text:
    Donna M. BAUDANZA, n/k/a Donna M. Dunne, Appellant, v. Dennis BAUDANZA, Appellee.
    No. 4D10-4068.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellant.
    No appearance for appellee.
   WARNER, J.

Appellant, Donna M. Baudanza, timely appeals the circuit court’s order closing her case for lack of jurisdiction. Because the case involved a final judgment of adoption, over which the court had retained jurisdiction, as well as a marital settlement agreement regarding visitation and child support, the court concluded that its family division did not have jurisdiction, and that the appellant’s motions for enforcement and contempt should be heard in the adoption court. We hold, however, that the circuit court has jurisdiction and therefore the court erred in closing the case for lack of jurisdiction.

Appellant and appellee, Dennis Baudan-za, divorced in 2006 in a case filed in Broward County Circuit Court Family Division. At the time of the divorce, the two parties entered into a Marital Settlement Agreement, which, inter alia, set up custody for their minor son and ordered appel-lee to pay to appellant $1,267.00 per month in child support.

After the divorce, appellant married Kenneth J. Dunne. Appellant and appel-lee then entered into the Post Judgment Agreement — Modification of the Final Judgment and Marital Settlement Agreement, in which it was agreed that: Dunne would file for formal adoption of the child; appellee would pay $633.50 monthly in child support (half of the original amount); appellee would continue payments on a life insurance policy; and appellee would have access to his son for life.

Consistent with the Post Judgment Agreement, the parties filed for adoption under a new case number in Broward County. The final order of adoption stated that all of appellee’s parental rights were terminated. The court did not retain jurisdiction for any other purpose in the judgment. In the dissolution action, the court ratified and incorporated the Post Judgment Agreement by final order in which it “retains jurisdiction of the parties and the subject matter hereof, and for the entry of such further orders as the Court deems necessary.”

About nine months later, in the dissolution action, the appellee filed a motion for relief from the final order incorporating the Post Judgment Agreement, essentially alleging that the appellant had precluded him from seeing his son and contending that because the adoption judgment terminated his rights, he was no longer required to provide child support. Countering that motion, appellant filed a motion for contempt because of appellee’s nonpayment of the child support under the Post Judgment Agreement, which prompted appellee to file a motion for modification of the child support based upon changed circumstances.

The court referred the motions to a magistrate who, after a hearing, made recommendations to enforce the agreement requiring the payment of child support, although it did not determine one of appel-lee’s defenses, namely appellee’s competency to enter into the Post Judgment Agreement. Appellee filed objections to the report, contending that the agreement was unenforceable and void as a matter of law because of the adoption of the child by the step-father. He noted that he could not enforce his rights to visitation because of the adoption. Likewise, he argued, the appellant should not be entitled to require child support from him. Thus, appellee disclaimed both the benefits and the responsibilities of the Post Judgment Agreement by claiming that it is unenforceable as to him.

Instead of ruling on the issues in the magistrate’s report, the family court judge determined that she had no jurisdiction and closed the case. The order stated that, “as a matter of law, the contract and subsequent adoption only closed the family case. All proceedings are elsewhere — either adoption or civil court.” This appeal followed.

“Whether a court has subject matter jurisdiction is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005). “Subject matter jurisdiction is ‘the power of the court to adjudicate the class of cases to which the particular case belongs.’ ” Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001) (quoting VL Orlando Bld,g. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956, 957 (Fla. 4th DCA 2000)). “[Ejvery judge of the circuit court possesses the full jurisdiction of that court in his or her circuit and ... the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits’ judicial business.” Maugeri v. Plourde, 396 So.2d 1215, 1217 (Fla. 3d DCA 1981) (citing In Interest of Peterson, 364 So.2d 98 (Fla. 4th DCA 1978)). As this Court stated in Peterson:

A judge in the probate division or the juvenile division or the civil division or the criminal division has the authority and jurisdiction to hear cases involving child custody or dependency. The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge’s jurisdiction.

Peterson, 364 So.2d at 99 (emphasis added).

Thus, even though the child was the subject of adoption, the judge sitting in the family division would have authority to rule on issues connected to the agreements reached in those proceedings. In fact, the court reserved jurisdiction of the parties and subject matter in the final order incorporating the Post Judgment Agreement. On the other hand, no jurisdiction was reserved in the Final Judgment of Adoption. Therefore, the only case in which the issues regarding the Post Judgment Agreement could be litigated at this point would be in front of the court retaining jurisdiction for that purpose.

The circuit court has been asked to determine the validity and enforceability of the agreement in light of the adoption of the child. The court has jurisdiction to make those determinations. We therefore reverse and remand for the court to conduct further proceedings in this matter.

DAMOORGIAN and GERBER, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    Luis E. VERDECIA, Appellant, v. ALL FOUNTAINS AND WATERFALLS, INC., a Florida profit corporation, and George J. Criscione, individually, Appellees.
    No. 4D10-3638.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 27, 2012.
    Roderick F. Coleman and Cory S. Cara-no of Coleman & Associates, P.A., Boca Raton, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, and Philip M. Warren of Philip M. Warren, P.A., Pompano Beach, for appellee All Fountains and Waterfalls, Inc.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

MAY, C.J., STEVENSON and GROSS, JJ., concur.


author: PER CURIAM.

text:
    Kelvin McCARTY, Appellant, v. Oral O. MARTIN, Lindon Cameron and PV Holding Corp., Appellees.
    No. 4D08-2992.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.
    Rehearing Denied Feb. 22, 2012.

      Craig A. Rubinstein of Katzman, Was-serman, Bennardini & Rubinstein, P.A., Boca Raton, for appellant.
    Philip Glatzer of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for Appellee-PV Holding Corp.
   PER CURIAM.

Affirmed. See Vargas v. Enterprise Leasing Co., 60 So.3d 1037 (Fla.2011).

TAYLOR, HAZOURI and GERBER, JJ., concur.


text:
    Dominique HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0081.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2012.
    Dominique Hall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, CLARK, and WETHERELL, JJ., concur.


author: ROTHENBERG, J. SUAREZ, J.

text:
    MIAMI-DADE COUNTY and Sergeant Patricia Sedano, Appellants, v. Ahmed ASAD, Noel Rivera, and Tony Garcia, Appellees.
    No. 3D07-363.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.

      R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric K Gressman, Assistant County Attorney, for appellant Miami-Dade County; Teri Guttman Valdes, for appellant Sergeant Patricia Sedaño.
    DeFabio & Fenn and Leonard P. Fenn, for appellees.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   On Motion for Rehearing

ROTHENBERG, J.

The appellants, Miami-Dade County (“the County”) and Sergeant Patricia Se-daño (“Sgt. Sedaño”), the defendants below (collectively, “the Defendants”), appeal the final judgment of false arrest entered in favor of the appellees, Ahmed Asad, Tony Garcia, and Noel Rivera (collectively, “the Plaintiffs”). On March 11, 2009, this Court issued an opinion affirming (J. Roth-enberg, dissenting). The Defendants seek rehearing, rehearing en banc, or certification to the Florida Supreme Court. Because we conclude that the Defendants’ arguments are well taken, we grant rehearing, withdraw the previously filed opinion, and issue the following opinion in its stead.

The Plaintiffs were arrested for assault with a firearm and as principals to an armed burglary with a battery. Rivera was additionally arrested for doing business as a bondsman without a license. These arrests stemmed from the vicious beating of Daniel Walker, an innocent victim, during the execution of an arrest warrant for Shalresia Tomlin by seven or eight bondsmen. It is undisputed that Mr. Walker, who was unaware an arrest warrant had been issued against Ms. Tomlin, was providing transportation for Ms. Tomlin when the vehicle he was driving was stopped by the bondsmen. Walker was then pulled out of his vehicle and severely beaten by the bondsmen although he offered no resistance, presented no threat, and did not interfere with the execution of the warrant.

The Plaintiffs were arrested for their involvement in this attack, but the charges were ultimately dismissed. Thereafter, the Plaintiffs filed a civil lawsuit against Sgt. Sedaño, the arresting officer, and her employer, the County, asserting claims for false arrest, malicious prosecution, and violation of the Plaintiffs’ federal civil rights.

Prior to trial, the trial court granted summary judgment in favor of the County as to the Plaintiffs’ federal civil rights claims, but denied Sgt. Sedano’s and the County’s motions for summary judgment as to the remaining claims. At the conclusion of the evidentiary portion of the trial, the Defendants moved for a directed verdict as to the Plaintiffs’ malicious prosecution claims. The trial court denied the motion. The jury returned verdicts in favor of the Defendants as to the civil rights and the malicious prosecution claims, and in favor of the Plaintiffs as to the false arrest claims, awarding $94,800 to Garcia, $128,910 to Asad, and $88,482 to Rivera. The Defendants subsequently filed a motion for a new trial, which the trial court denied; and the Defendants’ appeal followed.

