author: KELLUM, Judge.

text:
    STATE of Alabama v. Dandre Shamar JEMISON.
    CR-09-0399.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.

      Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellant.
    Amy Hayes Naylor, Clanton, for appel-lee.
   On Application for Rehearing

KELLUM, Judge.

The opinion released on July 30, 2010, is withdrawn and the following opinion is substituted therefor.

Dandre Shamar Jemison was arrested and charged with one count of unlawful possession of a controlled substance — N-Benzylpiperazine — a violation of § 13A-12-212, Ala.Code 1975, and one count of driving while his license was suspended, a violation of § 32-6-19, Ala.Code 1975. Je-mison filed a motion to suppress the package of “Ecstasy” pills recovered by police during what Jemison alleged was an illegal detention and search. Following an evi-dentiary hearing, the circuit court granted Jemison’s motion to suppress. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s ruling.

The State presented the following evidence at the suppression hearing. On October 12, 2008, Clanton Police Officer David Clackley was patrolling the Second Avenue and Martin Luther King, Jr. Street area of Clanton to watch a residence reportedly involved in drug activity. Officer Clackley drove away from the area for a short period, and when he returned he saw a vehicle, later determined to be being driven by Jemison, drive away from the residence. Officer Clackley followed the vehicle approximately four blocks “just to see what the situation was and check on the status of the driver and see if there were any violations to make a traffic stop.” (R. 7.) Officer Clackley observed “a DVD player or some type of in-dash screen” in Jemison’s car, recorded Jemison’s license-plate number, and called in the license-plate number to a police dispatcher. According to Officer Clackley, he was about to initiate a traffic stop as the vehicle approached the end of the street and appeared to prepare to be making a right turn; however, Jemison abruptly pulled forward into the driveway of a house across the street, which it was later revealed belonged to Jemison’s uncle, and “bumped” a vehicle parked in the driveway in the process. Again, Officer Clackley did not initiate a traffic stop, but instead made a right turn and stopped his vehicle approximately 30 feet from the front door of the house. Officer Clackley testified that he believed Jemison pulled into the driveway because he knew a police vehicle was driving behind him; Officer Clackley wanted to “see if in fact that was [Jami-son’s] residence or whoever came to the door allowed him to come in or turn him away.” (R. 9.)

Jemison got out of the car, approached the front door of the house, and began looking in his pocket as if he were trying to locate a key. After a few moments, Jemison looked back over his shoulder at Officer Clackley and began walking toward the rear of the house. Office Clackley explained:

“At this time, I didn’t know if it was actually his house, whose house it was, or if any criminal acts had occurred prior to me getting there.
“I rolled my window down and I said, ‘Hey, man, do you live here? Can I talk to you for a second,’ to confirm that he lived there, make sure he wasn’t drunk or whatever the case may be, make sure he wasn’t fixing to break into the house, which is a possibility. And when I said that, he got real nervous and he picked up his pace. As he was walking he said, ‘Man, I got to go.’ I said, ‘I need to talk to you for a second and make sure you live here.’ He said, ‘Man, I got to go,’ and he took off running around the back of the house.”

(R. 11.) Officer Clackley ran after Jemi-son and caught up with him approximately four or five blocks from the house, then placed him in custody. By this time, another officer had arrived on scene and transported Jemison back to Jemison’s vehicle so that Officer Clackley could retrace the steps of Jemison’s flight. Officer Clackley explained that he retraced Jemi-son’s steps because

“[a]t this point, I wasn’t exactly sure what [Jemison’s] reason for running was. I knew he ran. I’ve been a police officer for ten years. I know that people don’t just run to be running. I wanted to go back, backtrack where we had ran. I started from where I caught him and check the area to see if there [was] any evidence [Jemison] disposed of, whether it be a gun, evidence of a burglary, a robbery, drugs, whatever.”

(R. 12.) While he was retracing their steps, Officer Clackley found a small plastic bag filled with small, different colored pills around the corner of the house approximately 20 feet from Jemison’s vehicle. Officer Clackley testified that although he did not see Jemison drop the bag of pills, the bag of pills was recovered along the route Jemison ran as he ran from the officer. The pills were later field-tested by the Department of Forensic Sciences and were determined to be Ecstasy, a controlled substance. Officer Clackley proceeded to search Jemison’s vehicle, in which he found approximately $9,000 in cash.

During the direct examination of Officer Clackley, the trial court questioned him about why he arrested Jemison. Officer Clackley explained that he arrested Jemi-son because he believed that Jemison’s flight down the center of a public street constituted disorderly conduct, specifically, “under the subsection of blocking or interrupting a pedestrian or vehicle or traffic in a public highway.” (R. 18.) Furthermore, Officer Clackley stated he wanted to determine “what, if any, criminal activity [Jemi-son] had partaken in prior to running from [Officer Clackley]” and “why exactly [Je-mison] did run.” (R. 18, 19.) When asked by the State if he would have continued with his investigatory stop even if he did not charge Jemison with disorderly conduct, Officer Clackley said, “Oh, yes, definitely. Could have been a stolen vehicle, could have just performed a robbery. Really I had no idea when he initially ran why exactly he was running.” (R. 20.) Officer Clackley admitted that when he initiated contact with Jemison, he believed Jemison “had committed, was committing, or was about to commit” some offense. (R. 21.)

When asked on cross-examination whether he stopped Jemison to investigate Jemison’s vehicle bumping the other vehicle parked in the driveway into which Je-mison pulled his car, Officer Clackley explained:

“The whole situation led me to believe that something was going on with him, whether he had been drunk, stolen vehicle, just committed domestic violence. I really had no clue as to what was going on. The bumping into the other vehicle was a major indicator to me something was going on in this situation.”

(R. 22.) Officer Clackley admitted that he did not reference the bumping of the parked vehicle in his incident report but explained that he did not do so because neither car was damaged. In asking for clarification regarding why Officer Clack-ley initiated contact with Jemison, Officer Clackley and defense counsel had the following exchange:

“[Defense counsel]: So tell me now, because I’m confused, what was the original basis upon which you had to initiate contact with my client? What was your reasoning?
“[Officer Clackley]: Like I said, it wasn’t a traffic stop. I simply asked him if I could speak with him. I never commanded him to stop and talk to me. When I asked, ‘Hey, man, can I talk to you a minute,’ he fled. In my experience, when people run from me upon a simple question—
“[Defense counsel]: You never ordered him to stop and talk to you?
“[Officer Clackley]: Once when we got on Taylor Avenue is when I started giving commands.
“[Defense counsel]: I’m trying to understand the disorderly conduct. If you had not instructed him that he had to stay there and talk with you and if there was no custodial situation, what was the basis upon your chase of him at this point?
“[Officer Clackley]: I have as much a right to run as he does. Once I observed him running in the highway, then he was violating the section that I charged him with, which was disorderly conduct. Up to that point we were both just going for a run.
“[Defense counsel]: Up to that point, you were just going for a run?
“[Officer Clackley]: Yes, ma’am. I was observing him.”

(R. 24-25.)

On December 16, 2009, the trial court granted Jemison’s motion to suppress without explanation. This appeal ensued.

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 90S So.2d 180, 181 (Ala.Crim.App.2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
“ ‘ “Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term “reasonable suspicion” as applied to an undisputed set of facts; the proper interpretation is a question of law.’
“State v. Hill, 690 So.2d at 1203-04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling.

Initially, we note that the circuit court offered no explanation in granting Jemi-son’s motion to suppress. In his motion to suppress, and again on appeal, Jemison argued that both the seizure of his person and the searches that yielded the bag of Ecstasy and the money in his vehicle violated his Fourth Amendment rights

I.

The State contends that the circuit court erred in granting Jemison’s motion to suppress because, it says, Officer Clackley in no way “unlawfully or illegally seize[d]” Jemison. (State’s brief, at 15.) However, Jemison argues that the circuit court properly suppressed the evidence seized in this case and directs this Court’s attention to “five points at which the individual constitutional rights and freedoms of Jemison intersect with the authority granted to law enforcement” that he says show an “overall unconstitutional and unreasonable encounter.” (Jemison’s brief, at 12, 32.) The first four points listed by Jemison relate to the facts leading up to Jemison’s arrest by Officer Clackley and question the legality of the seizure; the fifth point relates to the search of the yard in which the drugs were found and the search of Jemi-son’s car after his arrest.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court explained:

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate ?

