author: TAYLOR, J. GERBER, J.,

text:
    R.J.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4936.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The issue in this appeal from the denial of a motion to suppress evidence is whether a seizure occurred when appellant complied with an officer’s repeated requests to remove his hands from his pockets. We conclude that a seizure did occur, and we reverse the denial of the motion to suppress because the officer lacked a well-founded articulable suspicion of criminal activity to justify the seizure.

Appellant, a juvenile, pled no contest to possession of less than 20 grams of cannabis, reserving the right to appeal the denial of his motion to suppress evidence. At the hearing on the motion to suppress, a deputy of the Broward County Sheriffs Office testified that late in the evening, while on duty, he received an anonymous report of “suspicious persons” in an area within the City of Lauderdale Lakes. The anonymous caller advised that there were “two black males in the area wearing all black.” The deputy was dispatched as a result of the call but was not able to find anybody in the immediate area reported by the caller. While circling the area, however, the deputy observed appellant and another juvenile, who were both wearing black.

When the juveniles made eye contact with the deputy, they immediately went into a food store “in a rush.” The deputy was suspicious as to why they would run into the store for no apparent reason. The deputy then pulled into the store parking lot and entered the store at a normal pace.

The deputy approached appellant and said, “Can I talk to you for a minute?” Appellant replied, “Yeah. What do you want?” The deputy noticed that appellant kept his hands in his pockets and asked appellant to remove his hands from his pockets. The deputy testified that he did this for officer safety issues. Appellant kept his right hand in his pocket while gesturing with his left hand as he spoke to the deputy. The deputy thought appellant was hiding something in his pocket.

The deputy again asked appellant to remove his hands from his pockets. At that point, appellant put his left hand back in his pocket, so that he then had both hands in his pockets. The deputy then asked appellant where he was coming from. Appellant responded, “Man, we’re just coming from down the street.” The deputy asked appellant yet another time to remove his hands from his pockets and said to appellant, “What do you have in your pockets? Do you have any guns, knives, weapons; anything you [think] I need to ... know about?”

In compliance with the deputy’s last request, appellant removed his hands from his pockets. A marijuana cigarette fell to the ground. The deputy picked up the cigarette, took appellant outside the store, and handcuffed him. The cigarette tested positive for THC. Before the marijuana cigarette fell to the ground, the deputy stood at arm’s length while speaking to appellant and did not touch him.

On cross-examination, the deputy admitted that the dispatcher only said that there were suspicious persons walking in the area; he did not give any details of what they were doing to arouse suspicion other than to report that they were walking there. He further acknowledged that the anonymous caller only said that the suspicious persons were black and wearing black clothing; he never gave a height or weight or any other information when describing them. When the officer encountered appellant and his companion, he observed that appellant was wearing a black shirt with blue jeans, not black pants. The other male was wearing a black shirt, but the officer could not recall the color of the other male’s pants. The officer conceded that he did not see any bulges from appellant’s pants that appeared to be weapons.

After considering the testimony and arguments of counsel at the suppression hearing, the trial court concluded that under the totality of the circumstances, appellant’s interaction with the deputy was a consensual encounter and that no seizure occurred until the deputy arrested appellant for the marijuana cigarette that fell from his pocket. The trial court found that the deputy “didn’t seem to convey any sense of a command or any attempt to exert authority” when he requested appellant to remove his hands from his pockets. After the court denied the motion to suppress, appellant pled no contest to the marijuana possession charge and reserved the right to appeal the denial of the motion to suppress. Appellant was sentenced to time served.

Appellant argues that the deputy’s request to remove his hands from his pockets converted the initial consensual encounter in the store into a seizure requiring reasonable suspicion of criminal activity in order to be found lawful. He contends that the seizure was not supported by reasonable suspicion, because the anonymous tip that led to the incident did not contain specific details, and there was no corroboration by independent police investigation.

The state responds that the deputy’s requests did not transform the consensual encounter into a seizure and that, even if the encounter did become a seizure, there was a founded suspicion to detain appellant.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by competent, substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Fla.2002); Hunter v. State, 32 So.3d 170, 173 (Fla. 4th DCA 2010). However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues. See Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006); Falls v. State, 953 So.2d 627, 629 (Fla. 4th DCA 2007).

Florida case law has described three levels of police-citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Regalado v. State, 25 So.3d 600, 602 (Fla. 4th DCA 2009) (citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)). “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Popple, 626 So.2d at 186. While there is no “litmus-paper test” for distinguishing a consensual encounter from a seizure, “a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries.... ” Id. at 187. In determining whether an encounter is consensual, the central inquiry is whether a reasonable person would feel free to disregard the police and go about his business. See State v. R.H., 900 So.2d 689, 692 (Fla. 4th DCA 2005).

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Supreme Court adopted a “totality of the circumstances” approach to determining whether a person has been seized within the meaning of the Fourth Amendment. The Court explained that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Among the circumstances mentioned in Mendenhall that might indicate a seizure is “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. at 554, 100 S.Ct. 1870. The Supreme Court later clarified in California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), that a seizure occurs when the person submits to the officer’s show of authority.

We are mindful of the Supreme Court’s “clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account ‘all of the circumstances surrounding the incident’ in each individual case.” Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). The Mendenhall test is flexible and imprecise, and the Florida Supreme Court has pointed out that “per se rules are inappropriate in the context of Fourth Amendment seizure analyses.” See G.M. v. State, 19 So.3d 973, 979 (Fla.2009). Yet, the test “calls for consistent application from one police encounter to the next,” and the “reasonable person” standard “ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached.” Chesternut, 486 U.S. at 574, 108 S.Ct. 1975.

Our court has consistently held that orders, or even requests, to remove one’s hand from a pocket will elevate a consensual encounter to the level of an investigatory detention. See Lee v. State, 868 So.2d 577, 579-80 (Fla. 4th DCA 2004); see also Gestewitz v. State, 34 So.3d 832, 835 (Fla. 4th DCA 2010); Johnson v. State, 989 So.2d 1228, 1230 (Fla. 4th DCA 2008); Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006).

The facts in Lee are virtually indistinguishable from those in this case. There, an officer received an anonymous call that there was a “ ‘black male or several black males ... loitering on the street corner, selling narcotics.’ ” 868 So.2d at 578. The tip did not furnish any other identifying information. Id. When the officer arrived at the location, he observed several black males loitering on the street corner. Id. at 579. They dispersed when the officer’s marked vehicle approached. Id. The officer did not see Lee engage in any drug activity before he went behind a duplex. Id. As Lee was walking quickly toward the officer with his hand in his pocket, the officer requested that Lee remove his hand from his pocket for the officer’s safety. Id. Lee took his hand out of his pocket and dropped a crack cocaine rock on the ground. Id.

