author: ALTENBERND, Judge.

text:
    D.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5267.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

D.W., a juvenile, appeals a restitution order requiring her to repay $400 to her grandmother. We reverse this order due to procedural irregularities.

D.W. went to a store with $400 to buy her grandmother a $360 money order. After she returned from the store, the $360 money order and $40 in change from the $400 disappeared. D.W.’s mother apparently found the $360 money order at a motel room at which D.W.’s mother was staying. Law enforcement initially took custody of the money order but then returned it to D.W.’s mother. The mother claimed she put the money order in the mail to the grandmother, and the grandmother claimed she never received the money order.

The State filed a delinquency petition against D.W. alleging that she had committed grand theft. D.W. eventually negotiated a plea by which the offense would be classified as a petit theft. Thus, for purposes of her adjudication and disposition, the court did not determine what D.W. had taken or its value. D.W. disputed the amount of restitution, and the juvenile court informed her that “we’ll have a restitution hearing.”

A few days after the entry of the disposition order, the juvenile court entered an order referring the restitution issue to a magistrate. The matter was delayed for reasons that are not important to our decision, and another judge entered a second such order of referral. The magistrate heard and decided the restitution issue. The report of the magistrate was signed on October 5, 2010, and filed on October 8. The report informed D.W. that she could file exceptions within ten days “in accordance with the Florida Rules of Juvenile Procedure 8.257(f).” Nevertheless, the order directing restitution, which does not refer to the magistrate’s report in any manner whatsoever, was signed and filed by the juvenile court on October 6 and, thus, precedes the report of the magistrate in the record.

The Florida Rules of Juvenile Procedure have several sections. One section deals with delinquency; another section deals with dependency and termination of parental rights proceedings. Rule 8.257(f) is a rule applicable to dependency and termination of parental rights proceedings. The parties have not cited and we have found no authority that would allow for the application of this rule in delinquency proceedings. Furthermore, we have found no other authority that allowed the juvenile court to delegate its judicial determination of the amount of restitution to a magistrate in this case, and this determination is generally deemed to be nondelegable. See Mansell v. State, 498 So.2d 604, 604 (Fla. 2d DCA 1986) (“The amount of restitution is a determination to be made exclusively by the trial court and cannot be delegated.”). Finally, even if such a delegation could be accomplished by administrative order, we found no administrative order in the Tenth Judicial Circuit authorizing this delegation.

It is evident from the record that the magistrate usually conducts dependency hearings and has little experience with hearings to set restitution. The magistrate even made findings “by clear and convincing evidence,” rather than by a preponderance of the evidence. The magistrate’s report does not actually resolve D.W.’s primary contention, which is that she should not be liable for the loss of the $360 money order after it was delivered to law enforcement and placed into the control of her mother. Finally, the fact that the juvenile court immediately signed and recorded the restitution order would be troubling to this court even if the magistrate had been authorized to conduct this hearing.

Reversed and remanded for a restitution hearing in the juvenile court.

DAVIS and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Orson W. BENN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-984.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2011.
    Rehearing Denied Jan. 27, 2012.
    Henry E. Marines of Law Offices of Henry E. Marines, P.A., Miami, for Appellant.
   MORRIS, Judge.

Orson W. Benn appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postcon-viction court mistakenly found that the State did not amend the information to remove the construction fraud counts after the defense moved for a judgment of acquittal. Despite this error, Benn’s motion is ultimately without merit. Therefore, we affirm the order of dismissal.

Affirmed.

VTLLANTI and KHOUZAM, JJ., Concur.


author: PER CURIAM.

text:
    Davon FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2761.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG and SALTER, JJ.
   On Remand From the Supreme Court of Florida

PER CURIAM.

We reconsider on remand our opinion in Francis v. State, 22 So.3d 788 (Fla. 3d DCA 2009), which was quashed by the Florida Supreme Court in Francis v. State, 75 So.3d 237 (Fla.2011). We with held issuance of our mandate pending Supreme Court review. Therefore, pursuant to the Supreme Court mandate, this Court’s opinion of November 18, 2009, is hereby withdrawn and we substitute the following in its place.

In 2007, Davon Francis was convicted of multiple charges, including three counts of attempted second-degree murder. Because the trial court in instructing the jury gave an erroneous jury instruction on the lesser included offense of attempted voluntary manslaughter, Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), we reverse those convictions for second-degree murder and remand for a new trial on those counts.

Reversed and remanded.


text:
    Louis SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2881.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Rehearing Denied Jan. 31, 2012.

      Louis Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011); Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006).


text:
    Kenya BROCKINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2848.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Kenya Brockington, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011).


author: SHEPHERD, J.

text:
    Patrick CRAWFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2401.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Patrick Crawford, in proper person.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   SHEPHERD, J.

The defendant, Patrick Crawford, appeals a summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800, in which he seeks additional credit for jail time served. On December 6, 2010, the defendant admitted to violating his probation in exchange for “thirty months in state prison with credit from the last booking date.” In his motion, the defendant seeks an additional 415 days of credit for time spent incarcerated prior to his violation of probation, arguing he never waived this credit.

As this argument is not cognizable under a rule 3.800(a) motion, we affirm without prejudice for the defendant to file a timely Florida Rule of Criminal Procedure 8.850 motion challenging his plea on this basis, should he choose to do so. See Johnson v. State, 60 So.3d 1045 (Fla.2011) (holding that challenges to plea agreement provisions concerning credit for time served are not cognizable in rule 3.800(a) motions because they present factual questions that cannot be resolved on the basis of trial court records.)

Affirmed without prejudice.


author: ROWE, J. BENTON, C.J.,

text:
    Gary GALLIGAR, former husband, Appellant, v. Terrie GALLIGAR, former wife, Appellee.
    No. 1D10-6108.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.

      William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Terrie Galligar, pro se, Appellee.
   ROWE, J.

The former husband appeals the trial court’s amended order granting his petition to reduce alimony payments to his former wife and directing him to pay a portion of the former wife’s attorney’s fees. Of the multiple issues raised by the former husband, we reverse on two. First, the trial court erred by modifying the permanent periodic alimony obligation to an amount which exceeded the former husband’s ability to pay. Second, the trial court erred in requiring the former husband to pay a portion of the former wife’s attorney’s fees.

FACTS AND PROCEDURAL HISTORY

The parties were divorced in 2005, and in the final judgment dissolving the marriage, the former husband was ordered to pay the former wife $5,000 per month in permanent alimony. At the time, the former husband was employed by a private label chemical company he had been with for 25 years, earning $175,000 a year. In April 2009, however, the 56-year-old former husband was informed that his contract would not be renewed and that he would receive one year’s salary in severance pay. The former husband ultimately found a job earning $66,000 annually.

On July 12, 2010, the former husband filed a petition to modify the final judgment of dissolution, requesting the court to reduce his monthly $5,000 permanent alimony obligation. In support of his petition, the former husband filed a financial affidavit, averring that he had a present monthly net income of $3,825 and present monthly expenses of $4,377. In response, the former wife submitted a financial affidavit, averring that she had a present monthly net income of $6,066 (including the $5,000 monthly alimony payment awarded under the 2005 judgment) and total monthly expenses of $6,501, resulting in a monthly deficit of $435.

On September 27, 2010, the trial court conducted a hearing on the former husband’s petition for modification. At the hearing, the former husband testified in regard to his assets and liabilities that his estimated monthly health insurance cost of $600 was a significant issue for him since he had a number of heart problems and procedures in the past, requiring approximately $250 per month in medication expenses not covered by insurance; that he had a first and second mortgage on his primary residence, a townhome, which he valued at approximately $98,000 as that was what a neighboring townhome had recently sold for; and that he paid $175 in quarterly homeowner’s association fees and $1200 annually for homeowner’s insurance. With regard to other assets, the former husband testified that he owned a 2005 Avalon purchased in February 2009, before he knew he was losing his job in April; a Ford Expedition and a motorcycle that he owned before the divorce; and a 2005 Triumph boat. In addition, the former husband testified that he had a 401(k) valued at $34,915, consisting of funds he and his employer contributed to his company’s 401(k) after the divorce; an IRA valued at $158,000, which he and the former wife split during the divorce; and another 401(k) that he and the former wife split, which is now with his new employer.

With regard to his ability to continue to meet his alimony obligations following the termination of his employment in 2009, the former husband testified that he paid alimony in August and September by taking money from his savings reserve and by borrowing money, and that at his current salary, which amounts to $5500 gross income per month, he is unable to continue to make $5000 monthly alimony payments.

