisiana, was initially granted unsupervised visitation, later changed by court order to supervised visitation. Both parents were given case plans, and the father was ordered to pay child support.

On July 29, 2011, the father appeared before a court in Louisiana and obtained an ex parte temporary custody order for the children without advising the Louisiana court of the existing proceedings in Miami-Dade. The father then appeared at the mother’s home, accompanied by police and the ex parte order, to take the children from her custody, but was unsuccessful due to the intervention of DCF and the mother’s attorney. On July 30, 2011, the Louisiana court vacated its ex paHe temporary order, finding that the father had failed to “disclose a full and total picture of the parties, the various relationships appertaining, and the previous orders of Florida that remain in full force and effect.” The following day, the Miami-Dade trial court ordered the father have no contact with the children. The father was also ordered to appear on August 19, 2011, before Judge Lederman, or be held in contempt. The father failed to appear, and the trial court issued a writ of bodily attachment.

At a judicial review/permanency hearing on September 2, 2011, which the father attended by phone, the court found the father not in compliance with his case plan. DCF filed a petition for termination of the father’s parental rights (“TPR”) on September 23, 2011, seeking termination based on the father’s failure to complete his case plan and his attempt to take the children from the mother with a fraudulent custody order.

DCF filed affidavits stating the father was evading service and, at a hearing on November 15, 2011, the court ordered the father be served by publication. The court set an advisory hearing for February 29, 2012. Notice of the advisory hearing and substitute service of process was provided, pursuant to section 39.801(3)(b), Florida Statutes (2010), via publication in local newspapers in both Miami-Dade and Louisiana where the father had reportedly last lived. The notice identified the father by name, provided his last known address, and read:

Notice is hereby given that a petition under oath has been filed in the above styled Court for the termination of your parental rights, respectively and the permanent commitment of the minor child(ren), C.M., K.M. and Q.M., to the Florida Department of Children and Families for subsequent adoption. You are further notified that the ADVISORY HEARING on the above styled cause will be held at the Juvenile Justice Center at 3300 NW 27th Avenue, Miami, Florida 33142 before the Honorable Cindy Lederman, Courtroom 2-7, on the 29th of February, 2012 at 1:30 p.m.
WARNING: FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING, ON THE DATE AND AT THE TIME LISTED ABOVE, CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.
Your child(ren) will then be permanently committed to the State of Florida Department of Children and Families, for subsequent adoption, without further warning.

At the hearing on February 29, 2012, both the mother and the father appeared by phone. When the judge discovered the father was appearing telephonieally, the following brief exchange took place:

The Court: Well that’s not good enough. You’re supposed to be here.
The Father: I couldn’t afford it.
The Court: Well, that’s really too bad.
DCF: How is he on the phone?
The Court: Okay, so go ahead.
Counsel for the mother: With the mother?
DCF: No, that’s [the father]. Judge, well, [the father] is present via phone. There is publication. His attorney over there [in Louisiana] was noticed to be present.
The Court: He is not present. I am granting the termination of parental rights and closing the case. Mr. M. has no contact with his children.
The Court: ... Well, he’s not here, and a default has been issued. Mr. M., your parental rights have been terminated and you have no contact whatsoever with these children.

The court terminated the father’s parental rights. In its final judgment, the court found that the father had abandoned his children, had a history of absconding with the children, had failed to make any provisions for the children’s support, and that pursuant to section 39.811(6)(d), the protection of the children warranted the termination of the father’s parental rights.

Section 39.801(3)(a), Florida Statutes (2011), provides that prior to the termination of a parent’s parental rights, the court must provide “notice of the date, time, and place of the advisory hearing for the petition to terminate parental rights.” This notice must contain specified language set forth in section 39.801(a)(7), and service by publication is authorized pursuant to the rules of civil procedure when a parent cannot be served. Importantly, section 39.801(3)(d) provides: “If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”

“It is well-settled that section 39.801(3)(d) and Florida Rule of Juvenile Procedure 8.510(a)(3) provide statutory and procedural authority for the court to accept a parent’s failure to appear at an advisory hearing as constructive consent to termination of parental rights by default.” B.H. v. Dep’t of Children & Families, 882 So.2d 1099, 1100 (Fla. 4th DCA 2004). However, “constructive consent in termination of parental rights cases should be a disfavored result.” Id. Of significance, “termination of parental rights should never be determined on a default basis or by ‘gotcha’ practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his control.” Id. In B.H., a case similar to the instant case, the father’s parental rights were terminated after he appeared telephonically at the advisory hearing, explaining he could not appear personally because he lived in another state, the notice had been too short, and he was “sitting in about a foot and a half of snow.” The trial court found that the father’s failure to appear personally constituted consent to the TPR, and terminated the father’s parental rights. The Fourth District Court of Appeal reversed, holding that “under the facts of this case, father’s appearance by telephone constituted a personal appearance for purposes of section 39.801(3)(d)” and that the trial court had abused its discretion in entering a default. Id. Importantly, the Fourth District Court of Appeal noted that the

father, through his appearance by telephone, clearly sought to interject himself into the proceedings and enter a denial to the court entering a termination to his parental rights.... Father’s appearance by phone enabled the court to inform the parent of the significance of the advisory hearing and thereby comply with the purpose of the statute requiring a parent’s personal appearance.
Id. at 1101-02.

In the instant case, the father lived in Louisiana and appeared by phone, explaining that he was not appearing in person because he could not afford to do so. The transcript reveals that the trial court failed to seek any explanation or further detail from the father regarding his financial ability to travel to Florida to appear in person for the hearing. The failure to make further inquiry or seek further explanation, and thereafter make a determination of the reasonableness of that explanation, was an abuse of discretion. B.H., 882 So.2d at 1102. See also In re H.S., 995 So.2d 516 (Fla. 2d DCA 2008) (reversing TPR where court refused to allow mother to appear telephonically to explain the reasons for her nonappearance); In re C.M., 941 So.2d 1255 (Fla. 2d DCA 2006) (reversing TPR where father was delayed in trav-elling to the courthouse by public transportation); R.P. v. Dep’t of Children & Families, 835 So.2d 1212 (Fla. 4th DCA 2003) (reversing TPR where father had difficulty getting to hearing on time due to transportation issues and had requested a continuance). Cf. S.C. v. Dep’t of Children & Families, 877 So.2d 831 (Fla. 4th DCA 2004) (affirming TPR where trial court gave mother opportunity to explain her failure to appear and, following mother’s testimony, found her explanations were contradictory and not credible).