In reversing the trial court’s denial of Lee’s motion to suppress, we disagreed with the state’s argument that the mere request by the officer that Lee take his hand out of his pocket was insufficient to constitute a stop. Instead, we followed Harrison v. State, 627 So.2d 583, 584 (Fla. 5th DCA 1993), which held that a consensual encounter between a police officer and the defendant evolved into a seizure when the officer told the defendant to take his hand out of his pocket. Harrison referenced the holdings of other Florida district courts that have similarly ruled that orders or even requests to remove a hand from a pocket caused a consensual encounter to become a seizure. We note, however, that the Second and Fifth Districts have held that such a request, when made to ensure an officer’s safety, does not elevate a consensual encounter to a detention. See State v. Woodard, 681 So.2d 733, 735 (Fla. 2d DCA 1996); Lang v. State, 671 So.2d 292, 294 (Fla. 5th DCA 1996); Sander v. State, 595 So.2d 1099, 1100 (Fla. 2d DCA 1992).

Considering the facts and circumstances in this case, we have no difficulty concluding that appellant was “seized” when he complied with the deputy’s order to remove his hands from his pockets. The deputy’s request, which was repeated several times, constituted a show of authority which would have conveyed to a reasonable person that his movement was being restricted and that he was not free to disregard the officer and go about his business. A reasonable person would have interpreted the deputy’s repeated requests as a command, not a suggestion. We thus adhere to the traditional contextual approach to Fourth Amendment jurisprudence and hold only that, in this particular case — where the deputy repeatedly requested that appellant remove his hands from his pockets so as to convey a message that compliance with the request would be compelled — a seizure occurred when appellant submitted to the deputy’s show of authority.

The state alternatively argues that even if the deputy’s conduct constituted a seizure or investigatory stop, the stop was supported by a reasonable suspicion. We disagree.

A reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). But an “inchoate and unparticularized suspicion or ‘hunch’ ”' of criminal activity will not suffice. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To justify an investigatory stop, there must be a well-founded, articulable suspicion of criminal activity. Popple, 626 So.2d at 186. Here, the officer did not have a well-founded, articulable suspicion of criminal activity.

“While an anonymous tip can provide the basis for an investigatory stop, the tip must contain sufficient indicia of reliability to furnish the police with reasonable suspicion that defendant is engaged in criminal activity; such reliability is judged by (a) its specificity and (b) independent police corroboration of significant aspects of the informant’s predictions.” Lee, 868 So.2d at 580. In this case, the anonymous tip contained no specific details and failed to allege any illegal activity at all; it simply reported that there were two “suspicious” black males walking around at night wearing all black clothing. Further, the tip was not fully corroborated even as to the “all black clothing” description. In short, the anonymous tip did not give the officer reasonable suspicion that appellant was involved in criminal activity. See Baptiste v. State, 995 So.2d 285, 301 (Fla.2008) (“[W]hen investigating an anonymous tip, officers who are unable to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of only innocent details — such as a physical description — with absolutely no observation or development of any suspicious behavior.”) (emphasis added); Regalado, 25 So.3d at 603 (explaining that “the information supplied by the tipster must be of illegal activity to constitute reliable information for investigation”) (emphasis added). In fact, the tip was much less specific than other anonymous tips that were deemed insufficient to give rise to reasonable suspicion. See, e.g., Butts v. State, 644 So.2d 605, 605-06 (Fla. 1st DCA 1994) (finding anonymous tip deficient where it stated only that a black male with grey beard, wearing black cap, grey pants and black jacket was riding a bicycle, had a gun in his pocket, and was possibly selling drugs; the tip contained no predictions regarding the defendant’s future movements or activities).

Moreover, while headlong flight in a high crime area may provide an officer with a reasonable suspicion to investigate further, reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears. See F.E.A. v. State, 804 So.2d 528, 529 (Fla. 1st DCA 2002). Here, it is not clear whether appellant’s act of rushing into the store after the patrol car approached constituted “flight” or “headlong flight.” Cf. Lee, 868 So.2d at 581-83 (concluding that dispersing or walking quickly away from the scene upon the arrival of law enforcement did not constitute flight or “headlong flight”). But assuming, ar-guendo, that appellant’s act of running into a store after seeing the officer’s patrol car constituted flight, there was no evidence that this occurred in a high crime area. See D.R. v. State, 941 So.2d 536, 537-38 (Fla. 2d DCA 2006) (holding that evidence was insufficient to establish that juvenile’s unprovoked flight from officer occurred in a high crime area, and thus officer did not have reasonable suspicion to conduct an investigatory stop).

Finally, appellant’s act of keeping his hands in his pockets did not give the police officer reasonable suspicion to believe that appellant was involved in criminal activity. See United States v. Burton, 228 F.3d 524, 529 (4th Cir.2000) (defendant’s refusal to remove his hand from his pocket was insufficient to give police officer reasonable suspicion that criminal activity was afoot); see also State v. Barnes, 979 So.2d 991, 993 (Fla. 4th DCA 2008) (“The mere thrusting of one’s hand in one’s pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous.”) (citation and internal quotation marks omitted; emphasis in original). Before the officer was entitled to allay his safety concerns, he had to be presented with objective facts that would justify an investigatory Terry stop. Burton, 228 F.3d at 528. “In the absence of reasonable suspicion, the officer’s alternative was ‘to avoid a person he considers dangerous.’ ” Id. (quoting Terry, 392 U.S. at 32, 88 S.Ct. 1868).

In sum, when appellant complied with the deputy’s repeated requests to take his hands out of his pockets, the consensual encounter in the store turned into a stop. At that point, the deputy did not have a well-founded, articulable suspicion that appellant was involved in any criminal activity so as to justify the stop. We therefore reverse the order denying appellant’s motion to suppress and remand with directions to vacate the adjudication of delinquency.

Reversed and Remanded.

LEVINE, J., concurs.

GERBER, J., dissents with opinion.

GERBER, J.,

dissenting.

I respectfully dissent. The majority reasons that a seizure occurred based on the fact that the deputy repeatedly requested appellant to remove his hands from his pockets. I disagree with that reasoning and conclude that a seizure does not automatically occur when an officer requests a person to remove his hands from his pockets.