The former wife testified that she is 57 years old, works 30 hours per week as a bookkeeper, and earns $1,033 per month. With regard to her assets, she testified that she bought a “high-rise” home with the money she received from the divorce, and she has an IRA with $245,000 in it, from which she has made withdrawals over a three-year period amounting to $123,000 to pay taxes, to purchase furniture for her condo, and to pay for the move. Regarding her expenses, the former wife testified that she has a $481 per month car payment for a car that she purchased after the divorce, and she needs alimony in order to pay the mortgage on her home. At the hearing she stated, “[Mjaybe I lived beyond what I should have.”

On October 4, 2010, the trial court issued an order granting the petition to modify the alimony obligation, reducing the former husband’s alimony payments from $5,000 per month to $3,500 per month and directing the former husband to pay $3,500 of the former wife’s attorney’s fees. The former husband filed a motion for rehearing, asserting that the trial court failed to give adequate consideration to the former husband’s ability to pay the $3,500 alimony awarded, which amounted to 81% of his net income. The former husband also contested the award of attorney’s fees, asserting that the former wife was in a better position to pay attorney’s fees.

The trial court issued an amended order granting the petition to modify the alimony award in which the trial court deleted a reference to the former husband’s IRA, and inserted a finding that the former husband has savings which he used to pay his August and September alimony payments and has borrowed some money since he lost his job. The court also added findings regarding the former husband’s activities after his severance and how he presumably funded those activities:

He additionally testified that he was aware his job would be terminated in April 2009 and he received his severance pay through July 29, 2010. He therefore had sixteen (16) months to anticipate the substantial loss of income. During this time he continued to receive his regular salary.... He could have easily planned ahead knowing that he might be out of work for a period of time by setting aside monies to meet his alimony obligation when his severance pay ended. Obviously he chose not to do so and while out of work had to use savings and other income he had to maintain his needs and could have also done so to [meet] his alimony obligations.

Further, the trial court addressed the former husband’s assertions that he lacked the ability to pay:

While the husband argues that his expenses exceed his income and that the support obligation i[s] an excessive amount, it does not take into consideration the other assets he has which he has used of his own admission to support himself that could also be used towards the obligation he has towards his former wife.

ANALYSIS

Permanent Periodic Alimony Award

We review the trial court’s order for abuse of discretion, recognizing that “[d]issolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and providing necessary support.” Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Under the facts of this case, we conclude that the trial court abused its discretion.

When awarding permanent periodic alimony, the trial court is obligated under section 61.08(2), Florida Statutes, to consider both the payee spouse’s need and the payor spouse’s ability to pay. See Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989); accord Rabbath v. Farid, 4 So.3d 778, 785 (Fla. 1st DCA 2009). A trial court may not require a payor spouse to make alimony payments to a former spouse in an amount which does not allow for the payor to support himself. See Pirino, 549 So.2d at 220 (“Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity.”). It is well settled that a court abuses its discretion when it orders alimony payments in an amount that virtually exhausts the payor spouse’s income and leaves him with practically no money to support himself. See, e.g., Williams v. Williams, 10 So.3d 651, 652-53 (Fla. 5th DCA 2009) (finding abuse of discretion where child support and alimony payment was 97% of husband’s net income); Squindo v. Osuna-Squindo, 943 So.2d 232, 234 (Fla. 3d DCA 2006) (reversing payment equaling 70% of net income); Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990) (finding abuse of discretion in award of 79% of husband’s income), disapproved on other grounds by Acker v. Acker, 904 So.2d 384 (Fla.2005). Here, the trial court’s order requires the former husband to pay 81% of his current net income to the former wife and to try to live on $831.02 a month when his own minimum financial need is $2,879 per month. Because the trial court’s modified alimony award effectively exhausts the former husband’s income, we conclude that the trial court abused its discretion. See Williams, 10 So.3d at 652-53. We, therefore, reverse the trial court’s alimony award and remand for further proceedings.

While under section 61.08(2), Florida Statutes, and well settled case law the trial court may consider net worth, past earnings, and the value of the parties’ capital assets, see Acker, 904 So.2d at 388, the trial court cannot require the former husband to incur indebtedness to pay alimony. See, e.g., Konsoulas v. Konsoulas, 904 So.2d 440, 444 (Fla. 4th DCA 2005) (“[T]he standard of living enjoyed by the parties to the marriage cannot necessarily be maintained where the parties lived beyond their means, and the former husband can no longer financially support the standard of living.”); Sheiman v. Sheiman, 472 So.2d 521 (Fla. 4th DCA 1985) (reversing level of alimony where former husband did not have the present ability to pay the amount awarded). Further, -while the trial court may properly consider the former husband’s assets in determining his ability to pay, the court cannot require the former husband to deplete assets to make alimony payments. See Austin v. Fernandez, 898 So.2d 118, 119 (Fla. 3d DCA 2005) (reversing where depletion of assets was required for former husband to make alimony payments after involuntary loss of executive income). Here, the trial court found that the former husband had savings which he used to pay his August and September alimony payments and that the former husband had borrowed money since he lost his job. To the extent that the trial court’s alimony award is based upon a finding that the former husband had the ability to borrow funds or to deplete his assets to meet future alimony obligations, the trial court erred, especially in light of the relative financial positions of the parties. Further, while the trial court may consider assets awarded to the former husband during distribution for the purposes of determining alimony, see Acker, 904 So.2d at 388-89, requiring him to exhaust those assets to make alimony payments renders the modified alimony obligation inequitable. See Gentile, 565 So.2d at 822-23.

We are also compelled to briefly address the trial court’s finding that the former husband should have set aside funds to meet his future alimony obligations in the year following termination from his long-term employer. Notably, during this period the former husband was required to make $5,000 monthly alimony payments under the 2005 Judgment. The trial court’s finding that the former husband “could have easily planned ahead knowing that he might be out of work for a period of time by setting aside monies to meet his alimony obligation when his severance pay ended” has no legal foundation. We reject the suggestion by the trial court that a party who is meeting a current alimony obligation is required to set aside additional funds to meet future alimony obligations, in anticipation of a potential loss of income. Cf. Nelson v. Nelson, 651 So.2d 1252, 1254 (Fla. 1st DCA 1995) (“As a general rule, trial courts may not consider future or anticipated events in setting current alimony and child support amounts due to the lack of an evidentiary basis or the uncertainty surrounding such future events.”). The law requires nothing of the sort. Cf. Canakaris, 382 So.2d at 1201-02 (“The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.... Once instituted, permanent periodic alimony is subject to modification upon a substantial change of circumstances....”).

Attorney’s Fees Award

The former husband also asserts that the trial court erred in ordering him to pay $3,500 towards the former wife’s attorney’s fees because the record was clear that the former wife was in a superi- or financial position and could pay her own fees. We agree.

Section 61.16, Florida Statutes, allows for the trial court to order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties. This is “to ensure that both parties have similar ability to secure competent legal counsel.” Vitalis v. Vitalis, 799 So.2d 1127, 1132 (Fla. 5th DCA 2001). Where both parties to a dissolution are equally able to pay attorney’s fees, the trial court abuses its discretion by requiring one spouse to pay the other’s attorney’s fees. Peak v. Peak, 411 So.2d 325, 328 (Fla. 5th DCA 1982). Here, the trial court’s order shows that the former husband’s salary is $5,500 per month, that the former wife’s net income is $1,033, and that the former wife will receive $3,500 per month in alimony. After the allocation of alimony from the former husband to the former wife, the former husband is in no better position to pay attorney’s fees than the former wife is. Where, as here, an equitable distribution of the marital property has been achieved and the trial court has equalized incomes through its alimony award, the trial court abuses its discretion in awarding attorney’s fees. Vitalis, 799 So.2d at 1133 (citing Naugle v. Naugle, 632 So.2d 1146 (Fla. 5th DCA 1994)); accord Gaudette v. Gaudette, 890 So.2d 1161, 1162 (Fla. 1st DCA 2004). For these reasons, we reverse the trial court’s award of attorney’s fees to the former wife.

REVERSED AND REMANDED.

HAWKES, J., concurs; BENTON, C.J., concurs in judgment.

BENTON, C.J.,

concurring in judgment.

I concur in reversing and remanding the alimony modification order for reconsideration in light of the parties’ current circumstances. The trial court’s rationale in awarding the amount of alimony it did is necessarily time-limited: The savings the trial court reasoned Mr. Galligar could and should have set aside could not cover even his reduced alimony obligation indefinitely. After it had ruled, moreover, Mr. Galligar represented to the trial court that his new employer had stopped paying him and that he would have “no income for the foreseeable future.”