392 U.S. at 22 (emphasis added). Additionally, in State v. Green, 992 So.2d 82 (Ala.Crim.App.2008), this Court stated:

“The United States Supreme Court in United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), stated:
“ ‘The Fourth Amendment requires “some minimal level of objective justification” for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,” Illinois v. Gates, 462 U.S. 213, 238 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544 (1985).’ ”

992 So.2d at 84.

Throughout his brief, Jemison highlights alleged inconsistencies and “holes” in Officer Clackley’s testimony in support of his contention that Officer Clackley failed to articulate a reasonable, objective basis for pursuing and ultimately detaining Jemison. In his fourth point, in which he challenges Officer Clackley’s eventual arrest of Jemison for disorderly conduct, Jemison alleges that the charge of disorderly conduct was “an afterthought.” (Jemison’s brief, at 21.) To the extent that Jemison contends that his stop and detention were pretextual and thus unconstitutional, we note that “[a]s long as the police officer is doing only what is objectively authorized and legally permitted, the officer’s subjective intent in doing it is irrelevant.” Ex parte Scarbrough, 621 So.2d 1006, 1010 (Ala.1993). Thus, we will not speculate as to Officer Clackley’s subjective intentions but will focus only on the reasonableness of his actions with respeGt to the objective factors observed over the course of the interaction between Officer Clackley and Jemison.

Finally, at the heart of Jemison’s various claims of Fourth Amendment infringement lies the argument that Officer Clackley’s targeting, pursuit, and eventual detention of Jemison were not based upon sufficient reasonable suspicion or probable cause but were based upon Officer Clackley’s “curiosity and broad range of suspicions unsupported by objective justifications.” (Jemi-son’s brief, at 45.) According to Jemison, the facts of this case could not have created within Officer Clackley the reasonable suspicion or probable cause necessary to conduct a lawful detention that comports with the requirements of the Fourth Amendment.

As we proceed through the events that culminated in Jemison’s arrest, we will continue to revert to the most pertinent inquiry a reviewing court must ask in analyzing the constitutionality of a police seizure: “[Wjould the facts available to the officer at the moment of the seizure or the search Warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry, 392 U.S. at 22. With this “man of reasonable caution” standard in mind, we turn to the events that culminated in Jemison’s arrest.

A.

Officer Clackley initially became interested in Jemison because he saw Jemi-son drive away from a house with a reputation for drug activity. This Court has recognized that the association of a suspect with a facility known or suspected of drug activity is a factor that may give rise to reasonable suspicion or probable cause. See Ex parte Kelley, 870 So.2d 711, 725 (Ala.2003) (officer’s background knowledge concerning the association of a facility with narcotics dealing was “legitimately included in his calculus of probable cause”). Thus, observing Jemison driving away from a house where drug activity was suspected, Officer Clackley decided to follow and watch Jemison; that decision was justified and reasonable.

Jemison attacks this factor within his first of his aforementioned five instances of infringement of Jemison’s Fourth Amendment rights. Here, Jemison relies on B.J.C. v. State, 992 So.2d 90 (Ala.Crim.App.2008), in arguing that whatever tip the police received regarding the drug activity at the house Officer Clackley was watching lacked the “indicia of reliability critical to allow the officer to infringe on the Fourth Amendment rights of Jemison.” (Jemison’s brief, at 12.) In B.J.C., this Court held that a Terry stop was constitutionally impermissible pursuant to Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), when the initial detention was based solely upon an anonymous tip and the tip lacked any “ ‘indicia of reliability as of the kind as contemplated in [Adams v. Williams, 407 U.S. 143 (1972),] and [Alabama v. White, 496 U.S. 325 (1990).]’” B.J.C., 992 So.2d at 94, quoting J.L., 529 U.S. at 274. At this point, Officer Clack-ley did not detain Jemison, nor did he ultimately detain Jemison based upon this tip alone; thus, the holding of B.J.C. has no bearing on this case. Accordingly, Je-mison’s first allegation of a constitutional infringement by Officer Clackley is merit-less.

B.

Next, we consider Officer Clackley’s observations regarding Jemison’s driving. Officer Clackley testified that he followed Jemison for approximately a quarter of a mile. As Jemison approached the end of the street, Officer Clackley explained that it appeared as if Jemison was going to make a right turn; instead, Jemison abruptly drove forward into a residential driveway, bumping a parked vehicle in the process. Officer Clackley believed that Jemison knew that Officer Clackley was following him. This Court has recognized that erratic or evasive driving is a factor that can be considered when determining whether an officer has reasonable suspicion. See Martin v. State, 529 So.2d 1032 (Ala.Crim.App.1988). After bumping the parked car, Jemison approached the house, knocked on the front door, looked over his shoulder at Officer Clackley, and began walking toward the rear of the house. At this point, Officer Clackley called out to Jemison to determine what Jemison was doing. Officer Clackley asked Jemison if he lived there, and he said that Jemison “got real nervous,” “picked up his pace,” and told Officer Clackley that he “had to go.” (R. 11.) Officer Clackley told Jemison that he needed to talk to him to “make sure you live here,” and Jemison again said he “had to go,” and then “took off running.” (R. 11.) This Court has repeatedly held that “ ‘nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.’ ” State v. McPherson, 892 So.2d 448, 454 (Ala.Crim.App.2004), quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). See also Smith v. State, 19 So.3d 912 (Ala.Crim.App.2009); W.D.H. v. State, 16 So.3d 121 (Ala.Crim.App.2008); and Camp v. State, 983 So.2d 1141 (Ala.Crim.App.2007) (all quoting Wardlow to support the same proposition). Because Jemison’s erratic driving, nervousness, and evasive behavior were all suspicious actions, Officer Clack-ley acted reasonably in continuing to investigate.

C.

According to Officer Clackley, after Jemison told him a second time that he had to go, Jemison took off in headlong flight away from Officer Clackley. In Wardlow, the United States Supreme Court observed that “[hjeadlong flight— wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is clearly suggestive of such.” 528 U.S. at 124-25. In Jemison’s third allegation he contends that he was well within his rights to “leave” after answering Officer Clackley’s questions. (Jemison’s brief, at 19.) Jemison relies upon Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), to justify his “picking up his pace” while leaving because, he says, he was free “to go on his way.” (Jemison’s brief, at 20.) As best we can understand, Jemison appears to argue that his exercising his right to terminate the interaction should in no way be considered suspicious or in no way would have justified a stop by Officer Clackley. However, the United States Supreme Court in Wardlow recognized that its holding was consistent with Royer in that “[fjlight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.” 528 U.S. at 125. Contrary to his assertion, Jemison’s decision to run from Officer Clackley was not akin to Jemison’s declining to answer questions and go on about his way. Jemison took off in headlong flight away from Officer Clackley, an action that would have, taking into consideration all the circumstances attendant to the situation, given Officer Clackley a reasonable suspicion that criminal activity was afoot. Accordingly, Jemison’s headlong flight away from Officer Clackley suggested that he was involved with some sort of criminal activity; thus, Officer Clackley was justified in pursuing Jemison to investigate further.

Throughout his first three allegations of constitutional violations, Jemison repeatedly contends that Officer Clackley’s purportedly inconsistent testimony evidenced no reasonable basis for him to stop Jemison. Specifically, within Jemison’s second allegation, he contends that Officer Clackley’s various justifications for following and ultimately stopping Jemison evidenced a lack of a reasonable basis to initiate a stop. However, in the situations described in Jemison’s first three points, no detention had taken place. Officer Clackley testified that he was approximately 30 feet away from Jemison when he began asking Jemison questions at the residence. Up until the moment Officer Clackley caught up with a fleeing Jemison and arrested him, Officer Clackley had not stopped or detained, and thus had not seized, Jemison in any meaningful sense. A Fourth Amendment seizure takes place only “when there is a governmental termination of freedom of movement through intentionally applied means.” Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). Thus, Officer Clackley did not seize Jemison by following him in his police vehicle, see Brower (the show of police authority inherent in a police chase does not, in and of itself and without actually causing a traffic stop, constitute a seizure under the Fourth Amendment); by speaking to him and attempting to ask questions, see Royer, 460 U.S. at 497 (“law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions”); or by giving chase to Jemison once he fled the scene. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (a police officer running after a suspect and ordering him to halt does not seize the suspect when the suspect refuses to comply with the officer’s orders and continues fleeing). Because up until the point of actual arrest Officer Clackley had not seized Jemison under any standard articulated by the United States Supreme Court, no Fourth Amendment violation took place during the events proceeding the actual arrest. Accordingly, no claim raised within Jemison’s first three claims of Fourth Amendment infringement entitles him to relief.