According to the majority’s reasoning, “[o]ur court has consistently held that orders, or even requests, to remove one’s hand from a pocket will elevate a consensual encounter to the level of an investigatory detention.” See, e.g., Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006) (“Ordering an individual to take his hand out of his pocket ordinarily turns a consensual encounter into a stop.”); Lee v. State, 868 So.2d 577, 580 (Fla. 4th DCA 2004) (“[OJrders or even requests to remove a hand from a pocket causes a consensual encounter to become a seizure.”) (citation omitted).

I have attempted to trace back our cases to determine when this court first arrived at that holding and on what legal basis. As best I can tell, the holding appears to have originated from one sentence in Can ion v. State, 550 So.2d 562 (Fla. 4th DCA 1989):

What began as a “mere encounter” between the deputy sheriff and appellant escalated to a temporary detention when the deputy demanded that appellant remove his hand from his pocket. See State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1200 (Fla.1980).

Canion, 550 So.2d at 562-63.

The Oliver case upon which this court relied for that sentence unfortunately contains no such holding. The question presented in Oliver was “whether the police retrieval of evidence discarded in the public streets by a defendant (a) after being illegally ordered to stop by the police but (b) before the police have begun a physical search of the defendant’s person or property, constitutes a search of the defendant’s person.” Oliver, 368 So.2d at 1333. The facts did not involve any request or demand for the defendant to remove his hands from his pockets. In fact, the only mention of “pockets” in Oliver relates to describing what constitutes a search for a hidden object:

Searches of the person therefore include any physical touching of an individual’s body or clothing that causes hidden objects or matters to be revealed, such as rummaging through one’s pockets or clothing [or] patting doum one’s outer clothing without going into the pockets or other inner recesses.... A police demand that an individual disclose or hand over a concealed object is treated as a search ....

Id. at 1335 (emphasis added).

In any event, as the majority acknowledges, some of our sister courts have espoused the view that a request to remove one’s hand from a pocket does not automatically transform a consensual encounter into a seizure. See, e.g., State v. Woodard, 681 So.2d 733, 735 (Fla. 2d DCA 1996) (“[S]uch a request, when made to ensure an officer’s safety, does not elevate a consensual encounter to a detention.”); Lang v. State, 671 So.2d 292, 294 (Fla. 5th DCA 1996) (“Nor is it improper for an officer to ask a person to remove his hands from his pockets during a citizen encounter.”); Sander v. State, 595 So.2d 1099, 1100 (Fla. 2d DCA 1992) (“[I]t was not improper for [the officer] to ask [the defendant] to remove his hands from his pockets.”).

I agree with our sister courts’ view. The second district’s holding in Woodard was based in part on the “totality of the circumstances” approach which the United States Supreme Court articulated in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980):

[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Id. at 554-55, 100 S.Ct. 1870 (emphasis added; internal citations omitted).

The majority attempts to reconcile its reasoning with Mendenhall’s “totality of the circumstances” approach by referring to the fact that “the deputy repeatedly asked appellant to take his hands out of his pockets.” However, I think it is reasonable for an officer to be able to request a person to remove their hands from their pockets during a consensual encounter to ensure the officer’s safety. Woodard, 681 So.2d at 735. I also think that reasonable persons requested to remove their hands from their pockets, without more, would understand an officer’s request to be just that — a request to ensure the officer’s safety, and not a restriction on their freedom to leave. In my opinion, such a request falls within the category of “inoffensive contact” to which the Court referred in Mendenhall, so long as the other circumstances which might indicate a seizure are not present.

Here, the other circumstances which might indicate a seizure were not present. According to the trial court’s findings of fact, when the deputy requested appellant to remove his hands from his pockets, the deputy “didn’t seem to convey any sense of a command or any attempt to exert his authority.” This result is not changed by the fact that the deputy ultimately said to appellant, “What do you have in your pockets? Do you have any guns, knives, weapons; anything you [think] I need to ... know about?” See State v. Baldwin, 686 So.2d 682, 685-86 (Fla. 1st DCA 1996) (two officers’ initial contact with the defendant and his companion was nothing more than a routine and proper consensual encounter, not a seizure, where the officers politely asked for the two men’s names and addresses, asked whether either one had anything on him that could get him into trouble, and for personal safety reasons asked the defendant if he would mind removing his hands from his pockets).

Based on the foregoing, no seizure occurred before appellant removed his hands from his pockets and the marijuana cigarette fell out. I would affirm.

      . See Johnson v. State, 610 So.2d 581 (Fla. 1st DCA 1992); Dees v. State, 564 So.2d 1166 (Fla. 1st DCA 1990); Canion v. State, 550 So.2d 562 (Fla. 4th DCA 1989); Evans v. State, 546 So.2d 1125 (Fla. 3d DCA 1989).


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Claudia ROJO, Appellant, v. Rodolfo ROJO, Appellee.
    No. 3D11-1537.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Greenman & Manz and David L. Manz, Marathon, for appellant.
    Peggy Cruz-Townsend, Fort Lauder-dale, for appellee..
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   RAMIREZ, J.

Claudia Rojo (former wife) appeals from an order finding her in contempt for failing to transfer certain properties to Rodolfo Rojo (former husband) and to have the parties’ minor child travel to Mexico to be with her father. We affirm in part, reverse in part, and remand for further proceedings.

The parties’ marriage was dissolved by a dissolution judgment entered in August 2009. Former husband was awarded five properties in Mexico, which former wife was ordered to transfer within 90 days of the judgment. The dissolution judgment also provided primary residential custody of the parties’ two children to former wife, with former husband to have timesharing in Mexico during summer and winter vacations.

In November 2010, the trial court heard former husband’s first motion to compel former wife’s compliance with the dissolution judgment. The trial court entered an order denying contempt for failure to transfer the properties because former wife was actively working on the matter. After speaking with the parties’ older child, the trial court acknowledged that any attempt at reunification between this child and her father would be fruitless. However, the trial judge indicated his unwillingness to give up on a possible relationship between the younger child and her father. Accordingly, the trial court ordered that “arrangements ... be made for the younger child ... to travel to Mexico at the father’s expense for no less than one half of the 2010 school winter ... break.” The trial court also stated that former wife “may accompany the child at her own expense.”