As for attorney’s fees, “a trial court has the discretion to award attorney’s fees in modification proceedings after considering the parties’ financial resources.” McQuaig v. McQuaig, 36 So.3d 801, 804 (Fla. 1st DCA 2010) (citing § 61.16(1), Fla. Stat. (2008)). The trial court should take into account any alimony awarded on remand, in determining the financial positions of the parties for fee award purposes. See Pelton v. Pelton, 617 So.2d 714, 717 (Fla. 1st DCA 1992).


author: WELLS, Chief Judge.

text:
    Willie BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D10-2166, 3D11-1393.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.
    Rehearing Denied Jan. 31, 2012.

      Willie Brown, in proper person.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD, and SUAREZ, JJ.
   WELLS, Chief Judge.

In these consolidated cases Willie Brown appeals from orders denying his Florida Rule of Criminal Procedure 3.850 motion in which he raised the following ten claims of ineffective assistance of trial counsel:

I. Ineffective Assistance of Counsel:
Counsel’s failure to inform and discuss with the Defendant a potential defense of an Independent Act where the evidence would have been supportive.
II. Ineffective Assistance of Counsel:
Counsel’s misadvi[c]e interfered with Defendant’s right to testify.
III. Ineffective Assistance of Counsel:
Counsel engaging in virtually no pretrial investigation, and advising Defendant not to testify, thus allowing [the] State’s version of events to go uncontradicted.
IV. Ineffective Assistance of Counsel:
Counsel’s misinformation to Defendant that a Defendant in a criminal proceeding can not be found guilty based upon circumstantial evidence, eause[d] an unintelligent rejection of the [S]tate’s plea offer.
V. Defense counsel rendered ineffective assistance by failing to properly advis[e] the defendant on his right to testify. Wherefore counsel misadvised defendant in violation of the sixth and fourteenth amendment right of the United States constitution.
VI. Prior to trial, counsel rendered ineffective assistance by failing to object [to] Kwanza Boykin’s trial testimony that Defendant had taken 40 or 50 stolen cars to her house.
VII. Counsel was ineffective for arguing in closing defendant[’s] prior contact with police, when defendant did not testify if defense counsel in closing argument would have not made the following comments. (See comments on page 1718 of the trial transcript).
VIII. Counsel was ineffective for failing to object and motion for mistrial for Williams rule violation when the jury was allowed evidence of defendants] past crimes (criminal history) bad acts, and incarceration in violation of 6th and 14th amendment u.s. [sic] Constitution.
IX. Counsel rendered ineffective assistance by failing to object to redaction of defendant’s taped confession which altered defendant’s statement, causing prejudice where jury could not hear that fact as they were told in violation of the 6th and 14th amendment of the constitution.
X. Ineffective Assistance of Counsel: Counsel’s multiple deficiencies.

Following an evidentiary hearing during which Brown’s testimony was contradicted by the testimony of his prior trial counsel, the court below rejected Brown’s testimony as not credible and denied claims one through seven of Brown’s motion. The trial court thereafter, with the parties’ consent, listened to over six hours of taped recordings of Brown’s conversations with the police and reviewed the transcripts of those tapes. While finding some inaccuracies in the transcriptions of those tapes, the court below concluded that the inaccuracies had no effect on the outcome of this case and rejected claims eight and nine of Brown’s motion regarding transcription errors. Based on the evidence adduced at the earlier hearing, and review of the tapes and the transcription of them, the trial court denied Brown’s motion ruling that Brown was not credible; that he had failed to sustain his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); that the behavior of his counsel, about which Brown complained, constituted reasonable tactical decisions; and that Brown had failed to “show the reasonable probability that [but] for counsel’s unprofessional performance the proceedings would have been different.”

Based on our review of the record, we find no error in any of the trial court’s determinations and therefore affirm denial of Brown’s motion.

Affirmed.

      . The trial court issued its initial order denying relief July 26, 2010, and thereafter clarified its denial of relief with two subsequent orders, filed March 9, 2011.

      . Counsel was appointed to represent, and represented, Brown at the hearing on his Rule 3.850 motion.

      . Brown’s tenth claim was cumulative error requiring no ruling in light of the court’s rulings on claims one through nine.


author: PER CURIAM. EMAS, J.,

text:
    VERABELLA FALLS CONDOMINIUM, ASSOCIATION, INC., Appellant, v. Carlos SOSA, Appellee.
    No. 11-815.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.
    Warren P. Gammill, and Madelin D’Arce, Miami, for appellant.
    Andrew C. Demos and Mark A. Stuart, Miramar, for appellee.
    Before EMAS, and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

EMAS, J.,

concurring.

I concur in affirming, but write to address one of the arguments made by appellant in this case.

Carlos Sosa, the plaintiff below, filed a civil action and served a copy of the summons and complaint on the registered agent of defendant Verabella Falls Condominium Association, an entity qualified to transact business in the state of Florida. The certified return indicated that service was made upon the receptionist at the registered agent’s office. When Verabella Falls failed to respond to the complaint, Sosa moved for and obtained a default and default final judgment.

Verabella Falls later filed a motion to vacate the final judgment, pursuant to Florida Rule of Civil Procedure 1.540. That motion was denied and this appeal followed. In its appeal, Verabella Falls argues that the process server was required to follow the corporate hierarchy set forth in section 48.081(1), Florida Statutes (2004), asserting that this subsection applies equally to service on a corporate defendant and its registered agent. This argument is without merit.

Section 48.081, Florida Statutes (2004), provides in pertinent part:

(1) Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the state.
(2) If a foreign corporation has none of the foregoing officers or agents in this state, service may be made on any agent transacting business for it in this state.
(3)(a) As an alternative to all of the foregoing, process may be served on the agent designated by the corporation under s. i.8.091. However, if service cannot be made on a registered agent for failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent. A person attempting to serve process pursuant to this paragraph may serve the process on any employee of the registered agent during the first attempt at service even if the registered agent is temporarily absent from his or her office.

(Emphasis added).

Verabella Falls cites our decision in Lisa, S.A. v. Gutierrez, 806 So.2d 557 (Fla. 3d DCA 2002) for the proposition that service upon a registered agent must follow the hierarchy set forth in section 48.081(l)(a) through (d). However, appellant misconstrues Lisa and the case it relied upon, Washington Capital Corp. v. Milandco, Ltd., Inc., 665 So.2d 375 (Fla. 4th DCA 1996). In each of those cases, the defendant was a foreign corporation not qualified to transact business in this state, and therefore had not designated (and was not required to designate) a registered agent in Florida for purposes of receiving service of process. See § 48.091(1), Fla. Stat. (2011) (requiring “[ejvery Florida corporation and every foreign corporation now qualified or hereafter qualifying to transact business in this state shall designate a registered agent....”). Because the defendants in Lisa and Washington Capital were foreign corporations not qualified to transact business in this state, and had no registered agent in Florida, service of process could not be made pursuant to the alternative provided in section 48.081(3), but had to be accomplished pursuant to the hierarchical categories of section 48.081(l)(a)-(d). S.T.R. Indus. v. Hidalgo Corp., 832 So.2d 262 (Fla. 3d DCA 2002).

Lisa does not stand for the proposition that service of process on registered agents of corporations qualified to transact business in Florida must comply with the hierarchical provisions of section 48.081(l)(a)-(d). This would contravene the plain language of section 48.081(3)(a), which expressly provides an alternative method of service of process upon registered agents of such corporations.

      . Section 48.091, Florida Statutes (1976) provides:
      (1) Every Florida corporation and every foreign corporation now qualified or hereafter qualifying to transact business in this state shall designate a registered agent and registered office in accordance with chapter 607.
      (2) Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these hours. The corporation shall keep a sign posted in the office in some conspicuous place designating the name of the corporation and the name of its registered agent on whom process may be served.


text:
    Robert John DOYLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2861.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.
    Rehearing Denied Jan. 31, 2012.
    Robert John Doyle, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

The defendant’s motion under Florida Rule of Criminal Procedure 3.800 was denied by the trial court. Because the motion challenges the defendant’s conviction rather than his sentence, we treat his motion as a motion under Florida Rule of Criminal Procedure 3.850. See, e.g., Rivas v. State, 43 So.3d 154, 156 (Fla. 3d DCA 2010); Hilbert v. State, 661 So.2d 895, 895-96 (Fla. 3d DCA 1995). The motion was untimely on its face and thus properly denied.

Affirmed.


text:
    Wade POUNDS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1462.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 2012.
    Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defendant, for appellant.

      Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See State v. Roby, 246 So.2d 566 (Fla.1971); Thomas v. State, 293 So.2d 88 (Fla. 2d DCA 1974).


author: WARNER, J.

text:
    Raymond KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2436.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 14, 2012.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Raymond Kelly appeals his conviction on multiple counts of armed sexual battery, kidnapping, robbery, and impersonating an officer. He claims that the trial court erred in denying his motions to suppress evidence found in his office desk drawer, as well as a backpack in his home, both places having been searched by the authorities without a warrant. We hold that the court did not err in denying the suppression of evidence from his office desk, as Kelly had no expectation of privacy and his employer gave permission for the search. As to the search of the backpack, the detectives did not have consent to search the backpack, but the admission of its contents constitutes harmless error. In addition, Kelly contends that ineffective assistance of counsel appears on the face of the record, where his counsel failed to object to the admission of Kelly’s statement where he invoked his right of silence. This issue cannot be addressed, however, on direct appeal. We affirm.

The incident giving rise to the charges, the facts of which we briefly recite, began with the victim seeking a ride on a street corner after having left a party. A man approached her, claiming to be a detective, and offered assistance. Instead, he placed her in his car, blindfolded, bound and gagged her, and drove her to another area where he committed various sexual batteries upon her, taking pictures as he did so. He then let her go. Eventually, the police found her and took her to a sexual assault center. Later, after they had developed a suspect, they showed her a photo lineup where she positively identified Kelly as her attacker. DNA swabs taken from her body proved a positive match for Kelly’s DNA.

Police connected Kelly to the crimes through papers left in a dumpster two blocks from the crime scene of a different sexual battery victim. The papers identified Cynthia Morales (Kelly’s girlfriend). Officers located Morales who identified Kelly in a surveillance photograph taken at a nearby gas station. Morales consented to a search of her home, and evidence was taken, including several cameras.

As a result, police arrested Kelly, and he was taken to the police station where he was given Miranda warnings and talked to police. In that statement Kelly told the officer that he had met a woman at the beach who had posed nude for him. The victim looked like the woman he had met, but he denied having sex with her. He consented to a DNA sample, a computer search, and a camera search. In his briefcase, which was in his possession at the time of the interview, the officers found the victim’s camera and discovered pictures from that camera on his laptop computer.

Kelly testified at trial, denying all of the charges, and claiming that the pictures on the laptop were put there by a friend. The jury found him guilty, and the court convicted him and sentenced him to life in prison as a habitual felony offender and dangerous sexual offender, resulting in this appeal.

Kelly claims that the trial court erred in denying his motions to suppress evidence taken from his office desk and the house where he lived. The trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness, and the court must interpret the evidence, inferences and deductions therefrom in favor of sustaining the trial court’s ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). While the appellate court is bound by factual determinations which are supported by competent substantial evidence, it reviews mixed questions of fact and law de novo. Cote v. State, 14 So.3d 1137, 1139 (Fla. 4th DCA 2009).

Property Seized From Workplace

Kelly worked as a front desk manager at a local hotel. He shared an office with another employee where he had an assigned desk and desktop computer. Other employees would come into the office to use office equipment or obtain paperwork. Although other employees generally did not go into Kelly’s desk, his desk had been searched by others on a few occasions, when he was not present, to locate missing paperwork or keys.

The general manager of the hotel testified that around the time that the police called regarding Kelly, Kelly was fired because he had failed to show up for work for three days without contacting the hotel. Company policy required termination in that instance. Police called the hotel and asked to search Kelly’s desk area, telling the manager that Kelly was in jail. The manager gave his permission. When the officers arrived the next day, they searched the desk. In the top drawer, they found a Blackberry phone, which belonged to the victim, and a camera. A box underneath the desk contained material associated with the crime scene of two different incidents for which Kelly was being investigated. From the outside of the box, markings identified it as being from the business where two of the crimes occurred. A bag with a laptop in it was also found. The detectives who searched the desk testified that the general manager had given them permission to search the area, and they proceeded on that authority.

Kelly moved to suppress the evidence seized in the search of the desk. He claimed at the hearing that the general manager did not have the authority to consent to the search of his desk, even though Kelly was no longer an employee of the hotel. In denying the motion, the trial court made findings of fact and concluded that Kelly had no expectation of privacy. The court specifically found:

Based on the evidence presented, which includes the testimony of the witnesses, this Court finds that the Defendant had no expectation of privacy in the office which he shared with another employee. He had been previously terminated from employment before the detectives arrived to search the office. Other employees and his supervisor had unlimited access to his office and inside the desk.... [T]he Hotel’s general manager, testified ... that the desk, including the drawers, was accessible to other employees. The desk was not locked.

The court also found that the general manager, as the direct supervisor of Kelly, had the authority to consent to the search of the workplace, and that the police acted on his apparent authority to grant permission.

State v. Young, 974 So.2d 601 (Fla. 1st DCA 2008), aptly summarizes the legal principles involved in analyzing whether a legitimate expectation of privacy exists in an office setting:

To invoke the protection of the Fourth Amendment, a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. Smith, 442 U.S. at 740, 99 S.Ct. 2577. The reasonableness of an expectation of privacy in a particular place or item depends on context. O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Specifically, the reasonableness of an employee’s expectation of privacy in his or her office or the items contained therein depends on the “operational realities” of the workplace, id. at 717, 107 S.Ct. 1492, and not on legal possession or ownership. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The likelihood that a person has an objectively reasonable expectation of privacy in an office setting is increased where the area or item searched is “reserved for [the defendant’s] exclusive personal use.” See id. at 368, 88 S.Ct. 2120. Other factors that have been considered in determining the legitimacy of an expectation of privacy in an item seized from an office include the employee’s relationship to the item, whether the item was in the employee’s immediate control when it was seized, and whether the employee took actions to maintain a sense of privacy in the item. United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir.1998). Many times, an employee may have a legitimate expectation of privacy in his or her personal office and in personal items stored in a desk or file cabinet. See O’Connor, 480 U.S. at 716-18, 107 S.Ct. 1492.

Id. at 608. In Young, the court determined that a pastor had a legitimate expectation of privacy in his private office at the church where the office was locked with a key different from the church master key and only he and the church secretary had keys to the office. No one was permitted to enter the office without the pastor’s permission. Likewise, in Bateman v. State, 513 So.2d 1101 (Fla. 2d DCA 1987), the court found that an employee had a legitimate expectation of privacy in his desk drawer of a locked office, where he had not shared his desk with anyone for the entire nineteen years he had worked for the employer.

Closer to the facts of this case, however, is People v. Crawford, 632 P.2d 626, 628 (Colo.App.1981), where the court determined that an employee who shared an office with other employees had no expectation of privacy, and it approved a war-rantless search of the desk and file cabinets that he used. Likewise, in People v. Duvall, 170 Mich.App. 701, 706-07, 428 N.W.2d 746, 748-49 (1988), a deputy sheriff was held not to have a legitimate expectation of privacy in his desk in an office he shared with other officers.

In this case, the trial court’s findings that Kelly had no expectation of privacy is supported by the facts as found by the trial court, to which we defer. Kelly shared the office with another employee, and other employees had full access to the office. No locks were on the desk, and the desk drawers were accessible to others who, upon at least some occasions, did look through the desk. Kelly’s permission was not always sought in going through his desk. Under these circumstances, applying the law to the facts as found by the trial court, we conclude that Kelly had no legitimate expectation of privacy. Therefore the search of his desk without a warrant did not violate the Fourth Amendment, and the court did not err in suppressing the Blackberry admitted into evidence.

In addition, the trial court found that the general manager, Kelly’s direct supervisor, consented to the search, thus providing authority to the officers who conducted the search. The government may justify a warrantless search by proving “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Common authority “rests ... on mutual use of the property by persons generally having joint access or control for most purposes.... ” 415 U.S. at 171 n. 7, 94 S.Ct. 988.

In considering the issue with respect to employer/employee relationships, “even where a private employee retains an expectation that his private office will not be the subject of an unreasonable government search, such interest may be subject to the possibility of an employer’s consent to a search of the premises which it owns.” United States v. Ziegler, 474 F.3d 1184, 1191 (9th Cir.2007). Here, the general manager consented to the search. The general manager had ultimate control over all premises. He could authorize the search of the premises, including an employee’s desk, as he had done in the past to search for missing documents or keys. Thus, the trial court did not err in determining that the consent of the general manager provided authority to the officers to search Kelly’s desk.

For both of the reasons given by the trial court, we conclude that the warrant-less search did not violate the Fourth Amendment.