The Defendants contend the trial court erred in: (1) denying their pre-trial motions for summary judgment as to the malicious prosecution claims; (2) permitting the Plaintiffs to introduce evidence relevant to a claim of malicious prosecution (a claim the Plaintiffs knew they could not prove), but inadmissible and highly prejudicial as to the false arrest claims; (3) denying their motion for a directed verdict as to the malicious prosecution claims; (4) allowing the jury to consider inadmissible and highly prejudicial evidence in deciding the false arrest claims; and (5) denying their motion for a new trial. We agree.

The Plaintiffs presented no evidence of malice, an essential element of the crime of malicious prosecution, and in fact, the Plaintiffs’ own expert admitted at trial, and counsel for the Plaintiffs admit on appeal, that there was no evidence that Sgt. Sedaño acted with malice, and therefore Sgt. Sedaño was immune from liability as a matter of law. Thus, the trial court erred in denying the Defendants’ motions for summary judgment and for a directed verdict as to the malicious prosecution claims. Additionally, since much of the evidence introduced at trial was only admissible to prove the malicious prosecution claims, and was also irrelevant, inadmissible, and prejudicial as to the false arrest claims, the trial court erred in: (1) failing to instruct the jury that it must not consider that evidence in reaching its verdict on the false arrest claims; and (2) not granting the Defendants a new trial, where counsel for the Plaintiffs made the inadmissible, highly prejudicial evidence a feature of the trial.

STANDARD OF REVIEW

The trial court’s evidentiary rulings are subject to an abuse of discretion standard of review. See H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347 (Fla. 3d DCA 2007) (“We review discretionary issues involving the admission of evidence ... for abuse of discretion.”); Hayes v. Wal-Mart Stores, Inc., 933 So.2d 124, 126 (Fla. 4th DCA 2006) (holding that the trial court’s ruling on admissibility of evidence will not be reversed on appeal absent an abuse of discretion). In reviewing a trial court’s denial of a motion for a directed verdict, an appellate court must review the evidence in the light most favorable to the nonmoving party, and must reverse “if there is ‘no evidence upon which the jury could legally base a verdict’ in favor of the non-moving party.” Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006) (quoting Floyd v. Video Barn, Inc., 538 So.2d 1322, 1325 (Fla. 1st DCA 1989)); see also Schreidell v. Shoter, 500 So.2d 228, 232 (Fla. 3d DCA 1986) (“A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party. Therefore, no factual determination is required, and judgment must be entered for the movant as a matter of law.”) (citations omitted). The denial of the Defendants’ motion for new trial is reviewed for an abuse of discretion. See Southwin, Inc. v. Verde, 806 So.2d 586, 587 (Fla. 3d DCA 2002) (“The standard of review for the denial of a motion for new trial is whether or not the trial court abused its discretion.”); Seaboard Sys. R.R., Inc. v. Peeples, 475 So.2d 916, 917 (Fla. 2d DCA 1985) (“The standard for review of the denial of a motion for new trial is whether or not the trial judge abused his discretion.”).

THE TRIAL COURT ERRED IN ALLOWING THE PLAINTIFFS TO PROCEED WITH THEIR MALICIOUS PROSECUTION CLAIMS AND IN DENYING THE DEFENDANTS’ MOTION FOR A DIRECTED VERDICT

The Defendants moved for summary judgment prior to trial and moved for a directed verdict during trial as to the Plaintiffs’ malicious prosecution claims. The trial court denied both motions and permitted: (1) the Plaintiffs to introduce evidence admissible as to the malicious prosecution claims, but inadmissible as to the false arrest claims; (2) the jury to improperly consider this evidence in deciding the false arrest claims; and (3) the jury to improperly assign and calculate damages on the false arrest claims based on evidence inadmissible as to those claims. These errors denied the Defendants their right to a fair trial.

A. The Plaintiffs presented no evidence of malice, an essential element of malicious prosecution

The law in Florida is well settled that a malicious prosecution action requires the plaintiff to prove all of the following six elements: (1) a criminal or civil judicial proceeding was commenced against the plaintiff; (2) the proceeding was instigated by the defendant in the malicious prosecution action; (3) the proceeding ended in the plaintiffs favor; (4) the proceeding was instigated with malice; (5) the defendant lacked probable cause; and (6) the plaintiff was damaged. Kalt v. Dollar Rent-A-Car, 422 So.2d 1031, 1032 (Fla. 3d DCA 1982); see also Adams v. Whitfield,, 290 So.2d 49, 51 (Fla.1974). “The absence of any one of these elements will defeat a malicious prosecution action.” Kalt, 422 So.2d at 1032 (emphasis added). Malice is a fact to be proven by the plaintiff as it is “a necessary ingredient of the charge of malicious prosecution” and it is not synonymous with want of probable cause. White v. Miami Home Milk Producers Ass’n, 143 Fla. 518, 197 So. 125, 126 (1940) (emphasis added). “Malice is not only an essential element of malicious prosecution but it is the gist of this cause of action.” Wilson v. O’Neal, 118 So.2d 101, 105 (Fla. 1st DCA 1960) (emphasis added).

The Plaintiffs presented absolutely no evidence of malice. In fact, the Plaintiffs’ own expert, Philip Sweeting, admitted that Sgt. Sedaño acted without malice. The Plaintiffs were not surprised by Mr. Sweeting’s testimony because he unequivocally testified in his videotaped testimony, prior to trial, that there was no malice. Thus, the Plaintiffs should not, in good faith, have pursued their malicious prosecution claims, and the trial court erred in denying the Defendants’ motion for summary judgment and their subsequent motion for a directed verdict as to the malicious prosecution claims.

B. Sgt. Sedaño was insulated from a malicious prosecution claim as a matter of law

It is undisputed that Sgt. Sedaño contacted and consulted with the State Attorney’s Office prior to making any arrests in this case. The Assistant State Attorney with whom Sgt. Sedaño conferred concluded that Sgt. Sedaño had probable cause to arrest the Plaintiffs. Moreover, Sgt. Sedaño relied on the advice of the Assistant State Attorney, and the State Attorney’s Office made all of the charging decisions. The Plaintiffs’ counsel, who represented the Plaintiffs at trial and in this appeal, admits in his answer brief that “[t]he State Attorney’s charging decision insulated Sgt. Sedaño from liability for malicious prosecution.” The Plaintiffs’ concession on appeal is troubling as it is clear they were in possession of this information well before the trial. Sgt. Se-dano’s immunity from liability for malicious prosecution is well supported by the record.

Counsel for Sgt. Sedaño told the jury in his opening statement that it was the Assistant State Attorney, not Sgt. Sedaño, who made the decision to prosecute the Plaintiffs:

All the efforts from the get-go, Sergeant Sedaño contacted the State Attorney’s office.
Sergeant Sedaño doesn’t keep these gentlemen in jail for months. The prosecutor does.
The evidence will show that they’re asking for all these monies, but the prosecutor made the decision to go forward, despite them having attorneys. She made the decision, the prosecutor in this case, to proceed.
They’re suing her [Sgt. Sedaño] for something called malicious prosecution. They got to prove she is malicious. They’ve got no evidence, so Sergeant Sedaño shouldn’t even be here.
The prosecutor made the decision to prosecute.
Now causation, that’s something you have to prove: that Sergeant Sedaño or the County caused damages.
No, again, the state attorney’s office, separate from the County, completely separate from Sergeant Sedaño, made the decision to keep them in for months.
All this tuberculosis, all this damages of attorney’s fees and so forth, that is the prosecutor’s decision, not Sergeant Sedano’s, not the County’s.
Sergeant Sedaño again, in sum, conclusion, spoke to the state attorney, conferred with the state attorney. It was confirmed with them it was probable cause.
Sergeant Sedaño isn’t a judge, but the state attorney indicated there was probable cause and she proceeded accordingly-
Mr. Fenn presumes to know what in a hypothetical world a judge would do, but the state attorney who was on the ease at that time indicated there was probable cause.
The evidence will be that Sergeant Sedaño checked with the state attorney; that at all times she had probable cause.
There was no malice whatsoever on the part of Sergeant Sedaño. State attorney’s office made the decision to keep these people in jail.

Consistent with opening statements, Sgt. Sedaño testified that she conferred with the Assistant State Attorney “from beginning to end.”

Q: Explain to the ladies and gentlemen of the jury what contact you had with the state attorney regarding this case, particularly in terms of reviewing the probable cause for arrest.
A: I spoke with the assistant state attorney regarding my case from beginning to end. I conferred with her. We reviewed the arrest prior to making the actual physical arrests, we reviewed it together.
Q: At any point in time did she indicate that you didn’t have probable cause to make the arrests?
A: No.
Q: At any point in time did she indicate she wanted to terminate the prosecution to you?
A: No.
Q: Once Shalresia Tomlin signed the back of that [photograph] saying she was sure that these gentlemen, Mr. Asad, Mr. Rivera, Mr. Garcia, were involved in the beating, what’s your obligation at that point as a police officer?
A: Based on her testimony and based on the victim’s testimony and based on her positive identification of the subjects, I have — that establishes probable cause to make a felony arrest.
Q: And you gave the original photo lineups and the arrest affidavits, all of that was turned over to the prosecutor?
A: That’s correct.
Q: From then on it’s the prosecutor’s decision whether to go forward, is that correct?
A: Yes, that’s correct.
Q: Did you review step by step everything you did with that state attorney?
A: Yes, I did.
Q: Tell us about your dealings with the state attorney in this case.... What kind of contact did you have with them regarding Mr. Asad, Mr. Rivera and Mr. Garcia?
A: When I initially received this investigation, usually we don’t meet with the state attorney when we make an arrest on a case until they give us a subpoena for a pre-file conference, which is the time they review the case. It has to be within a certain time frame. But because of the totality of the case and the number of subjects involved, I called the state attorney’s office and requested to speak to a state attorney to help me with the case, to review it before it even went to that stage.