When all the properties were not transferred to him and the child did not travel to Mexico as ordered, former husband again moved for contempt. Former husband’s motion was amended and noticed for hearing several times, with the final notice setting a May 10, 2011 hearing. Former wife objected to the scheduled fifteen-minute hearing, and instead requested a one-hour evidentiary hearing. The trial court denied former wife’s objection and went on to hear former husband’s pending motions on proffered testimony.

Regarding the contempt for failure to transfer the properties, counsel for former wife argued that the court should consider testimony from the former wife’s Mexican lawyer and first decide who should pay for certain fees associated with the property transfer. Counsel also explained the reason for the minor child not traveling to Mexico. Counsel told the court that when former wife took the parties’ minor child to the airport for her flight to Mexico, the child refused to board the plane, became hysterical, and airline personnel stated the child could not travel under these circumstances. The trial court nevertheless found former wife in contempt for both failing to transfer the properties and not sending the minor child to Mexico. The trial court imposed a $100 per day penalty for each day former wife delays in transferring the properties, and an additional $100 per day penalty for each day’s delay in sending the minor child to her father beginning five days after the end of the school term.

A trial court’s contempt judgment “comes to the appellate court clothed with a presumption of correctness” which should not “be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). However, where the trial court’s contempt order is based on a party’s failure to follow an order which does not clearly state what must be done, the standard of review is legal error. Id.

To ensure the orderly administration of justice, Florida courts have the inherent power to hold parties in contempt for intentionally failing to obey a court order. See § 38.22, Fla. Stat. (2010); Parisi v. Broward Cnty., 769 So.2d 359 (Fla.2000). This contempt power, however, should be exercised cautiously. Smith v. State, 954 So.2d 1191 (Fla. 3d DCA 2007). Generally, when the primary purpose is to obtain compliance with a court order, the proceeding is remedial in nature and is a civil contempt. Dep’t of Children & Families v. R.H., 819 So.2d 858, 861 (Fla. 5th DCA 2002). Any sanction imposed “is coercive in nature and is avoidable through obedience.” Id. (quoting Amends, to Fla. Family Law Procedure, 723 So.2d 208, 213 (Fla.1998)).

Several requirements must be met before finding a person in contempt for failing to obey a court order. First, the order giving rise to the contempt proceedings “must be one which clearly and definitely makes the person aware of its command.” Smith, 954 So.2d at 1194. Secondly, the trial court must find that the person has the ability to comply with the court order. R.H., 819 So.2d at 862. Finally, where the trial court imposes a coercive fine, “the court must consider the financial resources of the contemnor in setting the amount of the fine.” Parisi, 769 So.2d at 366.

Applying these principles to this case, we find no abuse of discretion regarding the contempt entered for former wife’s failure to transfer the properties to former husband. The trial court gave former wife ample time to effectuate the transfers, and postponed for later consideration the issue of each party’s liability for any costs associated with the transfers. Accordingly, we affirm the finding of contempt for former wife’s failure to transfer the properties to former husband. Conversely, we conclude that the trial court abused its discretion in finding former wife in contempt for the minor child’s failure to travel to Mexico. In this instance, the trial court’s order directing that the child travel to Mexico did not specifically command former wife to accompany the child. Thus, former wife cannot be found in contempt for not personally escorting the child to Mexico. Moreover, under the circumstances, there was no showing former wife had the ability to get her child to Mexico as the uncontradicted testimony was that the airline would not accept the child in her hysterical state. Therefore, we reverse the contempt for the child’s failure to travel to Mexico.

Lastly, we reverse the $100 per day penalty imposed for former wife’s failure to transfer the properties because the trial court did not determine former wife’s ability to pay this amount. On remand, the trial court should consider former wife’s financial resources and determine what amount to impose as a sanction for contempt, including those previously ordered if warranted. Finally, we sympathize with the difficult task the trial court confronted in this case and commend the judicial restraint it has exercised throughout the long, acrimonious history of this couple’s lack of cooperation.

Affirmed in part, reversed in part, and remanded for further proceedings.


author: PER CURIAM.

text:
    L.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-680.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, LAGOA, and FERNANDEZ, JJ.
   PER CURIAM.

L.G. appeals the trial court’s order withholding an adjudication of delinquency. L.G. was adjudicated delinquent after an adjudicatory hearing for the offense of burglary to an unoccupied dwelling and grand theft. Because the trial court failed to conduct a Richardson inquiry upon the State’s discovery violation, we reverse on the authority of T.J. v. State, 57 So.3d 975 (Fla. 3d DCA 2011), and remand for a new adjudicatory hearing.

Reversed and remanded for further proceedings consistent with this opinion.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


author: ROTHENBERG, J.

text:
    Bryan Charles GENER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1550.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Roderick D. Vereen, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, J.

Bryan Charles Gener (“Gener”) appeals the trial court’s order denying as untimely his “Motion For New Trials” in case numbers 05-9595 and 07-20311. As the trial court correctly noted, a motion for a new trial in a non-death penalty case must be made within ten days after rendition of the verdict or a finding by the court. See State v. Snyder, 453 So.2d 546, 546-47 (Fla. 3d DCA 1984). Because Gener filed his motion more than ten days after rendition of the verdict or a finding by the court, and because the ten-day limit is jurisdictional, we affirm the order on appeal.

Affirmed.


author: POLEN, J.

text:
    Tiffany Ann-Marie IANIERI, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3512.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, 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.
   POLEN, J.

Tiffany Ann-Marie Ianieri was convicted of driving while impaired and causing serious bodily injury and personal injury or property damage. The trial court sentenced Ianieri to three years of incarceration, followed by eighteen months of probation, as well as an immediate payment of $327,311.34 in restitution. Ianieri appeals the immediate restitution payment, arguing that she is unable to comply with the order due to her inability to pay. We reverse and remand the trial court’s order requiring the amount of $327,311.34 to be paid immediately and direct that a payment schedule consistent with Ianieri’s ability to pay be established.

Ianieri was charged by information with driving under the influence causing or contributing to serious bodily injury and driving under the influence causing or contributing to injury to person or property. Ianieri operated a vehicle with a suspended driver’s license while her blood alcohol level was above the legal limit. As Ianieri was driving, she entered a construction zone and hit a worker with her vehicle. The worker sustained serious injuries, including a broken leg and knee, as well as head trauma. Ianieri voluntarily pled guilty and the trial court accepted the plea as entered into freely. The trial court entered a judgment, adjudicating Ia-nieri guilty of driving under the influence causing or contributing to serious bodily injury and driving under the influence causing or contributing to injury to a person or property. Ianieri was sentenced to three years in the Department of Corrections with two days credit for time served on count I, concurrent with one year in jail with two days credit for time served on count II. Additionally, Ianieri was sentenced to eighteen months probation to follow her incarceration. The court also entered an order for restitution in the amount of $327,311.34, to be paid immediately. This appeal followed.