D.

Officer Clackley finally apprehended Jemison after giving chase for approximately four or five blocks. Officer Clackley handcuffed Jemison and placed him under arrest for disorderly conduct, specifically “under the subsection of blocking or interrupting a pedestrian or vehicle traffic in a public highway.” (R. 18.) In his fourth point, Jemison argues that his arrest was unconstitutional because, he says, Officer Clackley did not have the requisite reasonable suspicion or probable cause to arrest him. Specifically, Jemison contends that Officer Clackley’s testimony regarding disorderly conduct was “an afterthought.” (Jemison’s brief, at 21.) Moreover, Jemison also argues that the State failed to prove a prima facie case of disorderly conduct.

Section 13A-ll-7(a)(5), Ala.Code 1975, states that a person commits the crime of disorderly conduct if, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he ... [o]bstructs vehicular or pedestrian traffic.” Additionally, § 15 — 10—8(a)(1), Ala.Code 1975, states, in pertinent part: “An officer may arrest a person without a warrant, on any day and at any time ... [i]f a public offense has been committed or a breach of the peace threatened in the presence of a police officer.”

In Powell v. State, 796 So.2d 404 (Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala.2001), this Court stated:

“ ‘The level of evidence needed for a finding of probable cause is low. “An officer need not have enough evidence or information to support a conviction [in order to have probable cause for arrest].... ‘[0]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ” Stone v. State, 501 So.2d 562, 565 (Ala.Cr.App.1986). “ ‘Probable cause exists where “the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.’ ” Young v. State, 372 So.2d 409, 410 (Ala.Cr.App.1979) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959)).’ ”

796 So.2d at 424, quoting State v. Johnson, 682 So.2d 385, 387-88 (Ala.1996).

According to Officer Clackley, Jemison ran through the yards of houses in that neighborhood and in the center of Taylor Avenue before finally being apprehended four or five blocks away. Officer Clackley witnessed these events as he gave chase and eventually caught Jemison. These observations were sufficient to give Officer Clackley sufficient probable cause to arrest Jemison. Contrary to Jemison’s argument on appeal, the State was not required to present evidence sufficient to sustain a conviction for disorderly conduct in order to render the warrantless arrest lawful. Accordingly, Officer Clackley’s warrantless arrest of Jemison was lawful.

On a daily basis, police officers are required to use their training and experiences to investigate crimes and to apprehend those suspected of wrongdoing. In many cases, including this one, seemingly innocent or otherwise noncriminal activities may catch the attention of a police officer and spark within that officer a belief that further investigation is required. In these instances, reviewing courts are called to be careful and defer to the judgment of the police officers. See, Williams v. State, 716 So.2d 758, 756 (Ala.Crim.App.1998) (“When reviewing the degree of suspicion that attaches to noncriminal behavior, courts should give great deference to the training and experience of police officers.”). Courts reviewing interactions between police and potential criminals have repeatedly instructed that such interactions cannot be viewed in a vacuum, but must be analyzed considering the “totality of the circumstances.” In asking if a reasonable man standing at the same vantage point as Officer Claekley, witnessing the same behavior of a suspect, would believe that Officer Clackley’s pursuit and seizure of Jemison were appropriate, we answer that inquiry in the affirmative.

Officer Claekley never seized Jemison under the plain meaning of the Fourth Amendment before he placed Jemison under custodial arrest. Furthermore, Officer Clackley’s arrest of Jemison was lawful. Based on the foregoing, we conclude that Jemison was never subjected to an illegal seizure during the course of his interaction with Officer Claekley. Thus, we now turn to the search that uncovered the Ecstasy underlying this prosecution.

II.

The State argues that no illegal search took place in this case. Specifically, the State contends that the bag of Ecstasy was not found pursuant to any sort of search but was recovered on the ground along the route of Jemison’s flight. Furthermore, the State contends, even if the recovery of the bag of Ecstasy could be construed to be the result of a search, the search in no way involved an area in which Jemison had a reasonable expectation of privacy. Jemison contends that the State failed to show “exigent circumstances or an applicable exception [to the warrant requirement]” in order to conduct a warrantless search of Jemison’s uncle’s yard.

“‘In the context of the Fourth Amendment, a search implies probing into secret places for that which is hidden [and] implies force, actual or constructive, or a forceable dispossession of property of one by exploratory acts.’ ” Williams v. State, 3 So.3d 285, 289 (Ala.Crim.App.2008), quoting Vogel v. State, 426 So.2d 863, 872 (Ala.Crim.App.1980) (internal citations omitted).

Here, the actions taken by Officer Claekley do not fit within the parameters of a “search” as described by this Court in Williams. The bag of Ecstasy was found along Jemison’s flight route close to the corner of the house on a pile of leaves adjacent to the driveway. In no way could Officer Clackley’s actions be described as “probing” or “exploratory.” Accordingly, no search falling within the meaning of the Fourth Amendment took place.

Moreover, assuming, for the sake of argument, that Officer Clackley’s recovery of the bag of Ecstasy did constitute a search, Jemison lacks standing to challenge the search of his uncle’s yard. In Jones v. State, 946 So.2d 903 (Ala.Crim.App.2006), this Court explained:

“ ‘An appellant wishing to establish standing to challenge the introduction of evidence obtained as a result of an alleged violation of the Fourth Amendment must demonstrate that he has a legitimate expectation of privacy in the area searched. Cochran v. State, 500 So.2d 1161 (Ala.Cr.App.1984), rev’d in part on other grounds, 500 So.2d 1179 (Ala.1985), on remand, 500 So.2d 1188 (Ala.Cr.App.1986), aff'd, 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987). . . . “A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). “For a search to violate the rights of a specific defendant, that defendant must have a legitimate expectation of privacy in the place searched, and the burden is squarely on the defendant asserting the violation to establish that such an expectation existed.” Kaercher v. State, 554 So.2d 1143, 1148 (Ala.Cr.App.), cert. denied, 554 So.2d 1152 (Ala.1989).’
“Harris v. State, 594 So.2d 725, 727 (Ala.Crim.App.1991).”

946 So.2d at 919-20 (emphasis added). The record is devoid of any evidence indicating that Jemison had a legitimate expectation of privacy in his uncle’s yard. Jemison offers no argument otherwise. Accordingly, Jemison did not have standing to challenge the search of his uncle’s yard.

Finally, Jemison argues that the trial court properly suppressed the bag of Ecstasy recovered from the scene on the ground that Officer Clackley did not see Jemison throw the bag on the ground during the chase. Officer Clackley admitted during the suppression hearing that he did not see Jemison abandon anything as he was fleeing from the scene. To the extent that the trial court suppressed the bag of Ecstasy on the ground that Officer Clack-ley did not actually see Jemison in possession of the drugs before he discarded them, we hold that such a consideration is an improper justification for suppressing this evidence.

A suppression hearing serves as a means through which a party may challenge the admission of evidence purportedly obtained through an illegal seizure or search. See Rule 15.6(a), Ala.R.Crim. P. (“A defendant aggrieved by an allegedly unlawful search or seizure may move the court to suppress for use as evidence anything so obtained.”). In a case like the one at hand, where the defendant moves to suppress evidence on the ground that the evidence was obtained in violation of the Fourth Amendment, the inquiry begins and ends with the questions regarding the constitutionality of the search and/or seizure: if the search and/or seizure was unconstitutional, the motion is due to be granted and the evidence suppressed; however, if the search and/or seizure was constitutionally permissible, the motion is due to be denied, and the evidence survives Fourth Amendment scrutiny. Any question regarding the weight or veracity of the evidence must be decided by the jury, as this inquiry falls outside the scope of the suppression hearing. Cf Bryant v. State, 428 So.2d 641, 645 (Ala.Crim.App.1982) (“The purpose of a suppression hearing is to determine the voluntariness of a statement, not its content.”).

By analogy, this Court has recognized that Rule 13.5(c)(1), Ala.R.Crim. P., does not authorize “a trial court to dismiss an indictment based on the court’s pretrial determination of the sufficiency of the State’s case.” State v. Worley, [Ms. CR-06-1879, November 13, 2009] — So.3d -, - (Ala.Crim.App.2009). Under Rule 13.5(c)(1), an indictment maybe dismissed only “based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.” Worley, — So.3d at -, quoting State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005), and citing Rule 13.5(c)(1), Ala. R.Crim. P. Thus, whereas Rule 13.5(c)(1) allows for the pretrial dismissal of an indictment only on limited grounds, but not dismissal based upon a pretrial determination of the sufficiency of the State’s evidence, Rule 15.6(a) likewise allows only for the suppression of evidence obtained pursuant to an illegal search or seizure, but does not authorize suppression based upon the trial court’s determination of the sufficiency of the State’s evidence. Accordingly, to the extent the trial court suppressed the evidence of the bag of Ecstasy on the ground that the State failed to prove the existence of a nexus linking Je-mison to the drugs, that suppression was in error because it fell outside the bounds of the motion to suppress.