Sgt. Sedaño testified that although she had taken a sworn statement from Ms. Tomlin at the jail on the day of the incident, she brought her to the State Attorney’s Office prior to arresting the Plaintiffs, and Ms. Tomlin was interviewed by and provided the Assistant State Attorney with another sworn statement.

Kathryn Slye, the Assistant State Attorney who was assigned the case involving the beating of Mr. Walker, testified in the civil trial. Ms. Slye testified that she began working on this case prior to any charges being filed. Ms. Slye explained it was her responsibility as the prosecutor to review all of the evidence and make the charging decisions, and in this case she went over all of the documents “in detail, great detail,” before making the charging decisions. A copy of the document she generated reflecting her filing decisions was actually introduced into evidence as Defense Exhibit “J,” and she explained:

This is the document that comes when— when all the paperwork finally comes in to the prosecutor and a filing decision has to be made, at that point this is one of the documents that, actually I choose which charges, the actual charges the State of Florida is going to file against a particular defendant.

Ms. Slye testified that the detective brought her all of the documents, reports, statements, and lineups, which she reviewed before making a charging decision, and that this was done earlier than in other cases. As a result, she testified that she spent “extra time with [Sgt. Sedaño] and with others to make sure that [she] had all the appropriate information before things were charged.” She unequivocally stated, “I made the charging decision and filed the charges against the individuals.”

Lastly, Lt. Ivan Rodriguez was called as a witness by the defense and provided expert testimony, without objection, that Sgt. Sedaño followed County policies and procedures throughout her investigation. He testified that Sgt. Sedaño was working with the State Attorney’s Office while investigating the case; when Sgt. Sedaño concluded that she had probable cause to make the arrests, she presented her case file to the State Attorney’s Office; and the arrests were made after the State Attorney’s Office found that there was probable cause.

Thus, the record is abundantly clear that Sgt. Sedaño consulted with the Assistant State Attorney throughout her investigation, and the Assistant State Attorney: reviewed all of the evidence; determined that probable cause existed to arrest the Plaintiffs in connection with the beating of Mr. Walker; determined whether there was sufficient evidence to prosecute the case and on what charges; filed the charges; and proceeded with the criminal prosecution of the case. The trial court therefore erred in denying the Defendants’ motion for a directed verdict as to those claims.

We also conclude that these arguments were preserved for appeal as counsel for the Defendants argued in his motion for a directed verdict as follows:

[T]he Plaintiffs failed to prove any type of malice against Sergeant Sedaño. That’s critical as to all the claims against her. Their own expert says there was no malice.... He must prove by a preponderance of the evidence that there was — the defendant acted with malice. There’s no proof of that.... [T]hey’ve tried the case without showing malice, Judge.

Counsel for the Defendants additionally argued, citing to section 768.28(7), Florida Statutes (1999), that “the prosecutor was the cause of the damages.” Because the Plaintiffs presented no evidence of Sgt. Sedano’s malice; the unrefuted evidence presented was that Sgt. Sedaño consulted with the Assistant State Attorney prior to arresting the Plaintiffs; and the Assistant State Attorney made the charging decisions in this case, the trial court erred in denying the Defendants’ motion for directed verdict, and the issue was preserved for appeal.

BASED ON THE OBVIOUS AND SUBSTANTIAL PREJUDICE, THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS’ MOTION FOR A NEW TRIAL

The Plaintiffs’ decision to present the malicious prosecution claims to the jury, despite the fact they had absolutely no evidence to support these claims, denied the Defendants their right to a fair trial. By proceeding with their malicious prosecution claims, the Plaintiffs were able to introduce otherwise inadmissible evidence and make otherwise improper arguments to the jury, and the jury was permitted to consider and allocate damages based on evidence inadmissible as to the false arrest claims.

The Plaintiffs were permitted to introduce, over defense objection, that the Assistant State Attorney subsequently dismissed the charges against the Plaintiffs. While this evidence is relevant in a malicious prosecution action, because one of the elements the Plaintiffs must prove in a malicious prosecution claim is that the charge was terminated in the Plaintiffs’ favor, it was not relevant in a false arrest action, which turns on whether the officer possessed probable cause to make the arrest, not on what occurred after the arrest. “Probable cause is evaluated from the viewpoint of a prudent cautious police officer on the scene at the time of the arrest.” State v. Riehl, 504 So.2d 798, 800 (Fla. 2d DCA 1987) (emphasis added). “It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause.” McCoy v. State, 565 So.2d 860, 861 (Fla. 2d DCA 1990) (emphasis added) (quoting 1 W.R. LaFave, Search and Seizure § 3.2(d) (2d ed. 1987)). Events that occur subsequent to the arrest are irrelevant in a false arrest claim because whether the plaintiff was falsely arrested turns on whether there was probable cause at the time of the arrest, and subsequent events cannot remove the probable cause that existed at the time of the arrest. McCoy, 565 So.2d at 861; Dodds v. State, 434 So.2d 940, 942 (Fla. 4th DCA 1983); see also United States v. Covelli, 738 F.2d 847, 853-54 (7th Cir.1984) (finding that an arrest for passing a counterfeit bill was lawful notwithstanding the bill turned out to be legitimate).

The highly prejudicial error in admitting evidence that the criminal charges against the Plaintiffs were ultimately dismissed was compounded when counsel for the Plaintiffs argued this evidence in his closing argument and the trial court improperly instructed the jury that they could consider this factor in determining whether probable cause existed. Also compounding this error was the introduction of the following evidence, which was only relevant and admissible as to the malicious prosecution claims and inadmissible and improperly considered by the jury regarding the false arrest claims: (1) Asad’s later submission of alibi witnesses; and (2) the attorney’s fees incurred by the Plaintiffs in defending the criminal cases.

The jury’s consideration of Asad’s post-arrest alibi defense to the charges and the attorney’s fees incurred after the Plaintiffs were released from custody was error for the same reason the evidence of the State’s dismissal of the charges was error: events subsequent to the arrest are not relevant to a false arrest claim because the issue is whether probable cause existed at the time of the arrest. See Brodnichi v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.1996) (holding that even if the defendant asserts an alibi defense prior to arrest, a police officer is not required to investigate a defendant’s alibi before making a probable cause determination); see also City of St. Petersburg v. Hackman, 672 So.2d 42, 44 (Fla. 2d DCA 1996) (holding that while a plaintiff may recover reasonable expenses, including attorneys’ fees incurred to secure his release from the illegal restraint, attorneys’ fees incurred after being released and prior to the State Attorney’s decision not to prosecute the case are not recoverable in a false arrest claim); see also City of Miami Beach v. Bretagna, 190 So.2d 364, 365 (Fla. 3d DCA 1966) (quoting Fid. & Deposit Co. of Md. v. Adkins, 222 Ala. 17, 130 So. 552 (1930)) (citation omitted), wherein, this Court stated:

It is well settled that plaintiffs, in actions for false imprisonment, where the damages are specially claimed, may recover for any reasonable and necessary expense incurred as a result of the unlawful imprisonment, including attorney’s fees for services in procuring his discharge. But such fees for defending the plaintiff against the prosecution of the charge, while recoverable in an action for malicious prosecution, are not recoverable in an action for false imprisonment, unless such services are necessary to secure the plaintiffs discharge from the illegal restraint.
The evidence is without dispute that the plaintiff was admitted to bail soon after his confinement in jail, and the fee expended in procuring the bail and his discharge from imprisonment, on principles above stated, was proper element of damages, [b]ut attorney’s fees for defending him against the prosecution incurred after his discharge from imprisonment were not proper elements of damages, and the court erred in admitting such evidence over defendant’s objection.

Because the Plaintiffs possessed no evidence of malice and admit that the State Attorney’s charging decision insulated Sgt. Sedaño as a matter of law from being held liable for malicious prosecution, the Plaintiffs’ introduction of the malicious prosecution action in these proceedings, which allowed them to introduce the evidence previously discussed, was improper. The introduction of this inadmissible evidence, the trial court’s failure to grant a directed verdict as to the malicious prosecution claims, and the trial court’s failure to instruct the jury that it must not consider this evidence as to the false arrest claims, prejudiced the Defendants and denied them their right to a fair trial. The prejudice was compounded by the trial court’s instructions to the jury, over defense objection, that it could consider this evidence in determining the false arrest claims. The trial court therefore erred in denying the Defendants’ motions for a new trial on the false arrest claims.