Search of Home

Kelly lived with his girlfriend Cynthia Morales in her home. When the officers associated her with Kelly, they asked to search her home. She consented, and the officers searched and seized cameras, computers, and items connected with various crimes they were investigating. Two days later, after listening to a tape recording of a conversation between Kelly and Morales at the jail, the officers heard Kelly tell Morales to get rid of a red backpack. They asked Morales if they could search her home again. She consented and let them search the area. They found the red backpack in the garage and searched it, finding evidence connected with this crime.

At the hearing on the motion to suppress the evidence found as a result of the two home searches, Morales testified that she felt she had to consent and was nervous and scared. As they searched the house, she said she told them which items belonged to Kelly. The officers, on the other hand, generally testified that she had freely consented to the search of her home and signed a consent to search form. She never told them they could not search in any particular area or object, and she did not object. They both admitted, however, that she would identify what belonged to Kelly and what belonged to her. They testified that Morales never asserted that she did not have control or authority over any of the things they took. According to one of the detectives, Morales had said that they should take anything that was there because whatever they didn’t take she was “donating,” and she asked if she could throw it away or get rid of it. The trial court made findings of fact that Morales had authority to give consent to the search of her home and that her consent was free and voluntary. The court did not distinguish between consent to search the home and consent to search the red bag or any of the other personal property within the home. The court denied the motion to suppress.

The Fourth Amendment prohibition against warrantless searches of an individual’s property does not apply when officers obtain consent either from the individual whose property is to be searched or from a third party who possesses “common authority” over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). The Supreme Court defined what common authority meant in Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993, in which the court stated:

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent ... rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Because Morales was the owner and co-resident of the house, it is undisputed that she would have “common authority” to permit the search of her home. That does not, however, provide consent to search Kelly’s closed red bag inside of her home unless her authority over it may be established.

Judge Griffin thoroughly analyzed the issue of apparent authority to consent to the search of personal property within premises over which common authority may be exercised in Marganet v. State, 927 So.2d 52 (Fla. 5th DCA 2006). In that case, the girlfriend of the defendant gave consent to the police to search a hotel room where both she and the defendant were staying. She told the police that drugs would be found in the defendant’s shaving kit inside his suitcase. The officers opened both the suitcase and the shaving kit and found drugs. Although the court found that the girlfriend had actual authority to consent to the search of the hotel room, this finding did not resolve the question of whether she could consent to the search of the suitcase and shaving kit.

In the opinion, Judge Griffin found that two lines of cases have developed on the issue. Some courts permit the search of personal property on the following rationale:

A number of courts appear to hold that common authority over the premises is sufficient to authorize a third party to consent to search personal property found on the premises. Most courts adhering to this viewpoint reason that the right of common authority over the premises establishes a right to access all property on the premises, at least in the absence of a contrary showing.

Id. at 56 (footnotes and case citations omitted). The other view, which Marganet attributes as the majority position, finds that the common authority over the premises does not, in and of itself, permit search of any personal property contained within the premises:

[Bjased on Matlock, most courts find that there is no right on the part of a third party to consent to a search of personal property belonging to another person unless there is evidence of. both common authority over and mutual usage of the property.... This viewpoint appears to be based on the language contained in Matlock, that “the right to consent rests not on the law of property but rests rather on mutual use of the property by persons generally having joint access or control for most purposes .... ”

Id. at 57-58 (emphasis in original) (citations omitted). Specifically dealing with the issue presented in this case, Judge Griffin further explained that the state must do more than assume that joint control over the premises is sufficient to provide authority to consent to the search to any personal property on those premises, as the officers in this case assumed: “When police are told by a third party that the property belongs to another, the officers are obligated to make inquiries sufficient to establish that the person consenting to the search has both common control over the property and mutual use of it.” Id. at 58 (citations omitted). Citing to Silva v. State, 344 So.2d 559 (Fla.1977), Judge Griffin concluded that Florida followed the majority position “that something more than mere joint control of the premises must be shown before a person has the right to consent to a search of property personal to another.” Marganet, 927 So.2d at 59. Silva stands for the proposition that a wife or girlfriend could not consent to the search of a husband/boyfriend’s personal effects in the joint premises where they reside. 344 So.2d at 564. “Silva suggests that a third party’s consent to search may be ineffective with respect to property clearly identifiable as belonging to another, in the absence of evidence of mutual use of the property.” Marganet, 927 So.2d at 60.

Summarizing, Marganet explained that the state has the duty to prove through specific facts that the third party has the authority over the particular object to be searched:

Taken collectively, these cases suggest that a number of factors bear on the rights of a third party to consent to a search of a container. They include such factors as whether the property clearly belongs to one person; whether it is generally used by one person, whether it is freely accessible to others, whether the container is closed or open, whether it is locked or unlocked, and whether orders have been given not to open the container. The relationship of the parties and the nature of the property may also have a bearing on the right to consent to a search. As was pointed out in United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000), “it is less reasonable for a police officer to believe that a third party has full access to a defendant’s purse or a briefcase than, say, an open crate.” Moreover, a wife may have a right of access to her husband’s shaving kit that a roommate or girlfriend does not. The burden is on the State to show that police were given free and voluntary consent to enter the premises by someone with actual or apparent authority to do so. Williams v. State, 788 So.2d 334, 336 (Fla. 5th DCA 2001). Thus, when making entity or conducting a search, an officer must elicit sufficient facts from which he or she can determine that the person consenting to the search has common authority over the premises or property to be searched. Saavedra v. State, 622 So.2d 952, 959 (Fla.1993).

Id. at 60-61 (emphasis supplied).

Applying Marganet to this case, we conclude that the search of the red bag violated the Fourth Amendment. While Morales had actual authority to consent to the search of her house which she shared with Kelly, the officers did not establish that she had authority to consent to the search of the red bag found in the garage of the home. In fact, the officers testified that they believed that Morales’ consent to search her home allowed them to search anything within it. They were very much mistaken in their view of their legal authority. They did not elicit any facts to show that Morales had authority to permit their search of the red bag. In fact, during both searches of the home, Morales repeatedly identified property belonging to Kelly. The officers did not attempt to establish that Morales had joint control over those items, and indeed her statements to them showed that she did not have anything to do with the red bag. Under these circumstances we cannot conclude that Morales had authority to consent to the search of the red bag. Therefore, the search violated the Fourth Amendment.

Nevertheless, we conclude that the admission of the evidence in the red bag was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). The relevant evidence from that bag constituted flex cuffs and blue tape which were used by Kelly on the victim during the sexual battery. Pictures admitted in evidence from Kelly’s computer also showed the victim with blue tape on her eyes and flex cuffs on her wrists. In addition, Kelly’s DNA was found on her body, and her camera and Blackberry were found in his possession, thus tying him to the victim. That Kelly had possession of similar flex cuffs and blue tape in his backpack did not add material evidence to the state’s case that was not already confirmed with other evidence. Despite the Fourth Amendment violation, we conclude that the error does not merit reversal.

Ineffective Assistance of Counsel

Kelly argues that his counsel was ineffective for failing to file a motion to suppress statements made after Kelly exercised his right to remain silent during his interrogation by officers. Generally ineffective assistance of counsel is not cognizable on direct appeal; the exception is where ineffectiveness is apparent on the face of the record. Mansfield v. State, 758 So.2d 686, 642 (Fla.2000). Here, we cannot say that ineffectiveness is so readily apparent that we should reverse without further development in postconviction proceedings. The statement, “I’m talking to you no more,” appears close to that deemed equivocal in State v. Owen, 696 So.2d 715, 717-18 & n. 4 (Fla.1997) (“I don’t want to talk about it.”). Postconviction proceedings are more appropriate to flesh out whether the failure to object constitutes deficient performance by the attorney and whether it was prejudicial to the outcome. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

POLEN and GERBER, JJ., concur.

      . Although the officers opened the bag to obtain the laptop, before examining the laptop, they obtained a search warrant. The laptop seized at the hotel, however, did not have any incriminating evidence on it. As far as we can tell from the record and the briefs, nothing from that particular laptop was admitted in evidence.

      . Neither at trial nor on appeal does the state argue that Kelly’s direction to Morales to get rid of the red bag constitutes an abandonment of it such that Fourth Amendment protection would not apply. See U.S. v. Basinski, 226 F.3d 829, 836-38 (7th Cir.2000).


author: LEVINE, J.

text:
    Alan SCHEIN and Results Technologies, Inc., a Florida corporation, Appellants, v. ERNST & YOUNG, LLP, a Delaware limited liability partnership, Appellee.
    Nos. 4D09-3614, 4D10-4656.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Jack Scarola, Patrick E. Quinlan of Se-arcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, and Robert M. Mayer, Miami, for appellants.
    Elliot H. Scherker, Julissa Rodriguez, Paul R. Lipton, Elliot B. Kula, and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, and Barry Richard, Laureen E. Galeoto of Greenberg Traurig, P.A., Tallahassee, and Stanley J. Parzen of Mayer Brown, LLP, Chicago, Illinois, for ap-pellee.
   LEVINE, J.