Finally, we note that in Jemison’s original motion to suppress he claimed that the State failed to prove the chain of custody of the evidence in this case. Apparently, this issue was not contested at the suppression hearing because the only testimony relating to a chain-of-custody claim can be found in Officer Clackley’s statement that he turned over the drugs to the Alabama Department of Forensic Sciences for testing. No other inquiries were made. Accordingly, the record is devoid of evidence indicating suppression was warranted based upon the failure of the State’s chain-of-custody evidence.

Jemison also claims that the suppression of the evidence seized from his vehicle was justified on the ground that Officer Clackley’s search of his vehicle was conducted in violation of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Specifically, Jemison contends that the search was illegal under Gant on the grounds (1) that the search was not necessary for Officer Clackley’s own safety; and (2) that Officer Clackley could not have reasonably believed that a search of Jemison’s car would have uncovered evidence of the offense on which the arrest was made — disorderly conduct. The State contends that Gant should not retroactively apply to Jemison’s case.

This Court has not yet addressed the applicability of Gant to cases pending on direct appeal. In the wake of Gant, the United States Court of Appeals for the Eleventh Circuit in United States v. Davis, 598 F.3d 1259 (11th Cir.2010), discussed whether Gant applied retroactively to a case then before the court on direct appeal:

“Although the Supreme Court’s retro-activity doctrine has a complicated history, see United States v. Johnson, 457 U.S. 537, 542-48, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), it is now settled that ‘a decision of [the Supreme] Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered,’ id. at 562, 102 S.Ct. 2579, ‘with no exception for cases in which the new rule constitutes a “clear break” with the past,’ Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Accord Glazner v. Glazner, 347 F.3d 1212, 1217 (11th Cir.2003) (‘[F]or newly announced rules governing criminal prosecutions, the Supreme Court has completely rejected both pure prospectivity, which occurs where a court gives a newly announced rule no retroactive effect, and modified prospectivity, which occurs where a court applies a newly announced rule retroactively on a case by case basis.’). Because Davis’s case was pending on direct appeal when Gant was decided, the rule announced in that decision applies to his case.

598 F.3d at 1263. Here, Jemison presents his claim on direct appeal from his conviction, and, therefore, his conviction was not yet “final.” Thus, the rule announced in Gant applies to Jemison’s case. However, before concluding that the suppression of evidence seized from the vehicle is a proper remedy under Gant, we must determine whether (1) Officer Clackley’s action’s violated the rule announced in Gant, and, if so, (2) whether the exclusionary rule commands suppression of any evidence seized in violation of Gant. See Davis, 598 F.3d at 1263, quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), quoting in turn Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“ ‘Whether the exclusionary sanction is appropriately imposed in a particular case ... is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” ’ ”).

Initially, we question whether Officer Clackley’s search of Jemison’s vehicle violated the rule announced in Gant. In Gant, the United States Supreme Court reexamined its holding in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the Court held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id., at 460. See also Davis, 598 F.3d at 1259 (“As the Supreme Court later explained, its opinion in Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there [was] no possibility the arres-tee could gain access to the vehicle at the time of the search.’ Gant, 129 S.Ct. at 1718.”). The Court in Gant replaced the rule announced in Belton and explained:

“The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely ‘within “the area into which an arrestee might reach,”’ 453 U.S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations.
“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

556 U.S. at -, 129 S.Ct. at 1723-24.

Here, it is undisputed that Jemison was not within “reaching distance of the passenger compartment” at the time he was arrested by Officer Clackley. Thus, Officer Clackley was not justified in searching Jemison’s vehicle on this ground. However, we believe that Officer Clackley was justified in searching Jemison’s vehicle on the ground that he reasonably believed that he would find evidence related to the drugs recovered from the scene.

Jemison argues that he was arrested for disorderly conduct and that Officer Clack-ley had no reasonable expectation that he might find evidence of that offense in the vehicle. Jemison’s view of the Supreme Court’s holding in Gant is too narrow. Here, it is reasonable to conclude that Officer Clackley had probable cause to suspect that Jemison had committed the offense of disorderly conduct, see Part I of this opinion, and that Jemison had committed some drug-related offense by the time Officer Clackley recovered the Ecstasy in the yard. See Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996) (“Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.”)(internal citations omitted). Given the totality of the circumstances— Jemison’s suspicious behavior, his flight, and the recovery of the Ecstasy along Jemison’s flight path — Officer Clackley could have reasonably believed that he would uncover evidence of drug possession or distribution in Jemison’s vehicle. Accordingly, we do not believe Officer Clack-ley violated the rule announced in Gant by searching Jemison’s car for evidence of drug-related offenses.

Moreover, even if we are to assume that Officer Clackley violated Gant by searching Jemison’s vehicle, we must determine whether the suppression of the evidence gathered from the vehicle pursuant to the exclusionary rule is an appropriate remedy for this Gant violation. In Davis, the Court found that although the police officer violated the rule announced in Gant, the application of the exclusionary rule to the evidence seized from the vehicle would not be an appropriate remedy. The Court explained:

“ ‘[T]he exclusionary rule is not an individual right’; it ‘applies only where it “result[s] in appreciable deterrence,” ’ and ‘the benefits of deterrence must outweigh the costs.’ Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009) (quoting [United States v.] Leon, 468 U.S. [897] at 909, 104 S.Ct. 3405 [(1984)]) (alteration in original). Whether to suppress evidence obtained from an unconstitutional search thus ‘turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.’ Id. at 698, 129 S.Ct. 695. Because the exclusionary rule ‘cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,’ the Supreme Court has established an exception to the rule’s application for cases in which the officers who conducted an illegal search ‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.’ Leon, 468 U.S. at 919, 104 S.Ct. 3405.
“In this case, Sergeant Miller did not deliberately violate Davis’s constitutional rights. Nor can he be held responsible for the unlawfulness of the search he conducted. At the time of the search, we adhered to the broad reading of Belton that the Supreme Court later disavowed in Gant, and a search performed in accordance with our erroneous interpretation of Fourth Amendment law is not culpable police conduct. Law enforcement officers in this circuit are entitled to rely on our decisions, and ‘[penalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations,’ Leon, 468 U.S. at 921, 104 S.Ct. 3405. As the Tenth Circuit explained, the general ‘purpose of the exclusionary rule is to deter misconduct by law enforcement officers, not other entities,’ and there would be little ‘significant deterrent effect in excluding evidence based upon the mistakes of those uninvolved in or attenuated from law enforcement.’ McCane, 573 F.3d at 1044.
“Because the exclusionary rule is justified solely by its potential to deter police misconduct, suppressing evidence obtained from an unlawful search is inappropriate when the offending officer reasonably relied on well-settled precedent.
“With this decision, we join the Fifth and Tenth Circuits in refusing to apply the exclusionary rule when the police have reasonably relied on clear and well-settled precedent. See, [United States v.] McCane, 573 F.3d [1037] at 1045 [ (10th Cir.2009) cert. denied, - U.S. -, 130 S.Ct. 1686 (2010)] (‘[T]his court declines to apply the exclusionary rule when law enforcement officers act in objectively reasonable reliance upon the settled case law of a United States Court of Appeals.’); [United State v.] Jackson, 825 F.2d [853] at 866 [(5th Cir.1987)] (‘[T]he exclusionary rule should not be applied to searches which relied on Fifth Circuit law prior to the change of that law....’). We stress, however, that our precedent on a given point must be unequivocal before we will suspend the exclusionary rule’s operation. We have not forgotten the importance of the ‘incentive to err on the side of constitutional behavior,’ and we do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unsettled’ questions of Fourth Amendment law. Johnson, 457 U.S. at 561, 102 S.Ct. 2579 (quoting Desist v. United States, 394 U.S. 244, 277, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Fortas, J., dissenting)).
“The clarity of the Belton rule we followed before Gant is thus critical to our decision today. Although the Court in Gant insisted that Belton could have been interpreted in either of two ways, it also acknowledged that Belton was premised on a ‘faulty assumption’ to which the doctrine of stare decisis did not require adherence. Gant, 129 S.Ct. at 1719, 1723. Indeed, we, like most of the other courts of appeals, treated the broader, permissive reading of Belton as well-settled. It is precisely in situations like this, when the permissibility of a search was clear under precedent that has since been overturned, that applying the good-faith exception makes sense. When the police conduct a search in reliance on a bright-line judicial rule, the courts have already effectively determined the search’s constitutionality, and applying the exclusionary rule on the basis of a judicial error cannot deter police misconduct. Cf. Krull, 480 U.S. at 360 n. 17, 107 S.Ct. 1160. (‘[T]he question whether the exclusionary rule is applicable in a particular context depends significantly upon the actors who are making the relevant decision that the rule is designed to influence.’).
“Our decision here is therefore consistent with our holding in United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir.2003), that ‘the good faith exception to the exclusionary rule ... should not be extended to excuse a vehicular search based on an officer’s mistake of law (emphasis added). The justifications for the good-faith exception do not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw. When the police rely on novel extensions of our precedent, they engage in the sort of legal analysis better reserved to judicial officers, whose ‘detached scrutiny ... is a more rehable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime,’ United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (quotation marks and citation omitted), quoted in Leon, 468 U.S. at 913-14, 104 S.Ct. 3405. When law enforcement officers rely on precedent to resolve legal questions as to which ‘[rjeasonable minds ... may differ,’ Leon, 468 U.S. at 914, 104 S.Ct. 3430, the exclusionary rule is well-tailored to hold them accountable for their mistakes.
“Although an officer’s mistake of law cannot provide objectively reasonable grounds for a search, Chanthasouxat, 342 F.3d at 1279, the mistake of law here was not attributable to the police. On the contrary, the governing law in this circuit unambiguously allowed Sergeant Miller to search the car. Relying on a court of appeals’ well-settled and unequivocal precedent is analogous to relying on a statute, cf. [Illinois v.] Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 [(1987)], or a facially sufficient warrant, cf. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677—not to personally misinterpreting the law.
“In this case, Sergeant Miller performed a search that our contemporaneous interpretation of Belton clearly permitted. Had the Supreme Court not subsequently rejected that interpretation in Gant, we undoubtedly would have upheld the search as constitutional. Because the search was objectively reasonable under our then-binding precedent, suppressing the gun found in Davis’s jacket would serve no deterrent purpose. In accordance with our holding that the good-faith exception allows the use of evidence obtained in reasonable reliance on well-settled precedent, we refuse to apply the exclusionary rule here.”