DCF argues that the trial court did not abuse its discretion because the father had been represented by private counsel in the proceeding in Louisiana, and that this demonstrated the father had the financial resources to appear in person for the advisory hearing. This conclusion, however, is unsupported by the record. The trial court did not ask the father to explain how he was able to be represented by private counsel in Louisiana; whether he had paid private counsel for that representation; if so, how much he paid private counsel; and the source of the funds used to pay counsel. Moreover, private counsel had represented the father in Louisiana seven months before the February 29, 2011 hearing, and there was no indication — or opportunity for the father to explain — whether his financial status had changed in the intervening period.

Given the father’s initial explanation for attending telephonically, the trial court should have further inquired and afforded the father an opportunity to explain why he could not appear in person, after which the trial court could have made a record determination of the genuineness or reasonableness of the proffered explanation.

Reversed and remanded to the trial court to conduct further proceedings consistent with this opinion.

      . See also Florida Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228 (Fla.2009) (upholding the constitutionality of the default provision in section 39.801(3)(d)).

      . The Fourth District Court of Appeal explained that by appearing telephonically, the father attempted to make his presence known and that his failure to appear personally was accompanied by a reasonable explanation. Id. at 1102.

      . After the trial court had disconnected the father from the proceeding, it was discovered that the father had called in using a telephone with a "786” area code. DCF argues that this demonstrates the father was in Miami at the time of the hearing. However, there is no evidence in the record to support this conclusion, and it is just as (if not more) likely that the father, who at one time lived in Miami, made the call using a cell phone bearing a 786 area code.

      . We conclude the other issues raised by the father are without merit.


author: ROTHENBERG, J.

text:
    C.D., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D11-2750.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.

      Jessica A. Elliott, for appellant.
    Hilda A. Fluriach, for appellee.
    Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

C.D. appeals a final order issued by the Agency for Persons with Disabilities (“the Agency”) denying her application to participate in the Developmental Disabilities Home and Community Based Medicaid Waiver Program (“the Program”). Because C.D. failed to meet her burden of demonstrating that she suffers from a developmental disability, we affirm.

On May 17, 2010, C.D. filed an application with the Agency for enrollment in the Program. In response, the Agency informed C.D. that she did not meet the criteria for enrollment in the Program based on her failure to demonstrate a developmental disability as defined in section 393.063, Florida Statutes (2011). C.D. filed a timely request to dispute the Agency’s decision, and her claim was referred to the Department of Children and Families for a formal hearing.

The sole evidence presented by C.D. at the hearing was the testimony of C.D.’s father. However, pursuant to C.D.’s request, the hearing officer left the record open for fifteen days to allow C.D. to submit additional evidence. Approximately two weeks later, when the assigned hearing officer received no additional evidence, the record was officially closed. Thereafter, the hearing officer issued a recommended order in support of C.D.’s application.

After receiving the hearing officer’s recommended order, the Agency filed exceptions challenging the order pursuant to Rule 28-106.217(1), Florida Administrative Code. After a complete review of the record, the Agency determined that the hearing officer’s findings of fact were not supported by competent substantial evidence and it therefore rejected the hearing officer’s recommendation in accordance with section 120.57(3), Florida Statutes (2011). Thereafter, the Agency issued a final order denying C.D.’s application for enrollment in the Program “without prejudice to petitioner’s right to submit another application in the future.” C.D.’s timely appeal before this Court followed.

On appeal, C.D. contends the Agency erred by determining that she failed to demonstrate a developmental disability under section 393.063. We disagree.

An agency’s conclusions of law are reviewed de novo, Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001), however, “[a]n agency’s interpretation of the statute it is charged with enforcing is entitled to great deference.” Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla.2002).

To participate in the Program, an applicant must demonstrate that he or she has a developmental disability as strictly defined by Florida law. A “developmental disability” is defined under section 393.063(9), as a “disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” In order to demonstrate the presence of a developmental disability for the purposes of section 893.063, an applicant must submit an official evaluation performed by a licensed psychologist confirming the finding of a disability, using the specific testing methods prescribed by Florida’s Administrative Code. See Fla. Admin. Code. R. 65G-4.012(1) (“For the purposes of Chapters 393 and 916, F.S., the Stanford-Binet Intelligence Scale or Wechsler Adult & Infant Intelligence Scale, administered by or under the direct supervision of a psychologist or school psychologist licensed under Chapter 490, F.S., shall be used to determine mental retardation and the level of intellectual functioning.”). During an administrative hearing, the petitioner has the burden of showing by a preponderance of the evidence that he or she has met the requirements for participation in the Program under section 393.063. See Fla. Admin. Code R. 65-2.060(1). Importantly, hearsay evidence by itself is insufficient to support a finding of fact in an administrative hearing, unless it would be admissible over objection in civil actions. See § 120.57(1)(c), Fla. Stat. (2011).

During the formal hearing, C.D. failed to introduce any competent evidence of a developmental disability as defined by section 393.063(9). C.D. offered the testimony of her father. However, his opinions and observations of C.D.’s mental condition alone do not satisfy her burden of proof. The only psychological evaluation of C.D. introduced into evidence was that of the Agency’s witness, Dr. Garcia. Dr. Garcia’s evaluation did not, however, provide C.D. with the proof she needed because: (1) he failed to utilize a testing method recognized by Rule 65G-4.012; and (2) in his evaluation he did not find that C.D. suffers from a qualified developmental disability.

Although the hearing officer’s recommended order references two other psychological evaluations supporting a diagnosis of a developmental disability, the officer’s consideration of these evaluations was improper because: (1) neither expert testified at the hearing; (2) C.D. did not introduce the evaluations into evidence; and (3) neither of the testing methods utilized in the evaluations conforms to the required specifications of Rule 65G-4.012. On appeal, C.D. has attached these evaluations and asks this Court to take judicial notice of the findings contained in them. However, because these evaluations were not introduced below and are not contained in the record on appeal, we must reject her invitation. See Hughes v. Enter. Leasing Co., 831 So.2d 1240, 1240 (Fla. 1st DCA 2002) (“As it is not part of the record but merely attached to the ap-pellee’s brief, the Court cannot review the document on appeal.”).