Appellants appeal from a judgment in their favor, and appellee cross-appeals. We affirm all issues raised without discussion, with the exception of one issue raised on direct appeal, which we reverse. The issue we discuss is whether Illinois’s audit interference doctrine, which permits evidence of a client’s negligence only where the client interferes with an auditor’s services, should be extended to apply to a third party. We find, under the specific facts of this case, that the doctrine applies to the third party appellants. We further find that, because there was no evidence that appellants interfered with appellee’s services, the trial court erred in denying appellants’ motion for directed verdict on appellee’s comparative negligence defense.

Appellant Alan Schein developed a telemarketing system known as the Results System. In 1998, Schein sold a 50% interest in the Results System to Superior Bank. Schein was placed in charge of the bank’s Universal Lending Division (“ULD”), which utilized this system. An “unwind” provision allowed either party to force a sale of the division with the proceeds to be equally divided between Schein and Superior.

As part of the 1998 agreement, Superior was required to provide appellants with “copies of its audited financial statements as soon as practicable after the preparation and distribution thereof.” Superior informed appellee Ernst & Young, LLP, of Superior’s contractual obligation to provide original copies of the audit reports to appellants.

Appellee served as Superior’s auditor since 1988, during which time Superior relied on appellee’s accounting methodology. Appellee consistently issued “clean” audit opinions for Superior. In 1996, Schein contacted appellee and was assured by appellee that Superior’s accounting methodology was “conservative.” In 1998, an independent review partner for appellee refused to “sign off’ on Superior’s audit due to concerns he had about the methodology used to calculate gains on the sale of loans, the valuation of residuals, and the accounting treatment of cash. Neither Superior nor appellants were aware of the independent review auditor’s refusal to sign.

In 2000, Superior hired appellee for a special engagement, specifically to review Superior’s accounting methodology and valuation methods as it pertained to the bank’s interest in securitized mortgages. This special engagement would assist Superior in evaluating the current method of calculating “the present value of financial residuals resulting from the securitization and sale of mortgage loans.” Superior’s chief accounting officer stated that the special engagement was “for everybody within the organization, as well as our investors, and our regulators and our contractual partners.” Appellee was informed that a primary purpose of the special engagement was to benefit contract partners of Superior, such as appellants.

Appellee issued a report concluding that Superior’s accounting methodology was in accordance with generally accepted accounting procedures (GAAP). The chairman of Superior provided appellants with a copy of the report. The special engagement report was important to appellants because it affirmed that Superior was financially sound. Additionally, the report would have alerted appellants to any financial concerns, allowing them to unwind to protect their investment.

Federal regulators, after receiving this report, requested that Superior reduce its reported assets by $117 million. Appellee initially disputed this, but a few days later admitted to Superior’s chairman that ap-pellee “made a mistake.” Appellee determined that the proper reduction, due to accounting methodology, was a total of $420 million dollars in “write-downs.”

Federal regulators took control of Superior. At that point, appellants sought to “unwind” ULD, but the federal regulators would not allow Superior to proceed. In 2001, appellant Results Technologies sold its 50% interest in the Results System to Superior for $12 million dollars. In 2004, the FDIC, which was the appointed receiver for Superior, entered into a settlement agreement with appellee.

In 2003, appellants filed a complaint against appellee claiming causes of actions for professional negligence, gross negligence, and fraud as well as punitive damages. The trial court determined that since Superior was an Illinois company, Illinois law would govern the claims for negligence and gross negligence. Subsequently, the trial court granted appellee’s motion for summary judgment regarding the causes of action for professional negligence and gross negligence for the annual audits performed by appellee. The trial court denied summary judgment for the claims of professional negligence and gross negligence for the special engagement report as well as the claim of fraud. Accordingly, the case proceeded to trial on the claims of professional negligence and gross negligence for the special engagement, as well as fraud.

At the close of the evidence, appellants moved for a directed verdict on appellee’s defense of comparative negligence. Appel-lee claimed that under Illinois law, comparative fault may be considered in a claim against an accountant, such as appellee. Appellants claimed that the comparative negligence defense can be considered only where there is interference with the performance of the auditor or accountant’s duties. Appellants argued that they had nothing to do with the audit, and consequently they could not have interfered with the audit. The trial court allowed the comparative negligence issue to remain for the jury to decide.

The jury found appellees negligent with regard to the special engagement report. The jury found damages of $6 million for appellant Results Technologies and $10 million for appellant Schein. The jury also found Results Technologies 80% negligent and Schein 40% negligent. The jury did not find gross negligence on the part of appellee as it related to the special engagement, nor did the jury find any fraud. The court entered a final judgment reducing the amount of damages awarded in proportion with the percentage of comparative fault. The judgment also awarded prejudgment interest. An appeal and cross-appeal ensue.

The standard for reviewing a trial court’s ruling on a motion for directed verdict is de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). Additionally, the standard for reviewing a trial court’s application of foreign law is also de novo. Maryland Sound Indus., Inc. v. Simmons, 845 So.2d 922, 924 (Fla. 4th DCA 2003). “A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.” Meruelo, 12 So.3d at 250.

Appellants contend that the trial court erred in denying their motion for directed verdict on appellee’s comparative negligence defense, inasmuch as the relevant Illinois law allows the defense of comparative negligence only where the plaintiff impeded the provision of accounting or audit services. Appellants claim that since they did not interfere in any way with appellee’s performance of the special engagement, then appellee’s comparative negligence defense would fail as a matter of law.

The audit interference doctrine stands for the proposition that “the defendant can only offer evidence that the plaintiffs negligent conduct was a proximate cause of the alleged injury if the plaintiff impeded the defendant’s provision of services.” Bd. of Trs. of Cmty. Coll. Dist. No. 508, Cnty. of Cook v. Coopers & Lybrand, 208 Ill.2d 259, 281 Ill.Dec. 56, 803 N.E.2d 460, 474 (2003) (Garman, J., concurring in part and dissenting in part). Contributory negligence cannot be claimed by an auditor where there is no evidence that the client interfered with the audit. Coopers & Lybrand, 803 N.E.2d at 465.

Even after the Illinois legislature passed a comparative negligence statute, the Illinois Supreme Court found that the statute, which diminished damages to the proportions of fault attributable to the plaintiff, did not abrogate the audit interference doctrine. Id. at 465-68. The Illinois Supreme Court concluded that the “audit interference doctrine in the accounting malpractice context is in accord with recognized principles of comparative fault.” Id. at 468.

Appellee claims that, under Illinois law, the audit interference doctrine is inapplicable since prior Illinois cases have applied this doctrine only to cases involving the auditor and the client. In the present case, appellants are a third party who received and relied on the special engagement report from the client, Superior. Our court, without clear guidance from Illinois law, must attempt to discern how an Illinois court would resolve this issue on appeal. See Maryland Sound Indus., Inc. v. Simmons, 845 So.2d 922, 925-26 (Fla. 4th DCA 2003).

We find that, as a logical extension of Illinois law, there is no reason for a third party not to be considered in the position of a client under the unique facts of this case. The client hired appellee to provide audit services and specifically told appellee that a primary purpose for the special engagement was to provide the report to appellants, a third party with an established interest in the financial soundness of the client. As such, the audit interference doctrine applies to appellants. Further, since there is no evidence of any actual audit interference by appellants, the trial court erred in not directing a verdict in appellants’ favor on the comparative negligence defense. Accordingly, we reverse the trial court’s denial of appellants’ motion for directed verdict on comparative negligence and remand for the trial court to enter a judgment without a reduction for comparative negligence and to recalculate the prejudgment interest.

Affirmed in part, reversed in part, and remanded.

TAYLOR and HAZOURI, JJ., concur.

      . The independent auditor, James Grady, had never previously refused to sign off on an audit despite the fact that he had performed audits of two hundred banks and had acted as an independent review partner at least fifty times before.

      . In Florida, "when confronted by a choice of law problem, a court will apply foreign law when it deals with the substance of the case and will apply the forum’s law to matters of procedure.” Siegel v. Novak, 920 So.2d 89, 93 (Fla. 4th DCA 2006). In the present case, the trial court correctly applied Illinois law as the appropriate substantive law of the case.