THE FALSE ARREST CLAIMS

Although the Defendants are entitled to a new trial as to the Plaintiffs’ false arrest claims, we instruct the trial court to reconsider the viability of the false arrest claims based on the exclusion of the inadmissible evidence and the unrebutted admissible evidence.

False arrest is “the unlawful restraint of a person against that person’s will.” Willingham v. City of Orlando, 929 So.2d 43, 48. (Fla. 5th DCA 2006). Probable cause is an affirmative defense to a false arrest claim. Mailly v. Jenne, 867 So.2d 1250, 1251 (Fla. 4th DCA 2004); Jackson v. Navarro, 665 So.2d 340, 342 (Fla. 4th DCA 1995). Probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. Mailly, 867 So.2d at 1251; Fla. Game & Freshwater Fish Comm’n v. Dockery, 676 So.2d 471, 474 (Fla. 1st DCA 1996). Probable cause must be judged by the facts that existed at the time of the arrest, not evidence subsequently learned or provided to the prosecution. Mailly, 867 So.2d at 1251 (“Probable cause is judged by the facts and legal state of affairs that existed at the time of the arrest.”); Fla. Game, 676 So.2d at 474 (“Hindsight should not be used to determine whether a prior arrest or search was made with probable cause. Events that occur subsequent to the arrest cannot remove the probable cause that existed at the time of the arrest.”) (citations omitted) (emphasis added); McCoy, 565 So.2d at 861 (holding that hindsight should not be used to determine whether a prior arrest or search was made with probable cause); Dodds, 434 So.2d at 942 (holding that events that occur subsequent to the arrest cannot remove the probable cause that existed at the time of the arrest). “[A]n identification or a report from a single credible victim or eyewitness can provide the basis for probable cause .... ” City of St. Peters-burg v. Austrino, 898 So.2d 955, 960 (Fla. 2d DCA 2005) (emphasis added).

When the facts material to a probable cause determination are undisputed, the existence of probable cause is for the court to decide as a matter of law. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1357 (Fla.1994); Austrino, 898 So.2d at 962. The material facts, which are not in dispute, are as follows.

It is undisputed that prior to the arrest of the Plaintiffs, Sgt. Sedano’s investigation revealed that Albert Scaletti (“Scalet-ti”), a licensed bondsman, sought and obtained the assistance of other bondsmen to effectuate the arrest of Ms. Tomlin, who had allegedly violated the conditions of her release on bail. Scaletti, with the assistance of his confederates, drove up in a burgundy car next to Mr. Walker’s car as he was transporting Ms. Tomlin to her cousin’s house. Scaletti, who was seated in the front seat of the burgundy car, pointed a 9mm firearm at Mr. Walker, and ordered Mr. Walker to pull over, saying “[p]ull the f — ing car over, N-!” The burgundy car then cut Mr. Walker off, forcibly causing him to stop in the middle of the street, while a second vehicle with the remainder of Scaletti’s confederates pulled behind Mr. Walker’s car blocking him in. Mr. Walker was not the subject of the warrant and the bonding company had no legal authority over Mr. Walker.

All of the men in the two cars, seven or eight in total, exited the two vehicles with their guns drawn and pointed them at Mr. Walker. One of the armed bondsmen opened Mr. Walker’s car door. Mr. Scal-etti then reached into Mr. Walker’s car, grabbed him by the neck, and hit him in the mouth with his gun “with all of his strength,” dislodging eight of Mr. Walker’s teeth. It is undisputed that Sgt. Sedano’s investigation revealed that several of the bondsmen kicked and beat Mr. Walker, and made racial comments while Mr. Walker was being held at gunpoint by the other bondsmen. It is also undisputed that Mr. Walker was unarmed and provided no resistance; Ms. Tomlin was taken into custody by the bondsmen without her offering any resistance; the beating of Mr. Walker, who offered no resistance, continued after Ms. Tomlin had been taken into custody; and Mr. Walker was left bleeding in the street after the bondsmen left with Ms. Tomlin.

It is also undisputed that Ms. Tomlin told Sgt. Sedaño that she could positively identity all of the men involved. In an attempt to identify the subjects, Sgt. Seda-ño obtained a copy of Ms. Tomlin’s appearance bond. Her investigation revealed that James Viola owned the bonding company that was charged with executing the warrant, and Viola also owned the company that insured this bonding company and others. When Sgt. Sedaño learned that Scaletti, a licensed bondsman, who worked for Viola, had called the police to inform them that he and other bondsmen were going to pick up Ms. Tomlin, she requested the names of all bondsmen insured by Viola’s insurance company from the Department of Insurance. The Plaintiffs’ names were among the names provided by the Department of Insurance. Thereafter, Sgt. Sedaño prepared photographic lineups that included photographs of the Plaintiffs and photographs of individuals unrelated to the bonding business. Both Ms. Tomlin and Mr. Walker positively identified Scal-etti, and Ms. Tomlin positively identified, without any hesitation, the Plaintiffs. Sgt. Sedano’s investigation also revealed that Rivera’s bailbonds license had been revoked in 1996, and therefore, he was not a licensed bondsman at the time of these events.

Prior to making any arrests, Sgt. Seda-ño spoke with the Assistant State Attorney assigned to the case. The Assistant State Attorney agreed there was probable cause to arrest Scaletti for armed burglary and the aggravated battery of Mr. Walker. The Assistant State Attorney also found that based on Ms. Tomlin’s positive identifications of Asad, Garcia, and Rivera, and Mr. Walker’s tentative identifications, probable cause existed to arrest the Plaintiffs and to charge them as principals in the first degree with armed occupied burglary with a battery under section 810.02, Florida Statutes (1999), and aggravated assault with a firearm under section 784.021, Florida Statutes (1999), because all of the bondsmen had their guns drawn and pointed at Mr. Walker while he was dragged from his vehicle and beaten by Scaletti and several of the bondsmen.

It should also be noted that Scaletti was positively identified and arrested on July 14, 1999, before any of the Plaintiffs had been identified. While being transported to the station to be interviewed, he told the detectives that the individuals involved “were all in the same line of work” and they were just doing their jobs. When he was advised of his rights at the station, he declined to speak to the detectives and, therefore, they were unable to obtain the names of the other bondsmen involved. Detective Sedaño did, however, receive telephone calls from several lawyers who stated that they represented some of the bail bondsmen involved in the incident, but each refused to name their clients or to bring them in for questioning, and none provided any information to Sgt. Sedaño to assist her with her investigation.

Although Mr. Walker testified at trial that all of the bondsmen beat him and he positively identified the Plaintiffs at trial as active participants, his identifications were only tentative prior to the Plaintiffs’ arrests. Sgt. Sedaño, however, testified in her deposition and at trial that Ms. Tomlin positively identified the Plaintiffs and specified they were active participants prior to the arrests. However, because Sgt. Seda-no’s notes and reports do not specifically state that all of the bondsmen beat Mr. Walker, and because the trial court must view the evidence in the light most favorable to the Plaintiffs, and only consider the material undisputed evidence, the trial court’s analysis must be based on the following premises: all of the bondsmen were armed; they all held Mr. Walker at gunpoint while he was forcibly removed from his car and beaten; not all of the bondsmen actively participated in the beating; Ms. Tomlin positively identified the Plaintiffs as being present during these events; and Mr. Walker tentatively identified the Plaintiffs as being active participants.

In Florida, it is well-established that mere presence and knowledge that a crime is being committed are insufficient to prove participation in a criminal offense. The undisputed facts Sgt. Sedaño relied on in arresting the Plaintiffs, however, were that all of the bondsmen were armed with firearms; all of them exited their cars with their guns drawn; and all of them, including the Plaintiffs, continued to point their firearms at Mr. Walker while Sealetti hit Mr. Walker in the mouth with a firearm while Mr. Walker was seated in his vehicle. All of the bondsmen continued to point their firearms at Mr. Walker while he was dragged out of his vehicle and beaten by Sealetti and some of the bondsmen.

Under Florida law, both the actor and those who aid and abet in the commission of a crime are principals in the first degree. Staten v. State, 519 So.2d 622, 624 (Fla.1988). The principal statute provides as follows:

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

§ 777.011, Fla. Stat. (1999) (emphasis added).

Although mere presence at the scene and knowledge that an offense is being committed does not equate to participation with criminal intent, West v. State, 585 So.2d 489, 441 (Fla. 4th DCA 1991, the evidence Sgt. Sedaño had at the time she arrested the Plaintiffs, when considered in the light most favorable to the Plaintiffs, was that the Plaintiffs, who accompanied Sealetti to pick up Ms. Tomlin, aided Sealetti when he committed armed burglary with a battery and an aggravated assault against Mr. Walker.