“A trial court’s restitution order is reviewed under an abuse of discretion standard.” Hunter v. State, 48 So.3d 174, 175 (Fla. 4th DCA 2010). Ianieri argues that the trial court improperly ordered immediate payment of restitution when she was unable to pay such a large amount. Instead, Ianieri requests to be placed on a reasonable payment schedule, beginning once she is released from prison.

Section 775.089(3)(c), Florida Statutes, provides that a trial court has jurisdiction to enforce restitution, to be paid within a certain period or in installments. § 775.089(3)(c), Fla. Stat. (2011). If the court does not otherwise provide a time period, “restitution must be made immediately.” § 775.089(d), Fla. Stat. (2011). In Boss v. State, 613 So.2d 525 (Fla. 5th DCA 1993), the Fifth District held that the trial court should not order immediate payment from an indigent defendant who does not have the ability to pay immediately. Id. at 526. Instead, the court should “consider the financial resources of the defendant” in making determinations regarding restitution. § 775.089(6)(a-b), Fla. Stat. (2011); Boss, 613 So.2d at 526. This court, in Shacraha v. State, 635 So.2d 1051 (Fla. 4th DCA 1994), held that if the evidence does not show defendant’s ability to immediately pay the restitution, the trial court should set a later date for payment or create a payment schedule that reflects the ability of the defendant to pay. Id. at 1052.

Though factually distinguished, this court’s holding in Shacraha is applicable to this case. Like in Shacraha, the evidence did not show Ianieri’s ability to pay the restitution immediately; thus, a payment schedule should have been created. Shacraha, 635 So.2d at 1052. Also like in Shacraha, the evidence shows that Ianieri had the ability to pay if installments were specified, as indicated by a statement made by her attorney to the trial court that Ianieri had a job and could make payments toward restitution. Accordingly, we reverse and remand the trial court’s order of restitution in the amount of $327,311.34 to be paid immediately. We further direct the trial court to establish a payment schedule that is consistent with Ianieri’s ability to pay.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    STATE of Florida, Appellant, v. Michael WASHINGTON, Appellee.
    No. 4D10-4189.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The State of Florida appeals the trial court’s final order granting Michael Washington’s motion for a downward departure sentence. Washington sought a departure sentence based on, inter alia, his need for adequate mental health treatment. On appeal, the State argues that Washington did not meet his burden to establish that the treatment he required was not available from the Department of Corrections (“DOC”). In our recent opinion in State v. Chubbuck, 83 So.3d 918 (Fla. 4th DCA 2012) (en banc), we receded from our precedent which imposed upon the defendant seeking a departure sentence, the burden to establish by a preponderance of the evidence that treatment was not available from the DOC. See id. at 921. Accordingly, our holding in Chubbuck is disposi-tive of the issue in this appeal.

The record in this case reflects that Washington’s expert testified that the DOC could provide adequate treatment for Washington. Based upon the fact that the trial court was presented with this evidence and still chose to give a departure sentence, leads us to conclude that there is no reason to remand this case in order to give the State another opportunity to present evidence as to whether the DOC can provide the necessary treatment. Cf. id. (reversing and remanding for a new sentencing hearing because “[a]lthough the state had the opportunity to present such evidence at the sentencing hearing, we recognize the possibility that the state did not present such evidence given this court’s view of the law at that time”).

Affirmed.

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


text:
    STATE of Florida, Appellant, v. Curtis BARBARY, Appellee.
    No. 4D11-3345.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals the trial court’s order granting the defendant’s motion to suppress contraband seized from his home without a warrant. We affirm, holding that the warrantless entry into defendant’s home was not justified either under the exigent circumstances doctrine or as a valid protective sweep. See Rozzo v. State, 75 So.3d 409 (Fla. 4th DCA 2011); Diaz v. State, 34 So.3d 797 (Fla. 4th DCA 2010); Vasquez v. State, 870 So.2d 26 (Fla. 2d DCA 2003).

We distinguish Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001), relied upon by the state. Here, viewing the facts in the light most favorable to sustaining the trial court’s ruling, we note that the officer observed contraband inside the defendant’s apartment, but immediately detained the defendant outside the apartment. Thus, in this case, unlike in Gilbert, the defendant was already detained outside at the time the officer made the initial entry into the defendant’s apartment. Moreover, the police did not have a reasonable belief that third persons were inside the apartment who might destroy evidence or pose a threat to safety.

Finally, we conclude that the inevitable discovery doctrine does not apply under these circumstances. See King v. State, 79 So.3d 236, 238 (Fla. 1st DCA 2012) (“Here, the officer testified that he did not attempt to get a warrant, and the State presented no evidence suggesting that he did. Accordingly, the trial court could not rely on the [inevitable discovery] doctrine to support its denial of the motion to suppress.”).

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Henry L. PRUITT and Mary Pruitt, husband and wife, Appellants, v. Vernon G. SANDS, Appellee.
    No. 4D11-17.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Richard E. Gitlen, Stuart, for appellants.
    Leif J. Grazi, of Grazi & Gianino, LLP, Stuart, for appellee.
   WARNER, J.

This dispute involves the question of whether clustered areca palms extending along a side yard between two homeowners is a hedge. If it is, then according to the Martin County Land Development Code, it must be six feet or less in height. If greater, it must comply with the setback requirements. Although the Martin County landscaping ordinance did not define “hedge,” the county determined that a hedge was made of shrubs and not trees. Because the palms were trees, which are excluded from the setback requirements, they were not a hedge. The neighbor’s stand of palms greatly exceeds six feet, and interferes with the view and air of the appellants; therefore, the appellants filed suit against their neighbor to enforce the code provisions. After a trial at which county officials and landscape experts testified, the court deferred to the interpretation of the county of its ordinance and denied enforcement of the code. We affirm, concluding that the court did not err in giving deference to the county.