598 F.3d at 1265-68.

At the time Officer Clackley searched Jemison’s vehicle, it is unequivocal that the rule announced in Belton concerning automobile searches carried out as incident to lawful arrests was the controlling precedent in Alabama. See, e.g., Sheffield v. State, 606 So.2d 183, 187 (Ala.Crim.App.1992) (“After arresting the driver of an automobile, an officer ‘may, as a contemporaneous incident of that arrest, search the passenger compartment’ of that car, including ‘the contents of any containers found within the passenger compartment.’ New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).”); Mason v. State, 768 So.2d 981 (Ala.Crim.App.1998), aff'd, 768 So.2d 1008 (Ala.2000) (“Even if we were to conclude that the search was not authorized pursuant to an inventory search, the trial court’s denial of the motion to suppress is due to be affirmed because the search of the appellant’s vehicle was lawful as a search incident to an arrest. Sheffield, 606 So.2d at 187.”). Thus, like the Court in Davis, we conclude that no mistake of law was attributable to Officer Clackley in that after arresting Jemison, under Belton, Officer Clackley was authorized to search Jemi-son’s vehicle as incident to the arrest based on well settled precedent.

Applying the exclusionary rule to suppress the evidence seized from Jemison’s vehicle is not an appropriate remedy for Officer Clackley’s good-faith reliance on the well settled Belton precedent because doing so serves no deterrent purpose to unconstitutional police searches. See Ex parte Tyson, 784 So.2d 357, 364 (Ala.2000), quoting Leon, 468 U.S. at 906-08 (“The [exclusionary rule] operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ United States v. Calandra, [414 U.S. 338, 348 (1974)].”) (alteration in original). Thus, even if we were to assume that Officer Clackley violated Gant by searching Jemison’s vehicle after his lawful arrest, we do not believe the exclusionary rule should be applied to Officer Clackley’s good-faith actions. Accordingly, Gant affords Jemison no relief with respect to his claim that the evidence seized from his vehicle was due to be suppressed.

As previously discussed, Officer Clack-ley did not subject Jemison to an unlawful seizure. Likewise, the bag containing the Ecstasy pills was not recovered during a search implicating any Fourth Amendment right of Jemison. Accordingly, the trial court erred in granting Jemison’s motion to suppress. Based on the foregoing, the judgment of the trial court is reversed and this case remanded for the circuit court to set aside its order granting Jemison’s motion to suppress and to restore Jemison’s case to its active docket.

APPLICATION OVERRULED; OPINION OF JULY 30, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

      . "Ecstasy” is the common street name for N-Benzylpiperazine.

      " 2 'Final' in this context refers to any 'case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.’ Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO the FLORIDA RULES OF CRIMINAL PROCEDURE-RULE 3.191.
    No. SC10-1880.
    Supreme Court of Florida.
    June 9, 2011.
    Robert T. Strain, Chair, Criminal Procedure Rules Committee, Capital Collateral Regional Counsel, Tampa, FL, John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    R. Blaise Trettis, Executive Assistant Public Defender, Eighteenth Judicial Circuit, Viera, FL and S.A. Siddiqui, Siddiqui Legal Enterprise, Jacksonville, FL, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Criminal Procedure 3.191 (Speedy Trial). We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(f).

At the request of the Court, the Florida Bar’s Criminal Procedure Rules Committee (Committee) filed an out-of-cycle report on September 30, 2010, proposing an amendment to rule 3.191(i), which addresses the suspension of speedy trial procedures by administrative order of the Chief Justice due to emergency. The Executive Committee of the Board of Governors of the Florida Bar unanimously approved the proposal. The Committee’s proposal was published for comment after being filed with the Court. Two comments were filed, and the Committee filed a response to the comments.

Upon consideration of the Committee’s report, the comments filed, and the Committee’s response thereto, we adopt new subdivision (i)(5) of rule 3.191 as proposed by the Committee. This new subdivision provides that the time periods under the speedy trial rule may be extended by an “administrative order issued by the chief justice, under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), suspending the speedy trial procedures as stated therein.”

Accordingly, rule 3.191(f) is hereby amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 3.191. SPEEDY TRIAL

(a)-(h) [No change.]

(i)When Time May Be Extended.

The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:

(1) stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced;

(2) written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in subdivision Ci);

(3) written or recorded order of the court with good cause shown by the ac-cusedjor

(4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, for DNA testing ordered on the defendant’s behalf upon defendant’s motion specifying the physical evidence to be tested pursuant to section 925.12(2), Florida Statutes, and for trial of other pending criminal charges against the accused?; or

(5) administrative order issued by the chief justice, under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), suspending the speedy trial procedures as stated therein.

(j)-(p) [No change.]

Committee Notes

[No change.]


author: PER CURIAM. LEWIS, J.,

text:
    Horace McKINNEY, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-140.
    Supreme Court of Florida.
    June 16, 2011.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Fifth District Court of Appeal in McKinney v. State, 24 So.3d 682 (Fla. 5th DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Shazer v. State, 3 So.3d 453 (Fla. 4th DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we find our decision in Valdes v. State, 3 So.3d 1067 (Fla.2009), controlling, we disapprove of the Fourth District’s decision in Shazer and approve the Fifth District’s decision in McKinney.

FACTS

The facts in this case are not in dispute. On the evening of September 11, 2007, Horace McKinney approached Bernard Vi-vandieu in his driveway. Vivandieu had recently picked up a money wire transfer of $290.30 from Western Union and McKinney had followed him home. McKinney approached him, pointing a gun to his side, and asked for the money. Vi-vandieu stated he had no money, but McKinney eventually found the money where Vivandieu had placed it in the car between the seats and took it and Vivan-dieu’s cell phone. McKinney was convicted of grand theft and robbery with a firearm for the incident. For the grand theft charge, McKinney was sentenced to 237 days in the Orange County Jail and given credit for the 237 days he spent incarcerated awaiting imposition of the sentence. On the robbery charge, McKinney received twenty-five years, ten of which was the mandatory minimum sentence. On appeal to the Fifth District, McKinney argued that his dual convictions violated the prohibition against double jeopardy. The Fifth District disagreed and affirmed the convictions, certifying conflict with Shazer.