      . Florida courts have "decline[d] to adopt” the audit interference doctrine. See Devco Premium Fin. Co. v. N. River Ins. Co., 450 So.2d 1216, 1220 (Fla. 1st DCA 1984).

      . We find this result to be consistent with the intent expressed in the Illinois Public Accounting Act. Under Illinois law, an accounting firm is liable to persons not in privity of contract where the accounting firm "was aware that a primary intent of the client was for the professional services to benefit or influence the particular person bringing the action.” 225 Ill. Comp. Stat. 450/30.1 (2000). In this case, appellee knew that a primary purpose of the special engagement was to fulfill the client’s contractual obligations to partners of Superior, such as appellants.


author: CONNER, J.

text:
    Melissa Lee MAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-430, 4D10-431.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Melissa Lee May entered a plea of no contest to two counts of withholding information regarding previous prescriptions from a practitioner (commonly known as doctor shopping) and a separate violation of probation, reserving her right to appeal the denial of her motion to suppress. May claims the trial court erred in denying the motion because the officer who conducted the traffic stop, which resulted in May’s arrest, lacked reasonable suspicion to stop the vehicle in which she was traveling. We affirm.

A detective of the Hollywood Police Department assigned to work with a DEA unit was conducting surveillance in the parking lot of a pain clinic under investigation by the DEA. At that time the detective had at least three and a half years of training and experience conducting investigations of “pharmaceutical crimes.” The detective observed May along with a co-defendant exit the front door of the clinic. She did not see either person carrying anything at that time.

The co-defendant got into the front passenger seat and May got into the rear passenger seat of a waiting vehicle driven by a third person. The vehicle pulled out of the parking lot and drove away, and the detective followed. Eventually, the detective pulled alongside the vehicle and observed an amber prescription bottle being passed from the front center console area to the rear where May was seated. The detective then made contact with another officer, who effectuated a traffic stop for a brake light violation. The State stipulated at the suppression hearing that the traffic stop for a brake light violation was not valid. Although the vehicle was stopped for a brake light violation, the violation was not technically sufficient for a ticket to be issued. Thus, the State agreed the issue to be litigated at the suppression hearing was the validity of an investigatory stop.

In addition to the above facts, at the suppression hearing the detective testified that from her training and experience, a lot of narcotics violations by hand-to-hand transactions or “sharing of pills” typically occur in the parking lots of pain clinics. She also testified that the pain clinic under investigation was a “cash only” operation, which is the situation with a majority of pain clinics. She further testified that it is common to observe people leaving pain clinics engage in conduct she referred to as “sharing of pills,” in which people “divvy up the proceeds of what they received from the doctor.” She explained that often the drugs obtained by the patient leaving the pain clinic are given to the driver of the vehicle as payment for driving the patient to the clinic. Frequently, the situation is a “sponsorship” arrangement whereby a person in the vehicle supplies the cash to purchase the drugs. In return, for supplying the cash, the sponsor is given some of the drugs. The detective also testified: “But the fact that the pill bottle goes around was suspicious, especially working diversion cases and these types of crimes, people don’t share their prescription bottle.”

The detective was the only witness to testify at the suppression hearing. The trial court found that the detective’s testimony was credible and the officer had reasonable suspicion to make an investigatory stop. The motion to suppress was denied.

May relies primarily on Benemerito v. State, 29 So.3d 367 (Fla. 4th DCA 2010), for reversal. In that case, an experienced narcotics officer was conducting surveillance of a Walgreens parking lot in which a number of drug arrests previously had been made. A truck entered the lot, and then the defendant drove into the lot and parked beside the truck. The driver of the truck entered the back seat of the defendant’s vehicle, extended his hand toward the driver, exited the vehicle, and drove off. The officer could not see what was in the defendant’s hand, but nonetheless stopped the defendant on the suspicion that he had purchased drugs.

The circuit court denied the motion to suppress the evidence resulting from the stop. Id. at 368. This court reversed because the officer did not have reasonable suspicion to stop the defendant. The officer “witnessed only silhouettes in a car and the movement of one person’s arm ... [h]e ... did not see any drugs or money.” Id. at 370. May points out that in this case, the detective did not see any drugs or money. Although the detective saw a prescription bottle change hands, May argues the detective could not see whether the occupants opened the bottle, put anything in their mouths, or took any pills out of the bottle.

As we observed in Santiago v. State, 941 So.2d 1277, 1279 (Fla. 4th DCA 2006),

Diverse facts have been recognized as useful in deciding whether reasonable suspicion exists, including: “[t]he time; the day of the week, the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.”

(quoting State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978)). In Santiago we went on to say that it was not neees-sary that an officer actually observe drugs change hands to establish reasonable suspicion. Instead, an officer may rely on other circumstances, such as “whether the officer can see either drugs or money being transferred, the officer’s narcotics experience, the reputation of the location for drug transactions, the extent of the period of surveillance, and the history of previous multiple arrests from that site.” Id. at 1279.

A police officer may stop a person for the purpose of investigating possible criminal behavior if the officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. State v. Davis, 849 So.2d 398 (Fla. 4th DCA 2003). “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity.” Popple v. State, 626 So.2d 185 (Fla.1993). “A founded suspicion is one which has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience.” Davis, 849 So.2d at 400 (citing Stevens, 354 So.2d at 1247 (emphasis added).

Section 893.13(l)(a), Florida Statutes (2009), makes it unlawful for any person to deliver a controlled substance to a person unless the delivery is pursuant to a valid prescription. Section 893.13(6)(a), Florida Statutes (2009), makes it unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription. Except, arguably speaking, the situation of a parent giving medicine to a child, a crime is committed when Citizen A gives Citizen B a prescription medication and the delivery is not pursuant to a valid prescription.

Our prior statements in Beneméri-to, Santiago, and Davis lead us to conclude that in determining whether an officer has a reasonable suspicion to conduct an investigatory stop, some deference should be given to the officer’s perspective and the officer’s training and experience. What may appear to be innocent conduct to the average citizen, who is unaware of how drug crimes are committed, may reasonably appear suspicious to an officer. In this case, the officer testified about a pattern of illegal conduct (“sharing of pills”) which the officer learned through observation and training occurs with regularity at or near cash-only pain clinics. “Sharing of pills” is illegal drug activity that includes seemingly innocent behavior to the average citizen (passing a pill bottle to another person). In the context of the facts known to the officer, passing a prescription bottle around in a vehicle is consistent with illegal “sharing of pills.” “Sharing of pills” behavior is a very different illegal drug activity than the hand-to-hand sales transactions involved in Benemérito and Santiago, As we said in Santiago, observation of drugs is not necessary in the context of hand-to-hand sales of drugs. In the context of “sharing of pills,” it seems to us that observation of the drugs themselves is likewise not necessary and observation of passing a prescription pill bottle is sufficient.

The fact that May emerged from a cash-only pain clinic already under DEA surveillance, got into a parked ear being driven by a third person, and was then handed a prescription pill bottle constituted reasonable suspicion in the mind of an experienced detective, who had witnessed other drug transactions many times at pain clinic locations. Although an isolated incident of someone passing a pill bottle around while leaving a pain clinic may be considered innocent activity by the average citizen, the totality of the circumstances, observed in light of the detective’s experience, established reasonable suspicion needed to justify the traffic stop.

Affirmed.

MAY, C.J., and DAMOORGIAN, J, concur.

      . The detective testified she was not only able to observe an amber container, but also a label on the container, which gave the container the appearance of a prescription bottle.

      . The detective testified that when investigating pain clinics, law enforcement uses a traffic stop to hide the fact that the pain clinic is under surveillance from the vehicle occupants. The detective testified that pain clinics change their mode of operation whenever they become aware of being watched.

      .The middle brake light was not functioning, but the other two brake lights were functioning. See § 316.222, Fla. Stat. (2009).

      . In Origi v. State, 912 So.2d 69 (Fla. 4th DCA 2005), we equated "founded suspicion” with "reasonable suspicion” by quoting the same language in Davis.

      . We also point out that Benemérito, Santiago, and Davis all dealt with hand-to-hand sales of drags, not illegal “sharing of pills.”

        . When pills are given to the driver as payment for providing transportation, no money is exchanged, when pills are given for supplying cash to purchase the pills, there is a temporal break between the delivery of money and the delivery of pills.

      .Our analysis relies in part on the unique characteristic of pain clinics which dispense drags on a cash only basis. As we have said, the characteristics of a location is a factor an officer can consider in evaluating suspicious criminal conduct.


author: POLEN, J.

text:
    Lee H. GROSS and Lee Gross, P.A., Appellants, v. HOME EXPANDED CORPORATION, d/b/a Expanded Mortgage Credit, Appellee.
    No. 4D10-3346.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 10, 2012.