“[T]he contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight.” PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988) (citing Warnock v. Fla. Hotel & Rest. Comm’n, 178 So.2d 917 (Fla. 3d DCA 1965)). “The courts will not depart from such a construction unless it is clearly unauthorized or erroneous.” Id. (citing Gay v. Canada Dry Bottling Co., 59 So.2d 788 (Fla.1952)). “If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed.” Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003). “The agency’s interpretation need not be the only one or the most desirable; it is enough if that interpretation is permissible under the language of the statute.” Stuart Yacht Club & Marina, Inc. v. Dep’t of Natural Res., 625 So.2d 1263, 1267 (Fla. 4th DCA 1993) (citing Fla. Power Corp. v. Dep’t of Envtl. Regulation, 431 So.2d 684 (Fla. 1st DCA 1983)).

Areca palms are mentioned in the Land Development Code under the landscaping provisions regarding trees. See Martin County, Fla., Land Development Code, Division 15. § 4.664.B.3. Therefore, the county’s construction that use of them along a boundary line does not violate the ordinance, both because trees are excluded from the setback requirements and because they are not a hedge, has support in the wording of the code. According to the defense’s landscaping expert, he has used areca palms on boundary lines in Martin County without objection. Thus, we cannot say that the interpretation of the county of its ordinances is clearly erroneous, as it is within a range of permissible interpretations under the ordinance, even if we might disagree that this is the best interpretation of the ordinances as a whole.

Appellants rely on Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA 2001), for the proposition that the trial court did not need to give deference to the county’s interpretation of the ordinance. Pinecrest is distinguishable, as there we found that the county’s interpretation of its comprehensive plan was not entitled to deference because of the statutory right of an aggrieved party to challenge a development order’s consistency with the comprehensive plan. We reasoned that if the legislature had intended the courts to give deference to the county’s interpretation and review it under a “fairly debatable” standard, the statute would have expressly addressed that deferential standard in the statute. The statute instead permitted an aggrieved party to file suit to contest the consistency between a development order and the comprehensive plan. See § 163.3215(1), Fla. Stat. (2000). That required the judge to determine whether the development order was improper. We noted that where the judge must make that determination, “as a general matter the requirement for a determination of the propriety of the official action should not be understood as requiring the court to defer to the official whose conduct is being judged.” Pinecrest, 795 So.2d at 197. In this case, however, that portion of the ordinance which permits a party to bring a private action to enforce an ordinance, not challenge it, does not require a judge to determine the propriety of orders of county officers. Thus, the deferential standard applies.

For the foregoing reasons, we affirm the trial court.

STEVENSON and CONNER, JJ., concur.


text:
    Arthur SCHWARTZ, Appellant, v. Peggy B. SCHULMAN and L’Ambiance Homeowners’ Association, Appellees.
    No. 4D10-4676.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Jonathan Mann, Sophia Blair and Robin Bresky of the Law Offices of Robin Bre-sky, Boca Raton, for appellant.
    Sara M. Sandler and John P. Joy of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellee Peggy B. Schulman.
    Michele McCaul Ricca and John H. Richards of Boyd Richards Parker & Co-lonnelli, P.L., Fort Lauderdale, for appel-lee L’Ambiance Homeowners Association.
   PER CURIAM.

Affirmed. See Cargile-Schrage v. Schrage, 908 So.2d 528 (Fla. 4th DCA 2005); Strasser v. Yalamanchi, 783 So.2d 1087 (Fla. 4th DCA 2001).

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    CASTELO DEVELOPMENT, LLC, Appellant, v. AURORA LOAN SERVICES, LLC., Mercedes Cueto a/k/a Mercedes H. Cueto a/k/a Mercedes Khan, Unknown Spouse of Mercedes Cueto a/k/a Mercedes H. Cueto a/k/a Mercedes Khan, if any, any and all Mercedes Khan, if any, any and all unknown parties claiming by, through, under and against the herein named individual appellee(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as spouses, heirs, devises, grantees or other claimants, Bank of America, N.A., John Doe and Jane Doe as unknown tenants in possession, Appellees.
    No. 4D11-2409.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, for appellant.
    H. Michael Muniz of Kahane & Associates, P.A., Plantation for Appellee-Aurora Loan Services, LLC.
   PER CURIAM.

Affirmed. See Castelo Dev., LLC v. Aurora Loan Svcs., 85 So.3d 515 (Fla. 4th DCA 2012).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Melissa HARRY, Appellant, v. Lisa SMITH, Appellee.
    No. 4D11-1997.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.

      Melissa Harry, Miami, pro se.
    Teresa Williams of Williams and Trese, LLP., Fort Lauderdale, for appellee.
   PER CURIAM.

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

POLEN, HAZOURI and LEVINE, JJ., concur.


text:
    Christopher Allen LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3215.
    District Court of Appeal of Florida, First District.
    April 18, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


text:
    Anil MANDAL, M.D., Petitioner, v. Bobbie LEE, as Personal Representative of the Estate of Darryell Gene Lee, Sr., deceased, on behalf of the Estate of Darryell Gene Lee, Sr., and the lawful survivors of the Decedent, to wit: Bobbie Lee, as surviving spouse, Dearis Jacory Lee, as surviving minor daughter and Darryell Lee, Jr., as surviving minor son, St. Luke’s Hospital Association n/k/a Mayo Clinic Florida, Nancy Lee Dawson, M.D., Ira Harmon, M.D., P.A., John Petersen, D.O., Jeffrey Stephen Hoffman, M.D., and Borland-Groover Clinic, P.A., Respondents.
    No. 1D11-5283.
    District Court of Appeal of Florida, First District.
    April 18, 2012.
    Michael R. D’Lugo and Richard E. Ramsey of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Petitioner.
    Darryl L. Lewis of Searcy Denney Sca-rola Barnhart & Shipley, P.A., West Palm Beach; and Philip M. Burlington and Andrew A. Harris of Burlington & Roeken-bach, P.A., West Palm Beach, for Respondents.
   PER CURIAM.

DENIED. See Williams v. Oken, 62 So.3d 1129 (Fla.2011).

BENTON, C.J., WOLF and VAN NORTWICK, JJ., concur.


author: LAGOA, J.

text:
    A.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1486.
    District Court of Appeal of Florida, Third District.-
    April 18, 2012.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Christine Dimitriou and Shannon Healy, Certified Legal Interns, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   LAGOA, J.