STANDARD OF REVIEW

“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).

MERITS

McKinney was convicted for violations of sections 812.13(2)(a) and 812.014(2)(c)(1), Florida Statutes (2007), and alleges that these convictions violate the proscription against double jeopardy. “Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [] test, as codified in section 775.021, Florida Statutes, to determine whether separate offenses exist.” McKinney, 24 So.3d at 683 (footnote omitted). There is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the Legislature intends to authorize separate punishments. Valdes, 3 So.3d at 1069 (citing Hayes v. State, 803 So.2d 695, 699 (Fla.2001)); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982) (“The Double Jeopardy Clause ‘presents no substantive limitation on the legislature’s power to prescribe multiple punishments,’ but rather, ‘seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.’ ”) (quoting State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.1981)).

In its entirety, section 775.021(4) provides:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2009). McKinney alleges that each of the exceptions provided in paragraph (b) apply to his convictions. We disagree.

Originally, we interpreted section 775.021(4)(b) to exempt offenses that arose from the same “core offense” or “primary evil,” but in Valdes, we determined that this line of reasoning was no longer tenable. McKinney first alleges that his offenses violate double jeopardy because they are essentially degree variants of one another as described in section 775.021(4)(b)2. Under Valdes, this argument can only be valid if the statutes themselves provide such a classification.

After a review of the conflict issue, we find our decision in Valdes controlling. In Valdes, we considered whether dual convictions for discharging a firearm from a vehicle within 1000 feet of a person in violation of section 790.15(2), Florida Statutes (2003), and shooting into an occupied vehicle in violation of section 790.19, Florida Statutes (2003), arising from the same criminal episode, violated double jeopardy. Valdes, 3 So.3d at 1068. Because we concluded that the prior double jeopardy “primary evil” standard proved difficult to apply and strayed from the plain language of the statute, we adopted the approach provided in Justice Cantero’s special concurrence in State v. Paul, 934 So.2d 1167 (Fla.2006). Valdes, 3 So.3d at 1068. In so doing, we held “that section 775.021(4)(b)(2), Florida Statutes (2008), prohibits ‘separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.’ ” Valdes, 3 So.3d at 1068 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)).

In Valdes, as in the instant case, the defendant was convicted of two crimes, codified in separate statutes, arising from a single occurrence. Valdes fired shots from his vehicle into a vehicle standing next to him at a red light. Valdes, 3 So.3d at 1068. As in the instant case, Valdes argued that the convictions violated double jeopardy alleging that the offenses were degrees of the same offense. As in the instant case, the crimes each required a proof of an element that the other did not. Id. at 1071. Under the “primary evil” line of cases, the convictions would have been considered degree variants of each other. However, we concluded “that the ‘primary evil’ test defies legislative intent because it strays from the plain meaning of the statute.” Id. at 1075. We further stated:

By applying the “primary evil” gloss to the second statutory exception, we have added words that were not written by the Legislature in enacting the double jeopardy exceptions of section 775.021(4) and specifically subsection (4)(b)(2). Rather, this exception simply states that there is a prohibition against multiple punishments for offenses which are “degrees of the same offense.” There is no mention of “core offense” and certainly no mention of “primary evil.” Further, there is no rule of construction that would compel this Court to require such an analysis based on constitutional considerations. There is no constitutional prohibition against narrowly interpreting double jeopardy exceptions precisely because there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments.

Id. at 1075-76 (citations omitted). Accordingly, we adopted the approach proposed by Justice Cantero in Paul. Valdes, 3 So.3d at 1076 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)). In so doing, we receded from Gordon v. State, 780 So.2d 17 (Fla.2001), Florida, and Paul. Valdes, 3 So.3d at 1076-77 (finding the “primary evil” test unworkable). Ultimately, we concluded that “the only offenses that fall under subsection (4)(b)2., are those that constitute different degrees of the same offense, as explicitly set forth in the relevant statutory sections.” Id. at 1077.

As this holding was applied to Valdes’ convictions under sections 790.19 and 790.15, we found that the violations did “not satisfy the second statutory exception because the two offenses are found in separate statutory provisions; neither offense is an aggravated form of the other; and they are clearly not degree variants of the same offense.” Valdes, 3 So.3d at 1077. In contrast, we noted that sections 790.15(1), 790.15(2), and 790.15(3) were explicitly degree variants of the same offense. Valdes, 3 So.3d at 1077-78. As we held in Valdes, here there is no question that the Legislature did not expressly provide that robbery and grand theft are degree variants of the same offense. Despite this bright-line rule, McKinney argues that we may wish to follow the Fourth District’s decision in Shazer, which provides that grand theft is a degree variant of robbery. We decline to do so.

Ignoring this Court’s holding in Valdes, the Fourth District Court of Appeal has found that dual convictions for robbery and grand theft violate double jeopardy protection. See Shazer, 3 So.3d at 454 (relying on Ingram v. State, 928 So.2d 1262 (Fla. 4th DCA 2006) to find dual convictions for robbery with a deadly weapon and grand theft violated double jeopardy where the same property formed the basis for both convictions). In Ingram, the Fourth District noted that “[tjheft is a permissive lesser included offense of robbery with a firearm or deadly weapon.” Ingram, 928 So.2d at 1263 (citing Fla. Std. Jury Instr. (Crim.) 15.1 tbl.; Junior v. State, 763 So.2d 1056 (Fla. 4th DCA 1999)). However, the Ingram decision predates this Court’s decision in Valdes, and is therefore not persuasive.

The Fifth District reached the opposite conclusion in McKinney after applying Valdes. Noting that “there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to authorize separate punishments,” the court affirmed McKinney’s dual convictions for robbery with a firearm and grand theft. McKinney, 24 So.3d at 683 (citing Hayes v. State, 803 So.2d 695, 699 (Fla.2001)). The court rejected McKinney’s contention that robbery and theft are simply aggravated forms of the same underlying offense. The court noted that while until recently precedent supported McKinney’s argument, our ruling in Valdes made clear that section 775.021(4)(b)2. “prohibits separate punishments only when a criminal statute provides for variations in degree in the same offense.” McKinney, 24 So.3d at 684 (citing Valdes, 3 So.3d at 1076). Because, “[b]y statute, robbery is not a degree of theft nor is theft a degree of robbery,” the court concluded that “section 775.021(4)(b)2. does not prohibit McKinney’s convictions for robbery with a firearm and grand theft.” McKinney, 24 So.3d at 684. We agree.

Next, we address McKinney’s contention that his convictions are exempt under section 775.021(4)(b)l. by comparing the elements of the crimes for which McKinney was convicted.

Section 812.13, Florida Statutes provides, in relevant part:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 812.13, Fla. Stat. (2007). Section 812.014, Florida Statutes provides, in relevant part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the property.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.
(2)(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:
1. Valued at $300 or more, but less than $5,000.

§ 812.014, Fla. Stat. (2007). A comparison of the elements of the crimes demonstrates that each offense requires an element of proof that the other does not. Robbery requires that the State show that “force, violence, assault, or putting in fear was used in the course of the taking,” and grand theft requires that the State show the value of the property taken. Accordingly, section 775.021(4)(b)1 is inapplicable. Additionally, because neither offense is wholly subsumed by the other, neither is a necessarily included offense of the other. Therefore, section 775.021(4)(b)3. is also inapplicable.

For the foregoing reasons, we approve the Fifth District’s decision below in McKinney.

It is so ordered.

CANADY, C.J, and PARIENTE, POLSTON, LABARGA, and PERRY, JJ., concur.

LEWIS, J., dissents with an opinion, in which QUINCE, J., concurs.

LEWIS, J.,

dissenting.

Under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, no person may “be subject for the same offense to be twice put in jeopardy of life or limb.” This clause effectively “prohibits successive prosecution or multiple punishment for ‘the same of-fence,’ ” Witte v. United States, 515 U.S. 389, 390, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and “was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it.” Id. at 396, 115 S.Ct. 2199 (quoting Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873)). It also “represents a fundamental ideal in our constitutional heritage,” and the Due Process Clause of the Fourteenth Amendment to the United States Constitution makes it applicable to the States. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court articulated a test used in determining whether two offenses are the same for double jeopardy purposes. Under the Blockburger test, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Witte, 515 U.S. at 396, 115 S.Ct. 2199 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180).