Because the record reflects that C.D. failed to meet her burden of establishing that she suffers from a developmental disability under Florida law, we affirm the Agency’s determination finding C.D. ineligible to participate in the Program.

Affirmed.


author: SHEPHERD, J.

text:
    Michael MIDDLETON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1091.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Rehearing Denied Aug. 28, 2012.

      Michael Middleton, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

On April 19, 2012, Appellant, Michael Middleton, filed an appeal from a court order denying his Florida Rule of Criminal Procedure 3.800 motion. On June 6, 2012, we ordered Middleton to show cause why he should not be prohibited from filing further pro se appeals or petitions with this court concerning his convictions and sentences arising from lower tribunal number 93-10171. After a careful review of Middleton’s response to the order, his Motion to Correct Illegal sentence, the State’s response below, and the numerous previous appeals, we now prohibit Middleton from filing any further pro se appeals, motions, or petitions with this court relating to his convictions and sentences.

I. Facts

In July of 1994, Michael Middleton was convicted of two counts of burglary of a dwelling. Because of his prior felony convictions, he received' enhanced sentences as a habitual offender and was sentenced to thirty years in prison on each count, to run consecutively. Among Middleton’s convictions were two counts of burglary in 1992, one count of burglary in 1990, and one count of sexual battery in 1983.

Since 1994, Middleton has filed and appealed nineteen motions for post-conviction relief and two petitions for writ of habeas. In the current appeal, Middleton argues his illegal sentence must be corrected because the trial court relied on predicate convictions from 1983 and 1992, which violates the single-subject rule.

While it is true Middleton was convicted of and sentenced for several additional felonies after being sentenced in lower tribunal case number 93-010171, it is clear he already had been convicted of at least two felonies prior to that date, with at least one of those faffing within five years’ time of the current conviction, as required by statute to classify a person as a habitual offender. This court already addressed this issue in Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998) (holding that the 1983 and 1992 convictions were counted properly as predicate offenses).

Additionally, contrary to Middleton’s assertion, he was not sentenced under the statutory amendments declared in violation of the single subject rule. In State v. Johnson, 616 So.2d 1, 4 (Fla.1993), the Florida Supreme Court stated: “[W]e conclude that chapter 91-44’s biennial reenactment of chapter 89-280, effective May 2,1991, cured the single subject violation as it applied to all defendants sentenced under section 775.084 whose offenses were committed after that date.” Middleton was sentenced in 1994, well after any violation in the statute had been cured. We therefore find no merit in the motion to correct sentence, and affirm the lower court.

II. Frivolous Appeals by Prisoners

“We recognize that incarcerated persons should and do have a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations.” Hepburn v. State, 934 So.2d 515, 517 (Fla. 3d DCA 2005); Johnson v. State, 915 So.2d 682, 684 (Fla. 3d DCA 2005). There is, however, no constitutional right to file a frivolous lawsuit. See Hepburn, 934 So.2d at 517-18; see also Lewis v. Casey, 518 U.S. 343, 353 n. 3, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (“Depriving someone of a frivolous claim ... deprives him of nothing at all, except perhaps the punishment of ... sanctions.”). As this court stated in Lanier v. State, 983 So.2d 658, 660 (Fla. 3d DCA 2008), Hicks v. State, 974 So.2d 1116, 1118 (Fla. 3d DCA 2008), and Minor v. State, 963 So.2d 797, 799 (Fla. 3d DCA 2007), “there comes a point where enough is enough.” Based upon careful review of Middleton’s filings in this court, we believe he has reached that point.

III. Conclusion

For the foregoing reasons, we affirm the trial court’s denial of Middleton’s Rule 3.800 motion. We further direct the Clerk of the Third District Court of Appeal to refuse to accept for filing in this court any further appeals, pleadings, motions, petitions, or other papers relating to Middleton’s conviction and sentence in lower court case number 93-10171, unless they are filed by a Florida Bar member in good standing.

Finally, we direct the Clerk to forward a certified copy of this opinion to the Department of Corrections for consideration by that institution of disciplinary measures against Middleton, pursuant to sections 944.279(1) and 944.28(2)(a), Florida Statutes (2010). See Pettway v. McNeil, 987 So.2d 20 (Fla.2008).

      . See Middleton v. State, 46 So.3d 1011 (Fla. 3d DCA 2010) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 19 So.3d 321 (Fla. 3d DCA 2009) (table) (affirming denial of motion to compel); Middleton v. State, 971 So.2d 123 (Fla. 3d DCA 2007) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 947 So.2d 1177 (Fla. 3d DCA 2007) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 915 So.2d 1219 (Fla. 3d DCA 2005) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 901 So.2d 134 (Fla. 3d DCA 2005) (affirming denial of Rule 3.800 motion); Middleton v. State, 900 So.2d 770 (Fla. 3d DCA 2005) (affirming denial of Rule 3.800 motion); Middleton v. State, 890 So.2d 1252 (Fla. 3d DCA 2005) (affirming denial of Rule 3.800 motion); Middleton v. State, 879 So.2d 634 (Fla. 3d DCA 2004) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 844 So.2d 807 (Fla. 3d DCA 2003) (affirming without prejudice denial of Rule 3.800 motion); Middleton v. State, 806 So.2d 488 (Fla. 3d DCA 2001) (table) (denying petition for writ of habeas); 798 So.2d 742 (Fla. 3d DCA 2001) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 725 So.2d 1128 (Fla. 3d DCA 1998) (table) (affirming denial of Rule 3.800 motion); Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998) (affirming denial of Rule 3.800 motion); Middleton v. State, 705 So.2d 16 (Fla. 3d DCA 1998) (affirming denial of Rule 3.800 motion); Middleton v. Singletary, 708 So.2d 280 (Fla. 3d DCA 1998) (denying petition for writ of habeas); Middleton v. State, 687 So.2d 248 (Fla. 3d DCA 1997) (table) (affirming denial of Rule 3.850 motion); Middleton v. State, 660 So.2d 5 (Fla. 3d DCA 1995) (affirming denial of Rule 3.800 motion).


text:
    AMERICAN FEDERATION OF STATE, COUNTY, etc., Appellant, v. MIAMI-DADE COUNTY PUBLIC SCHOOLS, Appellee.
    No. 3D11-1572.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.