Mr. Walker was stopped and detained by Sealetti and the Plaintiffs, who had no legal authority over him. After Mr. Walker was stopped and while he was being restrained by all of the bondsmen, who exited the vehicles with guns drawn and pointed at him, he was attacked by Sealetti, forcibly removed from his vehicle, and beaten severely by several of the armed bondsmen, while being taunted with racial epithets by the other bondsmen. Mr. Walker was unarmed, offered no resistance, and did nothing to interfere with the execution of the warrant. Whether the Plaintiffs personally kicked and beat Mr. Walker, or the Plaintiffs stood guard over Mr. Walker and Ms. Tomlin while: (1) one of the bondsmen reached into Mr. Walker’s car and opened the door; (2) Mr. Scaletti hit Mr. Walker in the mouth with a gun, grabbed him by the neck, and pulled him from his car; and (3) several other bondsmen beat Mr. Walker, is immaterial, because in either event, the Plaintiffs were principals to these criminal acts. Because Sgt. Sedano’s pre-arrest investigation revealed that the Plaintiffs assisted Scaletti in the stop of Mr. Walker, over whom they had no lawful authority, and at a minimum, stood guard over Mr. Walker with guns drawn and pointed at Mr. Walker while Scaletti and several of the other bondsmen kicked and beat Mr. Walker, who was unarmed and offered no resistance, provided sufficient evidence to establish probable cause that the Plaintiffs did “some act to assist” Scaletti in committing these crimes. See Terry v. State, 668 So.2d 954, 964-65 (Fla.1996) (finding that while Terry did not commit the aggravated assault, robbery, or murder, because he provided the handgun used in the assault and the assault furthered the robbery and murder by keeping the victims separated, he was properly convicted as a principal to these offenses); Dayes v. State, 869 So.2d 58, 59 (Fla. 3d DCA 2004) (finding that because Dayes drove the co-defendant to the encounter with the victims and handed a gun to the co-defendant who shot the victim, Dayes was guilty as a principal to the shooting); A.D.W. v. State, 667 So.2d 485 (Fla. 2d DCA 1996) (upholding the defendant’s burglary conviction as a principal based upon his presence with the group who broke into the vehicle and the evidence that he accompanied the group as they went from car to car, burglarizing them); A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991) (finding that although A.B.G. did not personally steal condoms from the store, because he entered the store with the other boys who proceeded directly to the condom display, stood elbow-to-elbow with the boy who stuffed the condoms into his pocket, and kept looking at the display and then towards the front of the store, there was sufficient evidence to support a finding that he intended that the crime be committed and assisted in its commission); Norris v. State, 360 So.2d 476 (Fla. 3d DCA 1978); Owens v. State, 289 So.2d 472, 473 (Fla. 2d DCA 1974) (upholding Owens’ conviction as a principal to the beating of the victim even though there was no evidence to indicate that he was one of the individuals who struck the victim, where Owens entered the restroom with Lavon and Dicks, he was present when the beating by Lavon and Dicks took place, and he left with Lavon and Dicks thereafter).

The evidence supporting Sgt. Se-dano’s decision to arrest the Plaintiffs as principals in the instant case need not reach the elevated standard required to sustain a conviction, as the standard of proof for probable cause only requires a probability of criminal activity. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). “[T]he nature of the [probable cause] determination itself ... does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands....” Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Probable cause “exists where an officer ‘has reasonable grounds to believe that the suspect has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction.’ ” Chavez v. State, 832 So.2d 730, 747 (Fla.2002) (quoting Blanco v. State, 452 So.2d 520, 523 (Fla.1984)); see also Mailly, 867 So.2d at 1251 (quoting Fla. Game, 676 So.2d at 474), which held as follows:

To show probable cause in a false arrest situation, it is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged; probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.

As the courts around this state have said, “[t]o establish probable cause, an officer is required to conduct a reasonable investigation, but the officer does not have to take every conceivable step to eliminate the possibility of convicting an innocent person[,]” City of Clearwater v. Williamson, 938 So.2d 985, 990 (Fla. 2d DCA 2006), and law enforcement officers are afforded some latitude for error. Austrino, 898 So.2d at 958 (citing Lee v. Geiger, 419 So.2d 717, 719 (Fla. 1st DCA 1982)). “[T]he receipt of information from someone who it seems reasonable to believe is telling the truth is adequate.” Williamson, 938 So.2d at 991 (quoting Weissman v. K-Mart Corp., 396 So.2d 1164, 1167 (Fla. 3d DCA 1981)).

CONCLUSION

Because the Plaintiffs neither possessed nor presented any evidence of malice, and they admit that Sgt. Sedaño was immune from a malicious prosecution action, the trial court erred in: (1) denying the Defendants’ motion for a directed verdict and submitting the Plaintiffs’ claims of malicious prosecution to the jury; (2) permitting the jury to consider the evidence only admissible to the Plaintiffs’ malicious prosecution claims when considering the evidence regarding the false arrest claims; and (3) permitting the jury to apportion damages based on this inadmissible evidence. These errors were compounded by the fact that counsel for the Plaintiffs made the evidence relevant to the malicious prosecution action a feature of the trial, which denied the Defendants their right to a fair trial. On remand, the trial court is instructed to reconsider the viability of the Plaintiffs’ false arrest claims in light of this opinion, the evidence presented, and the relevant case law.

Reversed and remanded with instructions.

CORTINAS, J., concurs.

SUAREZ, J.

(dissenting).

I respectfully dissent from the January 25, 2012 majority opinion for the reasons stated in the former March 11, 2009, majority opinion affirming the trial court’s judgments entered on the verdicts and post-verdict motions. I therefore adopt that opinion as my dissent.

      . While Sgt. Sedaño was not required to investigate Asad’s alibi defense, the record reflects that she investigated both his pre-arrest alibi defense and his post-arrest alibi defense. Pre-arrest, Asad claimed he was with his wife. Sgt. Sedaño's investigation revealed that Asad was not married. Post-arrest, Asad’s counsel provided Sgt. Sedaño with a list of witnesses he claimed would provide her with evidence that Asad was not present during the events in question. However, although Sgt. Sedaño went to the homes of each listed witness, left her card, asked them to call her, and called them, they refused to speak with her or to provide her with any information.

      . Sgt. Sedaño and Mr. Walker testified at trial that Mr. Walker also tentatively identified at least two of the Plaintiffs, and Mr. Walker testified that all of the men, including the Plaintiffs, beat him. Because the Plaintiffs called into dispute whether Mr. Walker, when interviewed by Sgt. Sedaño, told her that all of the men participated in the beating and that he had tentatively identified the Plaintiffs, and because we must consider the evidence in the light most favorable to the Plaintiffs, we do not consider these factors in determining whether, as a matter of law, Sgt. Sedaño possessed probable cause to arrest the Plaintiffs. Additionally, although Mr. Walker positively identified all three Plaintiffs at trial, because these identifications were made subsequent to the arrest of the Plaintiffs, these in-court identifications also are irrelevant to the issue of probable cause.


text:
    Charlene ROSA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3666.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Charlene Rosa, Fort Lauderdale, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Charlene Rosa appeals the order entered by the trial court denying her motion seeking post-conviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Prior to the entry of the order, Rosa filed a timely amended motion under rule 3.850, upon which the trial court did not rule. We remand this case to the trial court for further proceedings on Rosa’s remaining claims raised in her amended motion for post-conviction relief.

MAY, C.J., WARNER and HAZOURI, JJ., concur.


text:
    Atticus E. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3951.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Atticus E. Jones, Pahokee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Atticus E. Jones appeals the summary denial of his Rule 3.800(a) motion, which challenged the sufficiency of the evidence to support his conviction. Rule 3.800(a) cannot be used to challenge the conviction or the sufficiency of the evidence. See Edwards v. State, 35 So.3d 121 (Fla. 4th DCA 2010); Childers v. State, 782 So.2d 946 (Fla. 4th DCA 2001); Marshall v. State, 35 So.3d 121 (Fla. 4th DCA 2010).

Affirmed.

WARNER, POLEN and TAYLOR, JJ., concur.


author: PALMER, J.

text:
    Rico GLENN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1006.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Rico R. Glenn (defendant) appeals his judgment and sentence. Determining that the trial court erred in denying the defendant’s request for a jury instruction on justifiable use of non-deadly force, we reverse the defendant’s convictions of aggravated battery and one count of resisting an officer with violence. In all other respects, we affirm.

The defendant was charged with several counts, including aggravated battery causing great bodily harm (count 2) and resisting an officer with violence (count 3); both counts related to the defendant’s interaction with Officer Michael Holberg.

Holberg testified to the following version of the incident. The defendant drove his car into a lake. When Holberg arrived at the scene, he saw the defendant swimming away from the car. Holberg approached the defendant to see if he was okay. The defendant was incoherent and making sounds. As Holberg tried to put handcuffs on him, the defendant spun away and assumed a fighting stance. Hol-berg took out his baton and ordered the defendant to the ground. The defendant did not comply and tried to leave again. Holberg grabbed the defendant’s wrist, and he again spun away and assumed a fighting stance. Holberg believed that a fight was imminent so he struck the defendant with the baton four times. When Holberg struck him a fifth time with the baton, the defendant punched him in the temple, temporarily blinding him. The defendant then grabbed the baton and struck Holberg in the head with it.

According to the defendant’s version of the incident, when he surfaced from the lake, Holberg approached him and asked what happened. When the defendant started to tell him, Holberg told him to shut up. The defendant put his hands in the air, and Holberg hit him in the stomach with his baton twice. The defendant then punched Holberg in the face, took his baton, and threw it away.