      Robert Flavell of Robert Flavell, P.A., Miami Lakes, for appellants.
    Howard N. Kahn of Kahn, Chenkin & Resnik, P.L., Dania, for appellee.
   POLEN, J.

Appellants, Lee H. Gross and Lee Gross, P.A., appeal the trial court’s final judgment granting summary judgment in favor of appellee, Home Loan Corporation d/b/a Expanded Mortgage Credit (“Home Loan”). We hold that the trial court erred in granting final summary judgment where material issues of fact existed and therefore reverse the decision below.

Appellants acted as the settlement agents in several closings for homes and, during each closing, purported clients falsely executed and delivered notes and mortgages to Home Loan. The identifiable purported clients came forward and provided that they were never involved with Home Loan or Gross, P.A. and did not execute promissory notes or mortgages, nor authorized anyone to do so on their behalves. Home Loan filed its original complaint against Gross and several other parties and later amended the complaint to join additional defendants. Home Loan filed its first request for admissions, but Gross denied ever receiving the request, even after he specifically asked that it be re-sent by Home Loan. Home Loan filed second, third, and fourth amended complaints, and Gross filed his answer and affirmative defenses to the fourth amended complaint. Home Loan then filed a motion for summary judgment against Gross. Gross, in his response in opposition to Home Loan’s motion for summary judgment, alleged that he had nothing to do with any of the transactions and that his signature was forged on all of the documents. After the hearing, summary judgment was granted in favor of Home Loan. This appeal followed.

“The standard of review for summary judgments is de novo.” Fla. Dep’t of Revenue v. Seminole Tribe of Fla., 65 So.3d 1094, 1096 (Fla. 4th DCA 2011). For summary judgment to be entered in favor of the moving party, there must be no genuine issue of material fact and the moving party must be “entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The court may look to “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials” to determine the absence of genuine issue of material fact. Fla. R. Civ. P. 1.510(c). The burden is on the movant to show an absence of genuine issue of material fact. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).

Gross argued that the pleadings and affidavit in opposition to Home Loan’s motion for summary judgment exhibited genuine issues of material fact that should have precluded summary judgment. In Gross’ affidavit, he alleged that he assisted a suspended Georgia attorney, George Garcia, with a title company Garcia owned. Gross averred that he acted as an agent for Garcia’s company, but he never completed any loan closing documents himself and that the signatures on any documents purporting to contain his signature were obtained under false pretenses and misrepresentations by Garcia. Gross further contended he had no knowledge of any of the occurrences in the complaint and that all transactions occurred without his consent or knowledge. Gross also stated that he would have responded to the request for admissions had he been made aware of that request. Home Loan contended that Gross actually met with clients, acted as the title company’s agent, created falsified closing documents, and hosted closings where Gross oversaw the settlements.

The final judgment entered by the trial court contained findings of facts and conclusions of law which provided that, based on the evidence, Gross and Gross, P.A. jointly and severally converted funds of Home Loan and engaged in intentional, illegal, unethical and fraudulent conduct to defraud Home Loan of its monies. This court held in Cummins v. Allstate Indemnity Co., 732 So.2d 380, 383 (Fla. 4th DCA 1999), that in a summary judgment hearing, “[i]f the affidavits and other evidence raise any doubt as to any issue of material fact then a summary judgment may not be entered.” “[I]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995) (emphasis in original). Even if “the facts are uncontroverted, the entry of summary judgment is likewise erroneous if different inferences can be drawn reasonably from those facts.” Id.

Here, the depositions taken of those who were defrauded by falsified loan documents and closings provided that they never met nor spoke with Lee Gross and that his relationship with Trusted Title, Garcia’s company, was unknown. Rather, assumptions were made that Gross owned the company and/or was affiliated with the company because the checks appeared to come from Lee Gross, P.A. Therefore, while the trial court concluded that the evidence proved that fraud occurred through unauthorized loan documents, there are existent facts which should be considered by a jury to determine whether Gross and Gross, P.A. were involved in the scam that is the underlying issue of this case.

Gross and Gross, P.A. further contended that the request for admissions was never served upon them. Gross and Gross P.A. also alleged that they informed Home Loan that the request for admissions was never received, but no attempt was made by Home Loan to serve the request, even with that information. Florida Rule of Civil Procedure 1.370 provides that a “matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request-” Fla. R. Civ. P. 1.370(a). This court has held that technical admissions cannot be used to support final summary judgment if the record contains evidence which contradicts the technical admissions. Sterling v. City of W. Palm Beach, 595 So.2d 284, 285 (Fla. 4th DCA 1992).

It appears the trial court never resolved the issue of whether Gross was served with the request for admissions when the court relied on the technical admissions in reaching its decision. The final judgment specifically stated that Gross’ failure to respond to the admissions played a role in the decision of the trial court to grant summary judgment; however, it was not the sole reason for the decision. The final judgment provided that the court considered pleadings and depositions of several victims of fraudulent transactions, as well as affidavits and technical admissions, in reaching its decision to grant summary judgment. If any technical admissions were contradicted by the other evidence in the record, those admissions must not have been used to support summary judgment.

Based on the language in the final judgment and the record as presented to this court, issues of material fact remained in dispute, such as Gross and Gross, P.A.’s knowledge of the activities, the authenticity of Lee Gross’ signatures, and his participation in the fraudulent transactions. Thus, it was improper for the court to grant summary judgment without a jury first making findings regarding the genuine issues of material fact which remained in existence. We therefore reverse the trial court’s decision to grant summary judgment in favor of Home Loan and hold that the trial court erred in its decision.

Reversed.

GROSS and CONNER, JJ., concur.


text:
    Pablo ZAMORA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3057.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 2012.
    Pablo Zamora, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 2011 WL 5554812 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Stardale OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2334.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction for robbery with actual possession of a firearm; burglary of a dwelling with a deadly weapon and an assault or battery therein; and sexual battery with great harm and a deadly weapon by multiple perpetrators on a person older than twelve. Because we find Defendant’s arguments on appeal without merit, we affirm.

Defendant along with two co-defendants entered a home wearing white hockey masks and carrying pistols. The defendants tied up the four occupants of the home and searched, unsuccessfully, for drugs. The female occupant was blindfolded and forced, repeatedly, to have sex. One occupant indicated that he knew where to find drugs and led two of the three defendants to a nearby residence. The defendants tied up the occupants of the second home and took cocaine and marijuana from inside. At Defendant’s trial, in addition to the victims’ testimony, the State presented DNA evidence recovered from a condom found at the first home, cell phone records placing Defendant and his co-defendants near both homes on the night of the crimes and the certified copy of a plea entered by Defendant at the Broward County Courthouse for operating a vehicle without a valid driver’s license. The plea was entered on the same date and around the same time that the cell phone tower servicing the Courthouse picked up a call from a cell phone used during the crimes. This phone was linked to Defendant.

Defendant argues on appeal that admission of evidence regarding crimes occurring at the second residence was error; that the State failed to establish the qualifications of its DNA expert; that admission of the certified copy of the plea was error; that the trial court erred in concluding that he waived any objection to certification of the cell phone records; and that the State improperly bolstered the strength of DNA evidence during closing argument. After reviewing the record and finding no basis for error, we affirm Defendant’s convictions.

Affirmed.

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


author: GERBER, J.

text:
    Jean L. CORIOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3891.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Antony P. Ryan, Regional Counsel, and Randall Berman, Senior Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

After considering the five arguments which the defendant raises in this appeal, we affirm the defendant’s conviction and sentence for attempted second degree murder. We write to address only the defendant’s argument that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter which contains language regarding the defendant “committing] an act which was intended to cause the death of’ the victim. We affirm on that argument consistent with our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (giving of the standard jury instruction on attempted manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder), rev. granted, No. SC10-1458, 64 So.3d 1262 (Fla.2011). We certify conflict with Houston v. State, — So.3d -, 2011 WL 3518029 (Fla. 2d DCA 2011); Burrows v. State, 62 So.3d 1258 (Fla. 3d DCA 2011); Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011); and Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009).

Affirmed; conflict certified.

CIKLIN and CONNER, JJ., concur.


text:
    Lerandros SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4267.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Blackwell, 661 So.2d 282, 284 (Fla.1995) (quoting Ashley v. State, 614 So.2d 486, 490 (Fla.1993)) (“[I]n order for a defendant to be habitual-ized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The defendant must be given written notice of intent to habitu-alize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.”). As to the constitutionality of section 893.13, Florida Statutes, see Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and LEVINE, JJ„ concur.