The juvenile, A.L., appeals his finding of guilt on the charge of loitering and prowling following an adjudicatory hearing. Because we find that the State failed to present sufficient evidence of guilt, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the adjudicatory hearing, the State presented the testimony of the two arresting officers. The officers testified that on the evening of December 2, 2010, they were patrolling the south end of Miami Beach because of an increase in the number of burglaries in that area. The officers were in plainclothes. At approximately 7:15 p.m. the officers saw two individuals, one of whom was A.L., between two apartment buildings. The individuals were pulling themselves up in order to look into the windows of the apartment buildings. The officers did not see A.L. trying to open any window. The officers watched the individuals for about five to eight minutes, and then approached the individuals with their firearms and badges exposed.

A.L. concealed himself in a nearby staircase. One of the officers followed him up the staircase. When the officer caught up to A.L., he said, “[L]ook, man, I was just scared, I don’t want to go to jail tonight.” When the officer asked A.L. why he was looking in the windows, A.L. responded that he was looking for a friend. A.L. did not identify the friend or an apartment number for the friend. The officer performed a pat-down search of A.L., which yielded nothing. A.L. was subsequently arrested and charged with loitering and prowling.

During the adjudicatory hearing, A.L. moved for a judgment of dismissal. The motion was denied. At the disposition hearing, the court withheld adjudication, and entered a judicial warning.

II. ANALYSIS

On appeal, A.L. argues that the trial court erred in denying his motion for judgment of dismissal because the State failed to produce sufficient evidence that he committed the offense of loitering and prowling. We agree.

In order for a defendant to be found guilty of loitering and prowling, the State must prove that: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals, and (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. See § 856.021(1), Fla. Stat. (2010); State v. Ecker, 311 So.2d 104, 110 (Fla.1975). In Ecker, the Supreme Court stated that in order to justify an arrest for loitering and prowling, “ ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ a finding that a breach of the peace is imminent or the public safety is threatened.” 311 So.2d at 109 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also Addis v. State, 557 So.2d 84, 85 (Fla. 3d DCA 1990).

We find that there is insufficient evidence to support the trial court’s conclusion that A.L. committed the offense of loitering and prowling. It is not unusual for a person to be in a public alleyway, between two apartment buildings, in the early evening hours on Miami Beach. And although A.L. and his companion were seen looking into apartment windows, A.L. did not possess any tools, and the police officers did not observe him trying to pry open any of the windows. Looking through windows, at this time of day and in this location, without more, is not sufficient to establish that A.L. loitered at a time, in a place, or in a manner unusual for law-abiding individuals. See K.H. v. State, 8 So.3d 1155 (Fla. 3d DCA 2009) (concluding evidence insufficient to establish loitering and prowling when, at 11:00 p.m., juvenile and his companion were looking into the windows of a parked pickup truck in a high crime area, but did not try the door handles, did not try to break into the truck, and did not have anything in their hands); Addis, 557 So.2d at 84 (noting that looking into the windows of parked vehicles at 2:40 a.m., where no door handles were tried and no vehicles were repeatedly circled, cannot be considered criminal activity).

Additionally, in this case the officers were unable to point to specific facts which indicated that a breach of the peace was imminent or that the public safety was threatened. As stated above, A.L. possessed no tools, and was not seen trying to open or break any window. A.L. was in a public alleyway, in the early evening hours. These facts do not support a conclusion that A.L.’s behavior posed an immediate threat to the public safety or property. See Gonzalez v. State, 828 So.2d 496 (Fla. 3d DCA 2002) (reversing a conviction for loitering and prowling because the defendant’s actions did not demonstrate incipient criminal behavior amounting to an imminent breach of the peace or an imminent threat to public safety).

Indeed, once A.L. recognized the police officer, he complied fully with the officer’s requests and answered his questions. The fact that the officer did not believe A.L.’s explanation that he was looking for a friend is not sufficient, on its own, to justify the officer’s alarm or immediate concern for the public safety. See Addis, 557 So.2d at 85; Chamson v. State, 529 So.2d 1160, 1161 (Fla. 3d DCA 1988). See generally Ecker, 311 So.2d at 110 (explaining that failure to explain presence is not an element of the crime but rather a defense; holding that requiring defendant to “explain his presence and conduct” is constitutionally prohibited).

III. CONCLUSION

Because neither element necessary to establish a crime under section 856.021(1), Florida Statutes, was satisfied, we conclude that A.L.’s actions in the instant case do not amount to evidence sufficient to sustain his conviction for loitering and prowling. Accordingly, we reverse the trial court’s finding of guilt, and the case is remanded with directions to discharge A.L.

Reversed and remanded.

      . "The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005). Thus, a de novo standard applies. Id. at 285. “While the evidence must be viewed in the light most favorable to the State, if the State fails to present sufficient evidence to establish a prima facie case of the crime charged, then a judgment of dismissal is proper.” P.N. v. State, 976 So.2d 90, 91 (Fla. 3d DCA 2008).


text:
    Norma Patricia CERRATO, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-2753.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.

      Michael A. Pizzi, Jr., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


text:
    Mattie LOMAX, Appellant, v. BAYVIEW LOAN SERVICING, LLC., etc., Appellee.
    No. 3D11-2550.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Mattie Lomax, in proper person.
    Kopelowitz Ostrow, and John J. Shaha-dy, Fort Lauderdale, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

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


text:
    Stuart DELANCY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6588.
    District Court of Appeal of Florida, First District.
    April 19, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Kristy Lynn HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6094.
    District Court of Appeal of Florida, First District.
    April 19, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138, 140-41 (Fla. 1st DCA 2011).

DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    Cedric Antonio YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4972.
    District Court of Appeal of Florida, First District.
    April 19, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    Dannie J. MOORE, Appellant, v. DEPARTMENT OF REVENUE o/b/o Shaunett T. HAYES, Appellee.
    No. 5D12-121.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Carlton Pierce of Carlton Pierce, P.A., West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

ON CONFESSION OF ERROR

Based on Appellee’s confession of error, this matter is summarily reversed pursuant to Fla. R.App. P. 9.315(b) and remanded to the trial court for further proceedings.

REVERSED and REMANDED.

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


author: MONACO, J.

text:
    ORANGE COUNTY PROPERTY APPRAISER, et al., Appellant, v. Bernard D. SOMMERS and Arlene P. Sommers, Appellee.
    No. 5D11-240.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.

      Thomas J. Wilkes, of GrayRobinson, P.A., Orlando, for Appellant, Orange County Property Appraiser.
    Steven R. Bechtel, of Mateer & Harbert, P.A., Orlando, for Appellant, Orange County Tax Collector.
    Bernard D. Sommers, Winter Park, for Appellee.
   MONACO, J.