Defense counsel requested a jury instruction on justifiable use of non-deadly force, arguing that the defendant’s version would support an inference of self-defense. The trial court refused the instruction.

A trial court’s rulings regarding jury instructions are reviewed for abuse of discretion. Morton Roofing, Inc. v. Prather, 864 So.2d 64, 68 (Fla. 5th DCA 2003); Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). The requested standard instruction stated in relevant part:

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the ... [injury to] (victim) resulted from the justifiable use of non-deadly force.
(Defendant) would be justified in using non-deadly force against (victim) if the following two facts are proved:
1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] ... against (victim’s) imminent use of unlawful force against the [defendant]....
2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.
A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] ..., but only to the extent [he] ... reasonably believes such force is necessary.
In deciding whether the defendant was justified in the use of non-deadly force, you must judge [him] ... by the circumstances by which [he] ... was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find [him] ... guilty if all the elements of the charge have been proved.

Fla. Std. Jury Instr. (Crim.) 3.6(g) (Jan. 6-8, 2010).

The defendant’s version of the incident was sufficient to support this instruction. “[W]here the evidence is inconclusive or conflicting, the failure of the trial judge to provide a charge which lays down standards for the jury to follow under varying permissible views of the evidence constitutes reversible error.” Barnes v. State, 93 So.2d 863, 864 (Fla.1957) (quoting Holley v. Kelley, 91 So.2d 862, 864 (Fla.1957)). In Barnes, the court wrote:

[T]he trial judge, in declining to give the charge requested by [the defendant], must have thought that [the defendant’s] testimony ... was, in all the circumstances, so improbable as to be unworthy of belief. But however improbable, it was not demonstrably false, and the trial judge invaded the province of the jury when he disregarded it.

Id. at 864-65. Thus, here the trial court erred in refusing to issue the instruction.

Accordingly, we reverse and remand for a new trial as to counts 2 and 3. As to all other counts, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

LAWSON and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    Anthony LOUZON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2590.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Kepler B. Funk, Keith F. Szachacz, and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC., Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Anthony Louzon was convicted, after a jury trial, of robbery with a weapon. Because of several improper comments made by the prosecutor during closing arguments, we are compelled to reverse.

The alleged victim, Mark Stallings, testified at trial that the robbery occurred at approximately 1:00 a.m. in a hotel parking lot. Stallings stated that he was in his car awaiting the arrival of Stephen Browne. According to Stallings, Browne was to repay him a debt. When Browne entered the front passenger seat of Stallings’ car, another male entered the seat directly behind Stallings, pointed a gun at Stallings’ head, and demanded Stallings’ money. When Stallings responded that he did not have any money, the individual then grabbed Stallings’ necklace and, along with Browne, fled into a waiting vehicle. Stall-ings wrote down the license plate number of the vehicle and called 9-1-1.

When subsequently interviewed by police, Browne and the driver of the awaiting vehicle (Chase Chandler) identified Louzon as the individual who had robbed Stallings. Browne and Chandler later entered pleas to the charges against them and, pursuant to their respective plea agreements, testified at Louzon’s trial. Browne generally confirmed Stallings’ version of the robbery, but added that he was meeting Stall-ings for the purpose of purchasing drugs. In addition to stealing the necklace, Browne stated that Louzon had also taken six Oxycodone pills during the robbery. Prior to trial, when presented with a photo array by the police, Stallings identified Louzon as the individual who had robbed him. However, at trial Stallings testified that when he selected Louzon’s photo from the photo array, he was only choosing the photo that looked the most similar to the man who had robbed him. He denied that Louzon was involved in the robbery.

During closing arguments, the prosecutor made several comments implying that Stallings had been threatened by Louzon to change his testimony:

We come to December 9, 2009, there’s an evidentiary hearing, well, actually before the evidentiary hearing the evidence is that Mr. Stallings, who at that time in December of '09 is locked up in the jailhouse. He’s locked up in the jailhouse, and he’s locked up in the jailhouse surrounded by other people in jail. Now, I asked him point blank, were you threatened when you were in jail, and he said no. But we know that all of a sudden he calls the defense attorney himself, Mr. Wagner, and he says, I’d like to recant my prior ID of Mr. Louzon. I don’t think I can identify him anymore. And he tells us it was a ping [sic] of conscious [sic]. I’m sitting here in jail, five months after the fact, and I just don’t feel right about it.

After the trial court’s denial of Louzon’s objection and request for a mistrial, the prosecutor, over a continuing objection, continued this line of argument:

Wouldn’t it strike you as kind of funny that if Mr. Stallings is genuinely having a ping [sic] of conscious [sic], I don’t feel right about my ID, does he call the head detective in the case? No. Does he call the head prosecutor? No. He calls the defense attorney. How does he get the defense attorney's phone number in jail? There is a clear inference that he got the phone number the same time he got the threat that he says he never got.
So he’s totally watered down and retracted from his original ID. What I was talking about is I fully concede. When confronted about a threat, he said, no, I had never been threatened. Using your common sense, again, if he had been threatened and he really was scared, he’s not going to divulge the threat itself because that’s a violation — if you’re threatened and you’re not going to testify, you’re not going to tell anybody why you’re not going to testify because that defeats the purpose. He’s scared. Of course, he’s scared. He’s testifying against the man who put a gun to his head. He’s scared.

While a prosecutor is certainly entitled to point out the discrepancies and changes in a witness’ testimony, it is impermissible to suggest, without evidentiary support, that a witness has changed his or her testimony due to contact with the defendant and/or defense counsel. See Pen-alver v. State, 926 So.2d 1118, 1129 (Fla.2006); Tindal v. State, 803 So.2d 806, 810 (Fla. 4th DCA 2001); Jones v. State, 449 So.2d 313, 314-15 (Fla. 5th DCA 1984). The fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change his or her story. Herny v. State, 651 So.2d 1267, 1268 (Fla. 4th DCA 1995). As explained in Tindal, because the prosecutor is an agent of the State, such comments suggest that the prosecutor has unique knowledge that has not been presented to the jury. 803 So.2d at 810. Additionally, such comments are highly prejudicial because they imply that the defendant engaged in the separate criminal offenses of witness tampering and suborning perjury. Id.

In the instant case, without supporting evidence, the prosecutor suggested to the jury that it could infer that Stallings had been threatened and that such threat was made by or on behalf of Louzon. These comments were improper, prejudicial, and should not have been permitted by the trial court. See Penalver, Tindal; Henry; Jones.

Although unnecessary to our disposition of this appeal, we will briefly address the sentencing issue raised by Louz-on in the event that Louzon is ultimately convicted of a robbery offense. Louzon claims he was ineligible to be sentenced as a prison releasee reoffender (PRR) under section 775.082(9)(a) because the record failed to reflect that he had ever been physically in the custody of the Department of Corrections. Section 775.082(9)(a) defines a “prison releasee reoffender” as a person who commits an enumerated offense within three years after being “released from a state correctional facility operated by the Department of Corrections .... ” In the instant case, the record reflects that although Louzon was sentenced to prison in May 2009 on a prior felony offense, he was not physically transferred to the Department of Corrections. Louzon had 609 days credit for jail time served and, thus, his sentence was found to have been fully served. Louzon argues that in order to qualify for PRR sentencing under section 775.082(9)(a), he must have been physically present at, and then released from, a Department of Corrections facility. We reject this argument. When Louzon was sentenced to imprisonment in May 2009, he was placed in the legal custody of the Department of Corrections. Because of the jail time credit, he was released by the Department of Corrections from its legal custody. As we stated in Cassista v. State, 57 So.3d 265, 267 n. 1 (Fla. 5th DCA 2011), “If [an] offender’s state prison sentence expires while he or she is temporarily residing in a hospital or county jail, we would have no difficulty in concluding that the offender was constructively in a state prison facility when his sentence expired for PRR purposes.”

To accept Louzon’s argument would place form over substance and would be inconsistent with the Legislature’s clear intent to provide for a greater sentence for individuals who commit a qualifying offense within three years of completion of a previously imposed prison sentence. To accept Louzon’s argument would also mean that in order for the State to ensure that a defendant in Louzon’s situation was eligible for subsequent PRR sentencing, it would have to physically transfer an individual from jail to a Department of Corrections facility — where the individual would then be entitled to an immediate release. Courts should not construe a statute so as to achieve an absurd result. See Kasischke v. State, 991 So.2d 803, 818 (Fla.2008); Childers v. Cape Canaveral Hosp, Inc., 898 So.2d 973, 975 (Fla. 5th DCA 2005).

REVERSED and REMANDED for new trial.

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


author: GRIFFIN, J.

text:
    Ryan TROUT, Appellant, v. James APICELLA and Donald Medlar, et al., Appellees.
    No. 5D11-592.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Henry G. Gyden, of Swope, Rodante P.A., Tampa, for Appellant.
    Susan S. Oosting and J. Stephen O’Hara, Jr., of O’Hara Law Firm, Professional Association, Jacksonville, for Appel-lee.
   GRIFFIN, J.