For many decades, this Court used the “core offense/primary evil” approach to decide double-jeopardy challenges. See State v. Paul, 934 So.2d 1167 (Fla.2006); State v. Florida, 894 So.2d 941 (Fla.2005); Gordon v. State, 780 So.2d 17 (Fla.2001); State v. Anderson, 695 So.2d 309 (Fla.1997); Sirmons v. State, 634 So.2d 153 (Fla.1994); State v. Thompson, 607 So.2d 422 (Fla.1992); Carawan v. State, 515 So.2d 161 (Fla.1987). This Court utilized Blockburger to interpret statutory provisions, but did not rigidly apply a proof of elements singular test. See Carawan, 515 So.2d at 164-65. Without reference to any decisional law from this Court or Florida’s district courts of appeal that exhibited the impracticality of that approach, any necessity to abrogate it, or any miscarriage of justice, in Valdes v. State, 3 So.3d 1067 (Fla.2009), this Court departed from decades of well-established law and prescribed that courts adhere to the strict tenets of the Blockburger test enumerated in section 775.021(4), Florida Statutes (2009), when deciding double jeopardy challenges. Valdes, 3 So.3d at 1075-77. The majority decision today represents the paradigm wrongly and rigidly created by Valdes, and the dangerous implications running from its mandate that courts adhere exclusively to a strict and rigid application of the Blockburger test when deciding double-jeopardy challenges. See id. at 1075-77.

By rigidly examining only the strict wording of a single statute in isolation to determine if multiple punishments violate double jeopardy, a court may easily misinterpret whether the Legislature intended to impose a multitude of punishments for a single evil or wrong committed during a single episode. This is in opposition to the intended purpose of the Blockburger test, which, along with the rule of lenity, was to serve as a rule of construction that assisted courts in discerning legislative intent— not decide what that intent was. See Carawan, 515 So.2d at 166-67 (stating that the Blockburger test and the rule of lenity are rules of construction that “serve no purpose other than assisting the courts in ascertaining the true legislative intent behind a particular ambiguous statute and carrying that intent into effect to the fullest degree possible,” and that “the Block-burger test itself, as a rule of construction, will not prevail over actual intent”).

In contrast, the “core offense/primary evil” approach utilized the Blockburger test in a way that comported with its original design, i.e., it applied that test as a guide to assist a court in its determination as to whether the Legislature intended to inflict multiple punishments for two separately codified crimes committed in a single episode or by a single act. Under that approach, a court would initially search for legislative intent through an examination of the express wording of the statutes at issue. See id. at 165. If that wording did not illustrate the Legislature’s intent, a court would then invoke the Blockburger test, as codified in section 775.021(4), to help discern the intent. See id. at 167. “Subsection 775.021(4) was to be treated as an ‘aid’ in determining legislative intent, not as a specific, clear, and precise statement of such intent.” Valdes, 3 So.3d at 1072 (emphasis added). Along with section 775.021(4)’s directives, a court was to consider whether the two statutory offenses at issue concerned the “same evil.” Carawan, 515 So.2d at 168. In accord with the rule of lenity, even if two statutory offenses “contain[ed] a unique statutory element and [were] separate under subsection 775.021(4),” if the two offenses concerned the same evil, double jeopardy guarded against multiple punishments for those offenses. Valdes, 3 So.3d at 1072 (citing Carawan, 515 So.2d at 167-68).

Conversely, the Valdes decision, along with its strict and rigid application of Blockburger, disregards double jeopardy protection in instances where, although a statute does not explicitly provide for double jeopardy protection, the Legislature intended to extend that protection by guarding against multiple punishments for the same primary evil — or single-evil act— by way of legislating against that same evil in two separate statutes. See 515 So.2d at 168 (stating that a “reasonable basis for concluding that the legislature did not intend multiple punishments” is “where the accused is charged under two statutory provisions that manifestly address the same evil and no clear evidence of legislative intent exists”). In such instances, “the most reasonable conclusion usually is that the legislature did not intend to impose multiple punishments.” Id. By ignoring this scenario, the Court in Valdes has simply dismantled double jeopardy protections and their aim of preventing “the evil of multiple punishments for single offenses.” Id. at 164 (citing Ex parte Lange, 85 U.S. (18 Wall.) at 173).

Furthermore, the Valdes court eliminated double jeopardy protections for those litigants who are punished twice for the same evil or single wrongful act “because of the constant patchwork revisions of Florida’s criminal code.” Carawan, 515 So.2d at 168. The Valdes decision inevitably leads to these types of double jeopardy violations because two statutes, although drafted at different times and addressing different versions of crimes, may “manifestly address the same evil.” Id.

In addition, the Valdes decision offends the principle that a court is not to interpret a statute to achieve an absurd or unreasonable result because “an exclusive Blockbwrger analysis sometimes leads to a result contrary to common sense.” Id. at 167. The case now before this Court exemplifies a scenario where the fear of punishing an individual for the same evil or singular-evil act and the absurdity of a strict Blockbwrger application come to fruition.

In this case, the trial court convicted McKinney of grand theft and robbery with a firearm for acts committed during a single episode. Section 812.014, Florida Statutes (2009), defines grand theft as to knowingly obtain or acquire the property of another with the intent to temporarily or permanently deprive that person of that property or appropriate it to the taker’s use. In contrast, section 812.13, Florida Statutes (2009), defines robbery as the intentional taking of the property of another — by force, violence, or fear — with the purpose of permanently or temporarily depriving the owner of that property. Robbery with a firearm is robbery committed with a firearm. See id. § 812.13(2)(a).

When the definition of grand theft and robbery are juxtaposed to one another and examined concomitantly, it is clear that they involve the same evil, with robbery being a higher degree of grand theft, i.e., it is grand theft accomplished through the use of force. Both of these criminal provisions punish an individual for taking property of another for the purpose of temporarily or permanently depriving him or her of that property. The primary evil involved in these two crimes is also the same, i.e., deprivation of one’s property through the actions of another. The only difference between the two is the degree by which that taking is accomplished. Therefore, a conviction for both in a single episode and single act punishes an individual twice for the same evil and violates double jeopardy. Valdes may require a contrary result, but Valdes was wrong when this Court issued it, and it remains wrong in application today.

Accordingly, I dissent.

QUINCE, J., concurs.

      . McKinney was also charged with, and convicted of, aggravated assault with a firearm and armed burglary of a conveyance with a firearm. He received concurrent sentences of three years and twenty years, respectively. Neither of these convictions was challenged on appeal.

        . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Although the Court did not explicitly recede from the "core offense” line of cases, the language of the opinion makes clear that those cases were also receded from.

      . The Fourth District issued Shazer on March 11, 2009. Valdes was issued by this Court on January 30, 2009. It is unclear why the Fourth District failed to follow Valdes in its decision, or to note a reason for its departure from controlling precedent.


text:
    In re AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC10-1468.
    Supreme Court of Florida.
    June 16, 2011.
    Steven P. Combs, Chair, Family Law Rules Committee, Jacksonville, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Joan K. Koch, Chief Legal Counsel, Florida Department of Revenue, Child Support Enforcement Program, Tallahassee, FL, Responding with comments.
   PER CURIAM.

In the September 23, 2010, opinion entered in this case, the Court adopted amendments to Florida Family Law Rules of Procedure Forms 12.902(e) (Child Support Guidelines Worksheet) and 12.996(a) (Income Deduction Order (Non-Title IV-D Case)), as proposed by the Florida Bar’s Family Law Rules Committee (Committee) to implement 2010 legislative amendments adopted in chapter 2010-199, sections 3 and 5, Laws of Florida. See In re Amendments to the Fla. Family Law Rules of Procedure, 48 So.3d 25 (Fla.2010). Because the amendments to forms 12.902(e) and 12.996(a) were adopted pursuant to the Committee’s “fast-track” procedure and were not published for comment prior to, their adoption, the opinion invited interested persons to provide comments on the amended forms within sixty days. The Court received one comment from the Florida Department of Revenue (DOR), specifically addressing form 12.996(a). The Committee also provided additional input in its response to DOR’s comment.

Upon consideration of the comment and the response from the Committee, we amend the instructions to Florida Family Law Rules of Procedure Form 12.996(a) as reflected in the appendix to this opinion, to clarify that orders for immediate income deduction must be paid through the State Disbursement Unit. However, we otherwise decline to amend form 12.996(a) as suggested in DOR’s comment. The form is fully engrossed and ready for use. The form may also be accessed and downloaded from the Florida State Court’s website at www.flcourts.org/gen_public/family/forms_ rules/index.shtml. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.996(a), INCOME DEDUCTION ORDER (06/11)

When should this form be used?