      Phillips, Richard & Rind, Osnat K. Rind and Michael B. Schoenfeld, for appellant.
    Luis M. Garcia and Christopher F. Kurtz, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

The American Federation of State, County, and Municipal Employees, Local 1184, AFL-CIO (“the Union”) appeals an order of final judgment which granted a motion for rehearing of an order vacating an arbitration award and confirming an arbitration award in favor of Miami-Dade County Public Schools (“the School Board”).

This case presents the following legal issue; Where a mutual mistake exists between the parties to an agreement, does reformation of that agreement constitute a “modification”? We answer that question in the negative and, for the reasons which follow, affirm the trial court’s order confirming an arbitration award in favor of the School Board.

FACTS AND OVERVIEW

When a dispute arose between the Union and the School Board over wages, the Union filed a grievance pursuant to Article VII of the parties’ Collective Bargaining Agreement (“CBA”), and the matter proceeded to arbitration. The Union claimed the School Board had refused to pay employees as set forth in the salary schedules attached to the CBA, and the School Board asserted that the salaries set forth in one of those schedules were incorrect due to a mutual mistake by both the Union and the School Board. The Union argued that the mistake belonged solely to the School Board and sought a decision as to whether the School Board had violated the CBA by not paying in accordance with the salary schedule for two years, and if so, what was the proper remedy. The difference between the two schedules (the one bargained for vs. the one attached to the CBA) would have required the School Board to pay approximately $9 million more than it had budgeted for during the three-year period covered by the CBA.

The arbitrator found that, although the School Board was responsible for preparing the mistaken documents (the salary schedules attached to the CBA), the Union knew or should have known the salary schedules were grossly above what the parties had agreed to during bargaining, and accordingly, determined that the salary schedules should be reformed to reflect the actual intent of both parties.

The Union filed in circuit court an application to vacate the arbitration award, asserting the arbitrator exceeded his jurisdiction under the express provisions of the CBA. Article VII, Section 4 of the CBA provides:

The arbitrator shall limit his/her decision to the application and interpretation of this Agreement and the arbitrator shall have no right to amend, modify, nullify, ignore, or add to the provisions of this Agreement.

The Union contended that, by effectuating a reformation, the arbitrator amended or modified the agreement, acting beyond the scope of his contractual authority and thus in excess of his jurisdiction. The School Board argued the arbitrator did not exceed his authority and acted within the proper course and execution of his duties, and that there was no basis to vacate the arbitration award. After a hearing, the trial court entered an order vacating the arbitration award, finding the arbitrator exceeded the scope of his contractual authority by reforming the CBA.

The School Board filed a motion for rehearing, arguing that reformation of a contract is not the same as amending or modifying the contract, and the arbitrator, having found the existence of a mutual mistake, simply determined the parties’ true intent under the CBA as reflected by the revised salary schedule executed on July 12, 2007. The trial court granted the motion for rehearing, vacated its prior order, and confirmed the arbitration award. This appeal ensued. Because the issue presented is one of law, our standard of review is de novo. Regalado v. Cabezas, 959 So.2d 282 (Fla. 3d DCA 2007).

ANALYSIS

Arbitration awards are treated with a high degree of conclusiveness, and a court has extremely limited discretion to vacate an arbitration award. Commc’ns Workers of Am. v. Indian River Cnty. Sch. Bd., 888 So.2d 96 (Fla. 4th DCA 2004). To prevail on a motion to vacate an arbitration award, a party must establish one of the five grounds set forth in section 682.13(1), Florida Statutes (2007), which provides:

(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.

“In the absence of one of the five factors set forth in the statute, neither a trial court nor a district court of appeal has the authority to overturn the award.” Schnurmacher Holding Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989). The Union contends that by “modifying” an agreement containing a no-modification clause, the arbitrator exceeded his powers in the course of his jurisdiction, thereby violating section 682.13(1)(c).

Thus the issue presented is whether, in light of the mutual mistake, the arbitrator’s reformation of the salary schedule constituted a modification prohibited under the terms of the CBA.

This case presents a classic example of a mutual mistake: “A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Providence Square Ass’n. v. Biancardi, 507 So.2d 1366, 1372 (Fla.1987); see also Blumberg v. Am. Fire & Cas. Co., 51 So.2d 182, 184 (Fla.1951); Fed. Ins. Co. v. Donovan Indus., Inc., 75 So.3d 812, 815 (Fla. 2d DCA 2011). When a mutual mistake exists, a reformation of the document is an appropriate remedy to ensure that it expresses the true intentions and agreement of the parties. Biancardi, 507 So.2d at 1369; Donovan, 75 So.3d at 815 (holding the undisputed facts supported reformation based on mutual mistake).

Although there appears to be no Florida case addressing this precise circumstance, the Florida Supreme Court has acknowledged generally that reformation of a written instrument “in no way alters the agreement of the parties. Instead the reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.” Biancardi, 507 So.2d at 1370 (citing Porter v. Meigs, 74 So.2d 82 (Fla.1954); S. Lead Corp. v. Glass, 103 Fla. 657, 138 So. 59 (1951); Smith v. Caravasios, 96 Fla. 219, 118 So. 10 (1928)); 9 Fla. Jur. 2d Cancellation § 53 (2012); 27 Williston on Contracts § 70.19 (4th ed.). See also In re Voca Corp., 99 Lab. Arb. Rep. (BNA) 345, 348 (1992) (Modjeska, Arb.) (holding “it has long been recognized that reformation of the agreement must be allowed if due to a mutual mistake the written agreement differs from the language agreed upon”); In re Food Emp’rs Council, Inc. & United Food & Comm. Workers Int’l Union, 87 Lab. Arb. Rep. (BNA) 514, 517 (1986) (Kaufman, Arb.) (noting “the Arbitrator’s function in reforming an agreement is not to effect a change in the parties’ agreement but to give effect to the parties’ original intention”). In such cases, arbitrators have reformed contracts where, as typewritten, the contract did not reflect the actual agreement of the parties. See id. at 517 (noting “arbitrators have commonly awarded the remedy of reformation ... ‘upon a finding of mutual mistake’ ”).

As this Court observed in Kolski v. Kolski, 731 So.2d 169, 173 (Fla. 3d DCA 1999), reformation based upon mutual mistake “acts to correct an error not in the parties’ agreement but in the writing which constitutes the embodiment of that agreement.” (quoting Smith v. Royal Auto. Grp., Inc., 675 So.2d 144, 150 (Fla. 5th DCA 1996)).