Ryan Trout [“Trout”] seeks review of a summary final judgment entered in favor of Appellees, James Apicella [“Apicella”] and Donald Medlar [“Medlar”] [“collectively Appellees”] after the trial court concluded that a binding settlement agreement was formed between the parties. On appeal, Trout contends that the trial court erred in concluding that the parties entered into a binding settlement agreement. We agree and reverse.

Trout was seriously injured while a passenger in a truck operated by Apicella and owned by Medlar. The truck was insured by a Geico automobile insurance policy, issued to Medlar. The policy had a $100,000 limit for bodily injury liability per person, a $300,000 limit for bodily injury per occurrence, and a $50,000 limit for property damage liability. The Geico policy also provided uninsured motorist coverage and automobile medical payments coverage. Apicella was also covered by a Geico automobile insurance policy, which provided $100,000 in liability coverage for bodily injury damages.

A day after the accident, Geico forwarded a letter to Trout, enclosing a check for $100,000. The check was made payable to Trout and the hospital where he was receiving medical treatment. Also enclosed were proposed releases of all claims. Trout obtained counsel, Ronald K. Zim-met, Jr. [“Zimmet”], who sent a letter to Geico confirming his representation of Trout and requesting that Geico forward a statement, under oath, pursuant to section 627.4137, Florida Statutes, concerning available insurance. The next day, Geico sent a letter to Zimmet, enclosing an “Affidavit of Coverage” and a copy of the insured’s insurance policy. Also enclosed were two checks to Trout for $100,000 each, representing the policy limits of the bodily injury liability coverage under both Medlar and Apicella’s policies.

On April 8, 2008, a Geico representative sent a letter to Zimmet, enclosing amended proposed releases and stating that he was pleased the parties were able to reach an amicable settlement. In response, Zim-met wrote Geico advising that “NO SETTLEMENT HAD BEEN REACHED” and that much investigation and research remained undone. Zimmet also disputed Geico’s assertion that the new releases did not create any new terms or conditions, pointing out that the new release contained a new releasee, Richard Lecates, who was not on the original proposed release. On April 17, 2008, Zimmet sent a letter to Geico requesting a written statement that there was no excess or umbrella coverage for Apicella on this or any other policy.

Geico responded by correspondence to Zimmet that Medlar did not have any excess insurance on the vehicle. This letter also represented that a Geico representative had spoken with Medlar, who confirmed that he did not have any excess insurance on the vehicle involved in the loss, nor did he have an umbrella policy.

A few weeks later, Geico, again by correspondence, advised Zimmet that it had determined that Richard Lecates was not an insured on the policy and was not required to be on the release. The letter instructed Zimmet to revert to the previously provided original release.

On July 30, 2008, Zimmet wrote to Gei-co, stating that Trout wished to resolve his uninsured motorist claim. The letter requested that Geico tender all of the company’s available uninsured motorist benefits within fifteen days of the date of the letter if Geico wished to settle. The letter also asked that Geico advise him if the company waived its rights of subrogation. Geico denied this demand based on its assertion that Trout was not entitled to UM coverage.

Zimmet sent another letter to Geico on October 31, 2008, containing an offer to settle:

To begin with, according to the coverage itemization sheet you previously sent to my office, your company provides $10,000 of medical payments coverage under policy number 2011120652. However, I cannot verify the coverage from the insurance information that you sent to me or determine whether my client qualifies for the medical payments coverage. I have the attached coverage itemization sheet and a “Florida Family Automobile Insurance Policy” booklet so you can see what I have.
Since my client was a passenger in an insured vehicle, presumably he would be entitled to medical payment benefits. But, as happened with the uninsured motorist coverage, your company may have a different position.
I have also received your company’s replacement checks,.... If you need me to return the expired checks, please let me know.
With respect to the release, you and another claim representative previously sent over two separate sets of release forms. In order to avoid any misunderstanding, my client will only sign one release. So just send me a single bodily injury release of your insureds only without any additional language that would require my client to pay their defense costs for claims by third parties. If I have valid checks for all bodily injury liability insurance available to your insureds, along with that release and the complete statutory insurance disclosures, within fifteen days of this letter, my client will sign the release and those claims will be settled.

(Emphasis added).

Geico responded to Zimmet’s October 31, 2008, letter on November 10, 2008, addressing several points. First, Geico took the position that Trout was not eligible for medical payments coverage because he was not a relative of Medlar or Apicella. The letter also acknowledged that Geico had previously sent two valid checks totaling $200,000 ($100,000 for each policy). Enclosed with the letter was a single, proposed, combined release. The release enclosed with the letter was titled “RELEASE OF ALL CLAIMS,” and, indeed, this document provided that Trout was releasing Medlar and Apicella from “any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, on account of all injuries and damages, known and unknown, which have resulted or may in the future develop as a consequence of a motor vehicle accident that occurred at Volusia County on or about the 80th of March, 2008.” Finally, the letter stated:

Once again, not all release forms precisely fit the facts and circumstances of every claim. Should you have any questions about any aspect of the release terms, please call me immediately. You may also send me any suggested changes, additions or deletions with a short explanation of the basis of any change you suggest; or if you have a release that you desire to use, please forward it to me. We consider the enclosed proposed release a ministerial document which memorializes our settlement of this case on behalf of the insured party or parties. We do not consider the release a document which creates any new terms or conditions governing our resolution of your claim. If you feel there is any aspect of the enclosed document which does not reflect our settlement of your claim, please contact me immediately so that we can see that the document is revised to reflect the exact terms of our agreement.
Finally, I am enclosing another copy of the complete statutory disclosures requested for both policies. A copy of the policy and A54 is included with the disclosures.

(Emphasis added).

On December 3, 2008, Zimmet informed Geico by letter that Trout had proceeded with filing suit due to Geico’s failure to timely accept his offer to settle. In the letter, Zimmet explained that Geico did not accept Trout’s offer because the tendered release was a release for all claims, which was not what Trout offered and because Geico failed to include with its response letter of November 10th the required statutory disclosures.

After Trout filed suit, Appellees asserted the affirmative defense of settlement and release. A hearing was held on the cross-motions for summary judgment regarding the settlement affirmative defense. The trial court found that Geico properly accepted Trout’s offer in its November 10th response.

Both parties are in agreement that, in Florida, settlement agreements are governed by the law of contracts. See Nichols v. Hartford Ins. Co. of the Midwest, 834 So.2d 217, 219 (Fla. 1st DCA 2002); Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992). It is basic to Florida contract law that the acceptance of an offer that results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer. Nichols, 834 So.2d at 219; Chevene v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001). This is sometimes referred to as the “mirror image rule.” Montgomery v. English, 902 So.2d 836, 837 (Fla. 5th DCA 2005). Although the law favors settlement agreements and their enforcement, the evidence must nevertheless demonstrate that there was mutual agreement to the material settlement terms. See Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla.1985); Carroll v. Canvll, 532 So.2d 1109 (Fla. 4th DCA 1988).

Trout’s settlement offer was an offer for a unilateral contract that required performance by Geico.

With respect to the release, you and another claim representative previously sent over two separate sets of release forms. In order to avoid any misunderstanding, my client will only sign one release. So just send me a single bodily injury release of your insureds only without any additional language that would require my client to pay their defense costs for claims by third parties. If I have valid checks for all bodily injury liability insurance available to your insureds, along with that release and the complete statutory insurance disclosures, within fifteen days of this letter, my client will sign the release and those claims will be settled.

In granting summary judgment in favor of Geico, the trial court concluded that the proposed release of all claims was not a counter-offer because Geico’s November 10th letter indicated that Geico accepted the offer. The court particularly relied upon the language contained in the second paragraph of Geico’s letter that Geico was willing to change any of the wording within the release that Trout found objectionable or was willing to consider a release proposed by Trout. The trial court also rejected Trout’s argument that his reference to “complete statutory insurance disclosures” meant statutory affidavits of the insureds.

The crux of the trial court’s ruling is its conclusion that Geico could accept Trout’s offer by merely offering to perform, but the language of the offer is clear. Trout’s offer to settle his bodily injury claim required that Geico provide Trout with the following items within fifteen days of the date of the offer: 1) valid checks for all bodily injury liability insurance coverage; 2) one release for the bodily injury claim only that released Geico’s insureds without any indemnification language; and 3) the complete statutory insurance disclosures. The offer made clear that in order to accept the offer, Geico had to meet all of the terms of the offer, and only then would the bodily injury claim be settled. Performance was an essential requirement for the acceptance of Trout’s offer. Instead of performing, however, Geico proffered a release that did not just fail to meet the terms of Trout’s offer, it blatantly failed. Not even Geico contends that a “Release of All Claims” was what Trout had offered. Geico’s offer to consider any release amendment and explanation Trout might suggest was inadequate and the disclaimer of “new terms” ineffective. Whether, ultimately, the $200,000 in bodily injury coverage may prove to be the only available coverage is beside the point. Trout had the absolute right to make an offer that preserved other claims and his counsel was prudent to do so. The burden of redlining, revising, redrafting or annotating the non-compliant release was not within Trout’s offer. Geico’s offer (probably) to change the release was, at best, a promise to perform, which is not sufficient here to create a binding contract. We cannot credit Geico’s contention that Trout’s offer was ineffective to require performance because it did not explicitly identify itself as a unilateral contract. The language of the offer communicates how it is to be accepted.