This form should be used in non-Title IVD cases when the court has ordered that support be paid by the obligor’s payor through an income deduction order.

This form includes several blanks that must be filled in as applicable. The obli-gor is the person who is obligated to pay the support ordered by the court and the obligee is the person entitled to receive the support awarded by the court.

In Paragraph 1, one of the three lines must be checked off. The court order that establishes the support award and/or the settlement or mediation agreement entered into between the parties should state the effective date of the Income Deduction Order. The appropriate effective date should be checked off in Paragraph 1.

The blank lines in Paragraph 2 should be completed tracking the same terms of support as are in the court order that establishes the support award and/or the settlement or mediation agreement. The first blank in each line should state the amount of the support payment and the second blank in each line should state the time period that covers said support award. For example, if the child support is $100 per month the first blank would say $ “100" and the second blank in that line would say “month". Similarly, if the payments are to be payable weekly, then the second blank would say “week ”. If there are any arrearages owed at the time the Income Deduction Order is entered, they must be included in the line for arrears, along with the amount and frequency of the payments due for the arrears, which shall be no less than 20% of the current support obligation. All orders for immediate income deduction must be paid through the State Disbursement Unit. The actual dollar amount of the service fee for the support awarded in your case (4% of each payment not to exceed $5.25 per payment) should be included on the appropriate line.

Paragraph 6 must be completed to show what percentage, if any, of a one-time payment made to the obligor should be applied to any arrearage in support that may be due to the obligee.

You must complete the schedule in paragraph 7 to show the amount of child support for all the minor children at the time of the entry of this order and the amount of the child support that will be owed for any remaining child(ren) after one or more of the children are no longer entitled to receive child support. You should also show in the schedule the day, month, and year that the child support obligation terminates for each minor child. The date child support terminates should be listed as the child’s 18th birthday unless the court has found that section 743.07(2), Florida Statutes, applies, or the parties have otherwise agreed to a different date. You should use the record existing at the time of this order for the basis of computing all child support obligations.

What should I do next?

For this order to be effective, it must be signed by the judge. This form should be typed or printed in black ink. After completing this form, you must first send a copy to the other party or his or her attorney, if he or she is represented by an attorney, for approval or objection to the form before you send it to the judge assigned to your case. If the opposing party or his or her attorney, if represented, approves the form order, you may send the original proposed order and two copies to the judge assigned to your case with a letter telling the judge that you have first sent a copy of this proposed order to the opposing counsel or party, if unrepresented, and that they have no objection to the judge signing this order. If the other party or his or her attorney, if represented, has an objection to the proposed order as completed by you, you must tell the judge that you have sent a copy of this proposed order to the opposing party or his or her counsel, if represented, and that they specifically object to the entry of the proposed form Income Deduction Order. You must also send stamped self-addressed envelopes to the judge addressed to you and the opposing party or his or her attorney, if represented. You should keep a copy for your own records. If the judge signs the Income Deduction Order, the judge will mail you and the opposing party (or their attorney) copies of the signed order in the envelopes you provide to the court.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information see section 61.1301, Florida Statutes.

Special Instructions ...

When the Income Deduction Order becomes effective (either immediately or delayed until arrearage), you must then also send a copy of the Income Deduction Order to the obligor’s employer along with a Notice to Payor, Florida Family Law Rules of Procedure Form 12.996(b), for the Income Deduction Order to take effect.

It is your responsibility to determine what extra steps and/or forms, if any, must be taken, supplied, and/or filed to insure the Income Deduction Order is implemented.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

IN THE CIRCUIT COURT OF THE IN AND FOR_ _JUDICIAL CIRCUIT, _COUNTY, FLORIDA

Case No:__

Division:_

Petitioner,

and

Respondent

INCOME DEDUCTION ORDER (Non-Title IV-D Case)

TO: ANY PRESENT OR SUBSEQUENT EM PLOYERS/PAYORS OF 0 BLIGOR

{name}____

YOU ARE HEREBY ORDERED to make regular deductions from all Income due and payable to the above-named obligor In accordance with the terms of this order as follows:

1. This Income Deduction Order shall be effective

(Choose only one]

_ Immediately.

_ upon a delinquency In the amount of $__but not to exceed one month's payment, pursuant to the order establishing, enforcing, or modifying the obligation.

_ beginning {date}_.

2. You shall deduct:

$_per_for child support. Child support shall be automatically reduced or terminated consistent with the schedule In paragraph 7.

$_per_for permanent alimony

$_per_ for rehabilitative alimony

$_per_ for_arrears totaling $_

The deduction for arrears shall be no less than 20% of the current support obligation. After the full amount of any arrears is paid, you shall deduct for attorneys' fees and costs owed until the full amount Is paid.

$_per__ for attorneys' fees and costs totaling $_

$_per_for State of Florida Disbursement Unit fee (4% of each payment not to exceed $5.25 per payment]

Florida Family Law Rules of Procedure Form 12.996(a), Income Deduction Order (06/11)

$_Total amount of income to be deducted each pay period

3. You shall pay the deducted amount to the "State of Florida Disbursement Unit", and mail it to the State of Florida Disbursement Unit P.O. Box 8500, Tallahassee, FL 32314-8500, (tel.) (877) 769-0251. All payments must include the obligor's name (last, middle, first), obligor's social security number, obligee’s name (last, middle, first), name of county where court order originated, and case number. All payments must be made by check, money order, cashier's check, certified check, or through the Internet with access provided by the State of Florida www.flortdasdu.com. No credit will be given for any payments made directly to the obligee without a court order permitting direct payments.

4. If a delinquency accrues after the order establishing, modifying, or enforcing the obligation has been entered and there is no order for repayment of the delinquency or a preexisting arrearage, a payor shall deduct an additional 20 percent of the current support obligation or other amount agreed to by the parties until the delinquency and any attorneys' fees and costs are paid in full. No deduction may be applied to attorneys' fees and costs until the delinquency Is paid in full.

5. You shall not deduct in excess of the amounts allowed under the Consumer Credit Protection Act, 15 U.S.C. §673(b), as amended.

6. You shall deduct (Choose only one) ( ) the full amount, ( )_%, or( ) none of the income which is payable to the obligor in the form of a bonus or other similar one-time payment, up to the amount of arrearage reported in the Income Deduction Order or the remaining balance thereof, and forward the payment to the State of Florida Disbursement Unit. For purposes of this subparagraph, "bonus" means a payment in addition to an obligor's usual compensation and which is in addition to any amounts contracted for or otherwise legally due and shall not Include any commission payments due an obligor.

7. Child Support Reduction/Termination Schedule. Child support shall be automatically reduced or terminated as set forth in the following schedule:

Florida Family Law Rules of Procedure Form 12.996(a), Income Deduction Order (06/11)

(Continue on additional pages for additional children)

8. This Income Deduction Order shall remain in effect so long as the underlying order of support is effective or until further order of the court.

STATEMENT OF OBLIGORS RIGHTS. REMEDIES. AND DUTIES

9. The obligor is required to pay all amounts and fees specified within this Income Deduction Order.

10. The amounts deducted may not be in excess of that allowed under the Consumer Credit Protection Act, 15 U.S.C. §1673(b) as amended.

11. This income deduction order applies to all of the obligor's current and subsequent payors and periods of employment.

12. A copy of the Income Deduction Order will be served upon the obligor's payor or payors.

Florida Family Law Rules of Procedure Form 12.996(a), Income Deduction Order (06/11)

13. Enforcement of the Income Deduction Order may only be contested on the ground of mistake of fact regarding the amount owed pursuant to the order establishing, enforcing, or modifying the obligation, the arrearages, or the identity of the obligor, the payor, or the obligee.

14. The obligor is required to notify the obligee and, when the obligee is receiving IV-D services, the IV-D agency, within 7 days of any changes in the obligor’s address, payors, and the addresses of the obligor's payors.

15. In a Title IV-D case, if an obligation to pay current support is reduced or terminated due to emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, income deduction continues at the rate in effect Immediately priorto emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in fuli or until the amount of withholding is modified.

ORDERED on.

CIRCUIT JUDGE

COPIES TO: Obligee Obligor Other:_

Florida Family Law Rules of Procedure Form 12.996(a), Income Deduction Order (06/11)

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).