We explained the purpose behind the remedy of reformation:

The underlying rationale is that in reforming the instrument the agreement of the parties is in no way altered but merely corrects the defect in the written document to reflect the true terms of the parties’ agreement.

Kolski, 731 So.2d at 173.

Where a mutual mistake results in a written document which differs from the terms the parties actually agreed upon, an arbitrator who reforms the instrument is merely acting to restore the parties’ true intent. In fact, one might cogently argue that the failure to reform the agreement in the undisputed presence of a mutual mistake would constitute a modification. If the arbitrator were to enforce the pay schedule mistakenly attached to the agreement, it would result in the School Board paying, and certain Union members receiving, nine million dollars more than the parties had indisputably agreed to. In the absence of a reformation, this mistaken pay schedule would itself constitute a modification of the parties’ true intent and agreement.

We hold that the arbitrator’s reformation of the agreement, as expressed in the revised salary schedule, was not a modification of the CBA, and thus was not prohibited by the no-modification clause, because the revised pay schedule reflects exactly what the parties negotiated and agreed to in January 2007.

Affirmed.

      . The arbitrator also determined that, after both parties became aware of the mistaken schedules, the Union’s representative and the School Board’s representative executed a revised salary schedule. However, this revised agreement, with the corrected schedule, was never ratified by the Union members.

      . On appeal, the Union does not challenge the arbitrator’s findings that a mutual mistake occurred and that the revised salary schedule accurately represented the true agreement of the parties.

      . The Union relies primarily on two cases. The first, Swepco Tube LLC v. Local 427 IUE-CWA, AFL-CIO, No. 07-cv-767 (PGS) 2008 WL 746670 (D.N.J. March 18, 2008), is an unpublished opinion and inapposite. The second, West Coast Telephone Co. v. Local Union No. 77, 431 F.2d 1219, 1221 (9th Cir.1970), addresses the same issue raised here. Although reaching a contrary conclusion, the opinion offers little analysis and is unpersuasive. We believe our holding reflects the more well-reasoned analysis.


author: PER CURIAM.

text:
    Prospero MUNGUIA, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD, Gallagher Bassett Services, Inc., et al., Appellees.
    No. 3D11-2566.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Richard A. Sicking, Coral Gables, for appellant.

      Angones, McClure & Garcia and Surama Suarez, Miami, for appellees Miami-Dade County School Board and Gallagher Bas-sett Services, Inc.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 86.011, Fla. Stat. (2003); Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008); Gulf Pines Mem’l Park, Inc. v. Oaklawn Mem’l Park, Inc., 361 So.2d 695 (Fla.1978); Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981); Rice v. Dep’t of Health & Rehab. Servs., 386 So.2d 844 (Fla. 1st DCA 1980).


text:
    Abdelmounaim NASSIH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1675.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Michelle A. Estlund, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).


text:
    Pablo Simon TEMBRAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-900.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Ricard R. Corona and Sahar Razzaghi-Awal, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. QUALITY MEDICAL GROUP, INC., a/a/o Melissa Ann Doctor, Respondents.
    No. 3D11-3069.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Michael J. Neimand, Miami, for petitioner.
    Marlene S. Reiss, Miami; Rina Kaplan, Hollywood, for respondents.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Upon review of the petition and the response, this Court grants the petition for writ of certiorari. We grant the petition and quash the award of appellate attorney’s fees to respondent. Respondent properly concedes that appellate attorney’s fees should not have been awarded to respondent because it did not prevail on the issues on appeal. Brass & Singer v. United Auto. Ins. Co., 944 So.2d 252 (Fla.2006).

Petition granted.


author: SUAREZ, J.

text:
    The STATE of Florida, Appellant, v. Richard Jay MARR, Appellee.
    No. 3D11-2082.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.

      Mark E. Kohl, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

The State appeals the grant of a motion to suppress evidence seized pursuant to a search warrant. We reverse.

On October 8, 2010, Monroe County Sheriffs Officers executed a search warrant and seized marijuana and paraphernalia at the defendant’s residence. During the search by the Monroe County Sheriffs Officers, it was noted that there were certain possible code violations in the residence. After the search and seizure of the marijuana and paraphernalia, the officers contacted the Monroe County Code Enforcement Office which sent to the scene Code Enforcement Officers who then seized non-contraband items not related to the criminal conduct and not named in the search warrant. The defendant moved to suppress all of the evidence seized by the Sheriffs Officers claiming that the search conducted was invalid due to the subsequent presence of Code Enforcement Officers on the scene. The trial court granted the motion and suppressed all of the evidence. We are in agreement with the State’s position that, because the code enforcement inspection took place after the search warrant had been fully executed by the Sheriffs Officers and because the code enforcement inspection did not directly lead to the seizure of the contraband, the evidence seized by the Sheriffs Officers should not have been suppressed. See State v. Vargas, 667 So.2d 175 (Fla.1995); State v. Hill, 980 So.2d 1181 (Fla. 4th DCA 2008); Romero v. State, 641 So.2d 455 (Fla. 1st DCA 1994); Morris v. State, 622 So.2d 67 (Fla. 4th DCA 1993); Search Warrant Law Desk Book § 12:2 (Feb. 2012); cf. Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (holding that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of execution of the warrant; not addressing whether the exclusionary rule would apply to any evidence discovered by the media).

The order granting the motion to suppress the evidence is reversed.

      . The items seized included an outboard motor and $231.00 in cash.

      . We do not address whether the outboard motor and the $231.00 in cash are subject to a motion for return of property in the defendant’s criminal case.


text:
    Rodney COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-568.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

We affirm the conviction and sentence and, pursuant to the agreement of the parties, we remand to conform the judgment to the oral pronouncement of the trial judge.

Affirmed and remanded.


text:
    James E. DAVIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D11-2394.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Rehearing Denied Aug. 28, 2012.
    James E. Davis, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   PER CURIAM.

Following review of the petition for writ of mandamus and the response thereto, it is ordered that said petition is denied as moot, as the trial court entered written orders that fully address the petitioner’s 1999 motion and amended 2001 motion.