This appeal is quite similar to another case we recently decided, Knowling v. Manavoglu, 73 So.3d 301 (Fla. 5th DCA 2011). In that case, Allstate Indemnity Company similarly purported to accept an offer to settle a claim. There, the offer required a “general BI release,” “ready for signature.” Allstate instead tendered a release of all claims and an indemnification agreement, accompanied by a letter containing language similar to Geico’s, expressing that they did not consider the release to be a document creating any new terms or conditions. We held that the release tendered by Allstate did not meet the dictates of the offer and reversed the trial court’s decision that a settlement had been reached. We reach the same conclusion here.

REVERSED and REMANDED.

SAWAYA and MONACO, JJ., concur.

      . The trial court entered summary judgment in favor of Geico, concluding that under the Medlar policy, the truck and attached trailer were one insured vehicle and not two separate vehicles. Trout has filed an appeal of that court order, which is still pending before this Court. See Trout v. James Apicella, Case No. 5D10-2015.

      . Also similar to the Knowling case, Trout contends that Geico failed to comply with his demand for the statutorily required insurance information in the form of affidavits of the insureds. As in Knowling, we do not need to reach that issue.


text:
    Richard LAMERTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2926.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Richard Lamerton (defendant) appeals his convictions and sentences entered by the trial court on one count of use of a child in a sexual performance and five counts of possession of child pornography. Finding no reversible error with regard to his convictions, we affirm them. However, remand is necessary for entry of a new probation order.

The defendant’s probation order included a condition that he have no contact with anyone under age 18 (condition 26). This condition is improperly broad. See Rowles v. State, 682 So.2d 1184 (Fla. 5th DCA 1996) (holding condition prohibiting contact with females under 16, without parent present, improperly broad).

Accordingly, we reverse the instant probation order and remand for the trial court to enter a new probation order.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, C.J., and EVANDER, J„ concur.

      . While this appeal was pending, the defendant raised this argument in a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2). During a hearing on the motion, the trial court verbally agreed with this argument. However, the court did not enter a new probation order, due to counsels’ assurance that an order was not necessary. Entry of a new probation order would have obviated the need for our remand.


author: TORPY, J.

text:
    Jerry STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1794.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Robert Wesley, Public Defender, and Joseph C. Flynn, III, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges his convictions and sentences for attempted burglary of a dwelling and resisting an officer without violence. We agree with Appellant that the lower court erred by admitting into evidence certain “tools” found in Appellant’s possession when he was apprehended shortly after the attempted burglary. The perpetrator gained entry through an open bathroom window and no property was taken from the residence. Therefore, the lower court improperly admitted Appellant’s duffle bag and some of its contents, as well as items found on Appellant’s person, because there was no evidence linking these items to the crime, either as instruments or fruits of the crime. See Lavallee v. State, 958 So.2d 509, 511 (Fla. 4th DCA 2007) (“[T]he evidence that appellant possessed a screwdriver and gloves shortly after the burglary, and most probably during the burglary, was irrelevant. There was simply no connection shown between appellant’s possession of the items and the crime charged.”). Accordingly, we reverse the attempted burglary conviction and remand for a new trial. We affirm the conviction for resisting arrest, concluding that the erroneous admission was harmless as it pertained to the resisting arrest conviction. See Simmons v. State, 552 So.2d 268 (Fla. 1st DCA 1989) (affirming convictions for sale of cocaine, but reversing and remanding for new trial conviction for possession with intent to sell as error only affected that conviction).

We expressly reject Appellant’s contention that a judgment of acquittal should have been granted.

AFFIRMED in part; REVERSED in part, and REMANDED.

SAWAYA and MONACO, JJ., concur.


text:
    STATE of Florida, Appellant, v. Roberto ROSARIO, Appellee.
    No. 5D10-4223.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The State appeals the Order vacating a jury verdict that found Roberto Rosario to be guilty of sexual battery on a physically helpless person in violation of section 794.01l(4)(a), Florida Statutes (2008). Rosario has not filed an answer brief. We reverse the Order because the jury verdict finding that Rosario did commit a sexual battery on the victim was not based on an erroneous jury instruction. See State v. Pate, 656 So.2d 1323, 1325 (Fla. 5th DCA 1995) (holding that pursuant to the definition of sexual battery in section 794.011(l)(h), Florida Statutes, “the state is not required to prove penetration in order to establish a sexual battery. Rather, ‘oral ... union with, the sexual organ of another ... ’ constitutes sexual battery” (quoting § 794.011(l)(h), Fla. Stat.)).

Accordingly, we reverse the Order under review and remand this case to the trial court to enter judgment in accord with the jury verdict and for sentencing.

REVERSED AND REMANDED.

SAWAYA, MONACO, and COHEN, JJ, concur.


text:
    Antonio CALDERON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-4265.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.
    James Russo, Public Defender and Judith L. Kinney, Chief Assistant Public Defender, Sanford, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2009-CF-2888-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, MONACO and COHEN, JJ., concur.


author: BLACK, Judge.

text:
    Melissa KING, Appellant, v. David KING, Appellee.
    No. 2D10-2564.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.
    Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando; and Abigail M. Johnston of The Marks Law Firm, P.A., Orlando; and Thomas D. Marks of The Marks Law Firm, Orlando (substituted as counsel of record), for Appellant.
    Gary E. Williams of The Law Firm for Family Law, Clearwater, for Appellee.
   BLACK, Judge.

Melissa King, the former wife, appeals the trial court’s order denying her motion for contempt and for enforcement of the parties’ marital settlement agreement. Finding it lacked jurisdiction, the court denied the former wife’s motion. We reverse.

In 2007, the trial court entered a final judgment that dissolved the parties’ eleven-year marriage. The final judgment specifically incorporated the terms of the parties’ marital settlement agreement (MSA) and further provided: “Except as to the dissolution of marriage granted in this Judgment, the Court specifically reserves jurisdiction to enforce provisions of this Judgment in all other respects,” and “[t]he Court reserves jurisdiction for further proceedings in the above styled cause of action.”

Two years later, in 2009, the former wife filed her motion for contempt and for enforcement of the MSA. The motion sought enforcement of specific provisions of the final judgment and the incorporated MSA, including the portion of the judgment that required the former husband to make interest payments on the equitable distribution award to the former wife until the award was paid in full or until the sale of the marital residence, whichever occurred first, as well as contempt for failure to comply with various support provisions within the judgment. At the hearing on the motion, it appears the former wife abandoned her claims for support and thus enforcement by contempt. The hearing proceeded, however, on the claim for enforcement of interest payment arrearages.

In denying the former wife’s motion for enforcement, the trial court found that it did not have jurisdiction under the terms of the final judgment and MSA to require the former husband to pay the former wife interest arrearages on the equitable distribution award. The order denying the motion provided: “The Court lost jurisdiction over the subject matter hereto upon the closing date of the former marital residence and the Former Wife’s remedies are limited to civil contract action.” This was error.

The payment of interest the former wife sought to enforce was contemplated and expressly included in both the MSA and final judgment in this case. See Self v. Self 907 So.2d 546, 548-49 (Fla. 2d DCA 2005). But see Damian v. Damian, 955 So.2d 1178, 1181-82 (Fla. 2d DCA 2007) (concluding the trial court exceeded its jurisdiction by modifying a final judgment where the judgment lacked a specific reservation of jurisdiction to do so); Rocha v. Mendonea, 35 So.3d 973, 976 (Fla. 3d DCA 2010) (concluding the trial court impermis-sibly modified a marital settlement agreement under the guise of enforcing it). The former wife’s motion was filed in the same court that entered the final judgment of dissolution of marriage. “The caption of the motion was substantially similar to the caption of the dissolution proceeding, and it bore the same case number as the case number that had been assigned to the dissolution proceeding.” Weaver v. Hotchkiss, 972 So.2d 1060, 1061 (Fla. 2d DCA 2008). At the time of the hearing on the motion, the former husband did not dispute the court’s jurisdiction. See id. at 1062. Thus, as in Weaver, “we do not understand how the circuit court reached the conclusion that it lacked jurisdiction in the matter. The circuit court had inherent jurisdiction to enforce the dissolution judgment.” Id.

We make no ruling as to whether the former husband is obligated to pay interest arrearages or whether the former wife is entitled to collect interest arrearages on the equitable distribution; we simply hold that the trial court has jurisdiction to consider the issues. Accordingly, we reverse the trial court’s order and remand this case with directions to consider the former wife’s motion for enforcement on its merits.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.

      . We note that if the trial court truly was without jurisdiction it should have dismissed the former wife's motion. See, e.g., Naples v. Naples, 967 So.2d 944, 946 n. 2 (Fla. 2d DCA 2007). A denial indicates consideration of the merits of a cause, and nothing in our record indicates that the trial court considered the merits of the former wife’s motion. Id.