Petition for Writ of Mandamus denied.


text:
    Angel PELAEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-788.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Ricardo Corona, Coral Gables, and Sa-har Razzaghi-Awal, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Alberto PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2232.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and FERNANDEZ, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Alberto Perez appeals an order revoking his probation. Appellee, the State, concedes that at the hearing below, the court’s oral pronouncement only found a violation of two conditions: possession of weapons while on probation without the consent of the probation officer (“Violation of Condition (K2) of the Order of Probation”) and possession of weapons by a convicted felon (“Violation of Condition (K4) of the Order of Probation”). The State acknowledges that the revocation order erroneously included six conditions as a basis for revoking probation. •

Based on the State’s concession, we reverse the revocation order in part and remand with instructions to strike the references to the four other conditions from the Order of Revocation of Probation. See Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.”) The defendant need not be present.

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


text:
    L.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2634.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012) (holding the statutory provisions of section 893.13, Florida Statutes (2011) “do not violate any requirement of due process” articulated by the Florida Supreme Court and United States Supreme Court).


text:
    Dr. Mitchell SENFT, Appellant, v. PATTERSON DENTAL SUPPLY, INC., Appellee.
    No. 4D11-712.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Eric Ash of Shochet Law Group, Green-acres, for appellant.
    Christopher D. Hale of Christopher D. Hale, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We reverse the final summary judgment entered in this contract action, as the ap-pellee failed to conclusively negate the affirmative defenses raised by appellant. See Corya v. Sanders, 76 So.3d 31, 34 (Fla. 4th DCA 2011); Riverwood Condo. Ass’n, Inc. v. Litecrete, Inc., 69 So.3d 983, 985 (Fla. 3d DCA 2011). Moreover, the appel-lee relied in its affidavit in support of summary judgment on a contract (order form) which was never mentioned or relied upon as part of the contract in its complaint. At the very least, it raises a material issue of fact as to what constituted the contract between the parties. See, e.g., Grumman Ecosystems Corp. v. Palm Beach Cnty., 391 So.2d 699 (Fla. 1st DCA 1980).

WARNER, POLEN and DAMOORGIAN, JJ., concur.


author: ROBERTS, J.

text:
    Michael D. MAYFIELD, Bonnie J. Mayfield, and Branch Banking and Trust Company, Appellants, v. FIRST CITY BANK OF FLORIDA, Appellee.
    No. 1D11-3681.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2012.
    Rehearing Denied Aug. 31, 2012.

      T.A. Borowski, Jr., J. Scott Duncan, and Darryl Steve Traylor, Jr., of Borowski & Duncan, P.A., Pensacola, for Appellants.
    Richard T. Petitt and Adam M. Wolfe of Petitt Wolfe Craine Worrell Porter LLC, Tampa; Edward P. Fleming and R. Todd Harris of McDonald, Fleming, Moorhead, Pensacola; Matthew C. Hoffman, Pensacola; Todd M. LaDoucer, Pensacola; Larry A. Wright and William H. Green, DeFun-iak Springs; Wade Wallace, Miramar Beach; and Michael Wm. Mead, Ft. Walton, for Appellee.
   ROBERTS, J.

This appeal is a case of first impression resulting from unique circumstances involving electronic public records. Appellants Michael and Bonnie Mayfield (the Mayfields) and appellant Branch Banking and Trust Company (BB & T) seek reversal of a summary final judgment of foreclosure and argue that their title and mortgage to the property in question prevails over that of the appellee, First City Bank of Florida (First City). Although the appellants are in an unfortunate position that they did not create, we affirm because the trial court did not err in its construction of Chapter 695.

In October 2009, the Mayfields purchased real property (hereinafter Lot 2) in Walton County and received a warranty deed on Lot 2 from Bluewater Real Estate Investments, LLC (Bluewater). Simultaneously, the Mayfields granted a mortgage on Lot 2 to Old National Bank that was subsequently acquired by BB & T. The Mayfields’ deed and mortgage were filed with the clerk of Walton County who recorded both documents in the official records on November 2, 2009.

Unbeknownst to the appellants, title to Lot 2 had been conveyed and a prior mortgage executed on the property. In 2006, Bluewater conveyed Lot 2 to Wright & Associates of Northwest Florida (W & A). W & A simultaneously granted a mortgage on Lot 2 to First City. The W & A deed and First City mortgage were filed with the clerk of Walton County for recording. After receiving the documents for recording, the clerk opened a recording transaction in the computer and affixed an official register book and page number on the hard copies of the W & A deed and First City mortgage so as to record the documents in the official records on July 6, 2006. Shortly after entering the documents in the computer, the clerk independently realized that she had made an error in the recording process and voided the W & A deed and First City mortgage from the official records. The clerk intended to re-record the aforesaid documents after correcting the error, but failed to do so and mistakenly recorded similar instruments concerning another parcel of property instead. Thereafter, the hard copies of the W & A deed and First City mortgage bearing the official register book and page numbers were returned to the parties. However, in the Walton County electronic official records, the corresponding book and page numbers showed that the documents were voided. Once a document is voided, it no longer appears in the official records or the index to the official records and cannot be found by a person conducting a search of the official records. Thus, except for a brief period of approximately 73 minutes on July 6, 2006, the W & A deed and First City mortgage did not appear in the official records of Walton County. Furthermore, only during this window of time could a member of the general public have discovered the W & A deed and First City mortgage.

In 2010, First City filed for foreclosure on Lot 2 due to a loan payment default by W & A. The Mayfields and Old National were named as defendants. The Mayfields moved for summary judgment based on their contention that they were bona fide purchasers without notice, and, therefore, their interests prevailed over that of First City. First City also moved for summary judgment arguing that it fully complied with the recording statute, and, as a result, the Mayfields and BB & T were placed on constructive notice of the First City mortgage. In granting a summary final judgment of foreclosure in favor of First City, the trial court found that, although the W & A deed and First City mortgage were voided from the public records, they were recorded in accordance with section 695.11, Florida Statutes (2011). The trial court further found that, because the documents were recorded, they provided constructive notice such that the Mayfields and BB & T were not entitled to the protection of section 695.01, Florida Statutes (2011).

On appeal, the parties dispute whether constructive notice could attach when the W & A deed and First City mortgage appeared in the official records for 73 minutes before being completely eradicated due to the clerk’s error. The appellants rely on section 695.01 and argue that it imposes a requirement that an instrument presently “be” in the public records in order to impart constructive notice.

Section 695.01 provides, in part:

(l)No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law....

Section 695.01 is a “notice” recording statute, the primary purpose of which is to protect subsequent purchasers (including mortgagees and creditors) against claims arising from prior unrecorded instruments. See Argent Mortgage Co., LLC v. Wachovia Bank, N.A., 52 So.3d 796, 799 (Fla. 5th DCA 2010). In order to prevail under section 695.01, the bona fide purchaser must be without notice, in this case, constructive notice.

In Sapp v. Warner, the Supreme Court defined constructive notice as “notice imputed to a person not having actual notice; for example, such as would be imputed under the recording statutes to persons dealing with property subject to those statutes.” 105 Fla. 245, 141 So. 124, 127 (Fla.1932). An examination of Florida case law reveals that courts have generally concluded that, when a party complies with the recording statute, constructive notice attaches and will not be destroyed by errors committed by the clerk.

For example, in First National Bank of Brooksville v. Evans, the appellant/mortgagee complied with the recording statute by filing a chattel mortgage for record, but the same was not recorded until later due to an omission by the clerk. 100 Fla. 740, 130 So. 18, 20 (1930). The mortgage lien was recorded by the clerk on the day an attachment lien on the same property was levied. Id. In determining whether the lien of the chattel mortgage was entitled to priority over the attachment lien, the Supreme Court held:

It was not the fault of the mortgagee, the appellant here, that the mortgage was not actually spread upon the record until the day the attachment was levied. Appellant had complied with the recording act in so far as it was -within its power, when it filed the chattel mortgage for record, and its lien cannot be affected by the omission of the clerk to record the mortgage as soon as it was filed.... Indeed, to hold that creditors and purchasers did not have constructive notice until the instrument was actually recorded would be to nullify our statute which reads as follows:
‘All instruments relating to real and personal property which are authorized or required to be recorded shall be deemed to be recorded from the time the same are filed with the officer whose duty it is to record the same.’ Section 5708(3830), Compiled General Laws of Florida 1927.

Id.

Similarly, in Federal Land Bank of Columbia v. Dekle, the Supreme Court held that, in states with statutes like section 3830, Revised General Statutes of Florida 1920, (section 5708, Compiled General Laws of Florida 1927), it was “generally held that constructive notice of the subject-matter of the instrument takes place from the date it is placed with the recording officer to be recorded, and that the efficacy of such notice will not be destroyed if errors are made in the recording.” 108 Fla. 555, 148 So. 756, 758 (Fla.1933).

The current version of section 695.11, provides:

All instruments which are authorized or required to be recorded in the office of the clerk of the circuit court of any county in the State of Florida, and which are to be recorded in the “Official Records” as provided for under s. 28.222, and which are filed for recording on or after the effective date of this act, shall be deemed to have been officially accepted by the said officer, and officially recorded, at the time she or he affixed thereon the consecutive official register numbers required under s. 28.222, and at such time shall be notice to all persons. The sequence of such official numbers shall determine the priority of recordation. An instrument bearing the lower number in the then-current series of numbers shall have priority over any instrument bearing a higher number in the same series.

Under this current version, the courts have continued to find that constructive notice attaches upon compliance with the recording statute. For example, in Anderson v. North Florida Production Credit Association, Anderson purchased property in Franklin County in 1985 and secured a mortgage on said property. 642 So.2d 88, 89 (Fla. 1st DCA 1994). Unknown to Anderson at the time, a prior mortgage had been executed on the property in favor of North Florida Production Credit Association (North Florida). Id. The prior mortgage was recorded in 1983 and was improperly indexed by the clerk. Id. The circuit court found in favor of North Florida, concluding that indexing was not an essential element of recording and priority of competing claims was determined by section 695.11. Id. This Court affirmed, finding that, under section 695.11, an instrument was deemed officially recorded when accepted by the clerk and given official register numbers. Id. This Court found that priority was not contingent upon indexing and the plain language of section 695.11 provided the sequence of official numbers determined the priority of recordation. Id.

In Orix Financial Services, Inc. v. MacLeod, Orix recorded a judgment lien on real property in Dixie County that was later acquired by the MacLeods. 977 So.2d 658 (Fla. 1st DCA 2008). Orix sought to foreclose on its judgment lien, and the trial court entered summary judgment in favor of the MacLeods. Id. This Court reversed, stating:

We adhere to the reasoning of the Anderson court. In Anderson, this court viewed the dictates of section 695.11, Florida Statutes, as unambiguous. See also Fed. Land Bank of Columbia v. Dekle, 108 Fla. 555, 148 So. 756 (1938). The statute provides that official recordation occurs at such time as the office of the clerk of the circuit court affixes to an instrument the official register numbers required by law “and at such time shall be notice to all persons.” § 695.11, Fla. Stat. (1995).

Id.

In light of the foregoing line of cases, we find the unambiguous language of section 695.11 controls such that constructive notice attached at the time the W & A deed and First City mortgage were recorded on July 6, 2006. Although the appellants suggest that these documents had to remain in the official records to impart constructive notice, we find no such requirement in section 695.11. Section 695.01 requires that, to be good and effectual against bona fide purchasers, a doeument must “be recorded according to law.” The W & A deed and First City mortgage were recorded according to law.

We recognize the harshness of the result in the instant case where the appellants are innocent parties. Nonetheless, the appellants’ remedy, if any, may lie against the clerk, who can make no claim of sovereign immunity. See e.g., Orix, 977 So.2d at 658; First Am. Title Ins. Co. of St. Lucie County, Inc. v. Dixon, 603 So.2d 562 (Fla. 4th DCA 1992).

WETHERELL and ROWE, JJ., concur.

      . As the subsequent purchaser of the note and mortgage, BB & T intervened in the foreclosure action.

      . In 1935, the Legislature amended section 3830, Revised General Statutes of Florida 1920, by adding the final clause, “and as so recorded and transcribed upon the record shall be notice to all persons." Thereafter, notice was imparted after documents are recorded and not after documents are filed for recording.


text:
    Alexander BASULTO-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-1628.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2012.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   SUAREZ, J.

Alexander Basulto-Rodriguez appeals from his conviction for trafficking in cannabis in violation of section 893.135(l)(a), Florida Statutes (2008), based on his presence in a home containing a marijuana hydroponics operation. We affirm.

Police received a tip about possible drug activity at a certain address. After a few days of surveillance and after having obtained a warrant, the police forcibly entered the home. The record shows that the windows and doors were fully shuttered and sealed; the police had to pry open the front door to enter the house. Inside, they found approximately 250 marijuana plants growing in plain view, with the associated high-intensity lamps and hydroponic growing equipment. The police heard scuffling; Basulto-Rodriguez and his associate were found hiding in the attic, and refused to come down when ordered to by the police. They were apprehended when they fell through the attic in an attempt to escape. Basulto-Rodriguez’s theory of defense was that he and his associate were in the house to burglarize it when the police coincidentally happened to enter the house and apprehend them.

At the conclusion of the State’s case, the defense moved for judgment of acquittal, arguing that, because there was no evidence tying Basulto-Rodriguez to the contraband or the premises, his mere presence in the house was insufficient evidence of guilt. The trial court denied the motion. At the charging conference, the defense requested a modification of the standard jury instruction on trafficking to follow the instruction on constructive possession in jointly occupied premises as discussed in Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007). The substituted language would instruct that,- in order to convict, the State must establish constructive possession of the contraband by showing that Basulto-Rodriguez had dominion and control over the contraband, that he knew the contraband was in his presence, and that he had knowledge of the illicit nature of the contraband. The State objected, and the trial court proposed its own modified instruction providing that the defendant could be found to possess the contraband if he “exercised dominion and control” over it, where the premises in which the contraband was found are jointly occupied by both offenders. The trial court declined to give the full Mitchell instruction on constructive possession, and the jury ultimately found Basulto-Rodriguez guilty as charged.

Basulto-Rodriquez argues that the Mitchell instructions apply where the premises are found not to be in exclusive control of the occupants, and in those circumstances the State is required to establish the defendant’s knowledge of the presence of the contraband, the illegal nature of the contraband, as well as his ability to exercise dominion and control over it when the possession of the contraband is joint, as between the defendant and his associate. But the facts of this case are distinguishable from those in Mitchell. In Mitchell, the defendant was not present in the house when the contraband was discovered, and the contraband was not in plain view. The Mitchell court explains that, “the specially requested instruction, unlike the standard instructions, instructs the jury that the elements of knowledge and ability to control may not be inferred from the mere fact of joint possession of the premises where contraband is found.” Mitchell, 958 So.2d at 500; see also Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009) (holding that, if the site where the contraband is found is in joint, rather than exclusive, possession, a defendant’s knowledge of the contraband’s presence and his ability to control it cannot be inferred merely from the defendant’s proximity to the contraband). The Mitchell court acknowledged, however, that, “where joint possession of the premises is shown, the knowledge element may be met by contraband in plain view in the common areas of the premises.” Mitchell, 958 So.2d at 500. In Basulto-Rodriguez’s case, it is undisputed in the record that the cultivated marijuana plants were in plain view throughout the house, and thus the standard, unmodified jury instructions regarding. constructive possession of the contraband adequately addressed the element of knowledge. Further, the court’s slight modification of the standard jury instructions to include the element from Mitchell of “dominion and control” over the jointly possessed contraband did not render the instructions erroneous or insufficient under the circumstances presented here. We conclude that the trial court’s modification of the standard jury instruction was not error.

The appellant further asserts that the trial court erred when it failed to grant his motion for judgment of acquittal, arguing that the State’s evidence of the defendant’s dominion and control over the contraband was insufficient to sustain the conviction. Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred. See Campbell v. State, 577 So.2d 932, 985 (Fla.1991). In a wholly circumstantial evidence case such as this, a special standard of review applies. “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). In such cases, the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant’s theory of events. Id. at 189. If the State introduces such evidence, then the jury must decide whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Davis v. State, 90 So.2d 629, 631-32 (Fla.1956); Perez v. State, 565 So.2d 743 (Fla. 3d DCA 1990). The standard for review of a denial of a motion for judgment of acquittal is not whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis other than guilt, but rather whether the jury must reasonably so conclude. Perez, 565 So.2d at 744. We find sufficient evidence in the record to contradict the defendant’s theory of innocence and to support the denial of his motion for judgment of acquittal.

Affirmed.

      . There was no evidence introduced to link the defendant to the house, the plants or grow equipment. There was no evidence that the defendant owned the house or the car parked out front. There was also no evidence that the house had been broken into when the police arrived to execute the search warrant.

      . In Mitchell, the standard jury instruction on possession reads:
      To "possess" means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.
      Possession may be actual or constructive. Actual possession means
      (a) the thing is in the hand of or on the person, or
      (b) the thing is in a container in the hand of or on the person, or
      (c)the thing is so close as to be within ready reach and is under the control of the person.
      Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.
      Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
      If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person's (1) control over the thing, (2) knowledge that the thing was within the person's presence, and (3) knowledge of the illicit nature of the thing. Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article, [emphasis in the original].
      If a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed.
      If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.
      The defendant in Mitchell proposed to delete the bolded language regarding joint possession of an article and to substitute the following:
      To establish constructive possession of a controlled substance, the State must show that [defendant] had dominion and control over the contraband, that he had knowledge that the contraband was within his presence, and that he had knowledge of the illicit nature of the contraband. If the premises on which the contraband is found are in joint, rather than exclusive possession of [defendant], knowledge of the presence of the contraband on the premises and [defendant’s] ability to maintain control over it will not be inferred. The State must establish knowledge and [defendant’s] ability to maintain control over it by independent proof of [defendant’s] actual knowledge, or evidence of incriminating statements and circumstances other than mere location of the substance.

      . The State had to establish that the Appellant knew of the presence of the contraband on or about the premises and had the ability to maintain dominion and control over it. § 893.101(1)-(2), Fla. Stat. (2006) (eliminating the defendant’s knowledge of the illicit nature of a controlled substance as an element of the offense the State is required to prove, and designating the lack of such knowledge as an affirmative defense to the offenses in the chapter). See Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009).

      . The trial court modified the standard jury instructions on trafficking to read:

      Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article if he exercised dominion and control over the contraband. ... If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed unless you find that he exercised dominion and control over the contraband.

      . We review de novo the trial court's denial of a motion for JO A, to determine solely whether the evidence is legally sufficient. Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010); see Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In reviewing the denial of the motion, we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party. See Williams v. State, 967 So.2d 735, 755 (Fla.2007).