This case of first impression compels us to consider what the innocent looking phrase, “placed on the tax roll,” means with respect to the ten per cent cap on increases in the assessment of continuously owned non-homestead residential real property that previously enjoyed the status of homestead property. The phrase is found in section 193.1554(3), Florida Statutes (2010). The trial court concluded that the phrase meant that the homestead value of continuously owned residential property remained in place even after the property no longer bore a homestead classification, and that the assessment on the property could not be increased by more than the ten per cent limit found in section 193.1554(3). The appellants, Orange County Property Appraiser and Orange County Tax Collector, appeal the final judgment finding that the 2009 assessed value of the residential property owned by the appellees, Bernard D. Sommers and Arlene P. Sommers, was incorrect. We conclude that the trial court misinterpreted the statute and reverse.

The facts are neither complicated, nor contested. Mr. and Mrs. Sommers owned a home in Maitland, Florida, from 1960 to 2010. They continuously resided in that house from the date of purchase until they moved to a different residence in November 2008. Although they were not living in the home, they still owned it until January 2010, at which time they sold it. It is uncontested that the house was not homestead from the day Mr. and Mrs. Sommers moved out in 2008, to the day it was sold in 2010.

In 2008, the property enjoyed the homestead exemption because it was the Som-mers’ residence on January 1st of that year. The Property Appraiser assessed the home in 2008 in compliance with the “Save Our Homes” assessment cap contained in Article VII, Subsection 4(d) of the Florida Constitution, and implemented in section 193.155(1), Florida Statutes (2010). The assessment cap on the Som-mers’ property, assessed as homestead, was three per cent. After applying the homestead exemption with the Save Our Homes cap, the Property Appraiser assessed the taxable value of the Sommers’ home for that year at $134,060.

In 2009, because Mr. and Mrs. Sommers no longer lived in the home, the property became a “nonhomestead residential” property for ad valorem tax purposes. The Property Appraiser assessed the Som-mers’ home as of January 1, 2009, using the just value or fair market value standard, at $279,955. Compared to the taxable value of the homestead in 2008 of $134,060, the assessment in 2009, was an increase in the taxable value of the home of $145,895, or 108.1%.

Mr. and Mrs. Sommers disputed the 2009 assessment and filed a petition with the Orange County Value Adjustment Board (“VAB”), seeking relief. They paid their taxes in full, but under protest. At the VAB hearing before a special magistrate, the Sommers argued that because the Property Appraiser had increased the assessment of their now non-homestead residential property by an amount in excess of ten per cent of the previous-year assessment, the Appraiser had violated the ten per cent cap imposed on assessment increases for that classification of property under newly adopted Subsection 4(g) of Article VII of the Florida Constitution and section 193.1554, Florida Statutes. The Property Appraiser countered that he properly assessed the Sommers’ nonhome-stead residential property at its just value for 2009 and that only in 2010 would the Sommers’ property be subject to the ten per cent cap on assessment increases pursuant to section 198.1554.

The special magistrate recommended that the Sommers’ petition be denied and that the 2009 assessment be upheld. The VAB thereafter approved the recommendation. Mr. and Mrs. Sommers commenced the underlying action in the circuit court to appeal the decision of the VAB. Eventually, however, the trial court granted the motion of the Sommerses for summary judgment, holding that the ten per cent cap on an increase of an assessment of nonhomestead residential property set forth in subsection 4 of Article VII of the state constitution and section 193.1554(3), Florida Statutes, applied to the Sommers’ property for 2009. This timely appeal followed.

The section of the Florida Constitution governing the valuation of real property for ad valorem tax purposes and a number of statutes concerning the same matter must be spread upon the table in order to understand the arguments of the parties. We begin with the constitution.

The Florida Constitution mandates the just valuation of all property for ad valo-rem tax purposes. Art. VII, § 4, Fla. Const.; Bystrom v. Whitman, 488 So.2d 520, 521 (Fla.1986). General law provides, concomitantly, that all real property shall be assessed according to its just value on January 1 of each year. See § 192.042(1), Fla. Stat. Homestead property is treated somewhat differently in that it is benefit-ted by a number of tax breaks after it is justly valued. See, e.g., § 196.031, Fla. Stat. (2010). In the event of a termination of homestead status, however, real property must be assessed as provided by general law. Art. VII, § 4(d)((6).

Article VII, Section 4(g), of the Florida Constitution considers the subject of non-homestead residential property. It provides:

(g) For all levies other than school district levies, assessments of residential real property, as defined by general law, which contains nine units or fewer and which is not subject to the assessment limitations set forth in subsections (a) through (d) [including the homestead exemption] shall change only as provided in this subsection.
(1) Assessments subject to this subsection shall be changed annually on the date of assessment provided by law; but those changes in assessments shall not exceed ten percent (10%) of the assessment for the prior year.

We have added emphasis to certain provisions of this passage because it is informative with regard to the codification by the legislature of its requirements. Section 4(g) essentially defines nonhome-stead residential property as being residential real property of less than nine units which is not accorded homestead treatment for real property tax purposes. That is to say, in order to be classified as nonhomestead residential property and to receive the benefit of the ten per cent tax increase limitation, a parcel of real estate cannot at the same time be subject to the homestead exemption.

Section 193.1554, Florida Statutes, which implements these constitutional requirements, provides in pertinent part:

(1) As used in this section, the term “nonhomestead residential property” means residential real property that contains nine or fewer dwelling units, including vacant property zoned and platted for residential use, and that does not receive the exemption under s. 196.031 (the homestead exemption).
(2) For all levies other than school district levies, nonhomestead residential property shall be assessed at just value as of January 1, 2008. Property placed on the tax roll after January 1, 2008, shall be assessed at just value as of January 1 of the year in which the property is placed on the tax roll.
(3) Beginning in 2009, or the year following the year the property is placed on the tax roll, whichever is later, the property shall be reassessed annually on January 1. Any change resulting from such reassessment may not exceed 10 percent of the assessed value of the property for the prior year.
(4) If the assessed value of the property as calculated under subsection (3) exceeds the just value, the assessed value of the property shall be lowered to the just value of the property.

(Emphasis added).

In accordance with the constitution, the statute also underscores that nonhome-stead residential real property is a parcel that has nine or fewer units and which does not already enjoy a homestead exemption. Thus, if a property is homestead property, it cannot by definition also enjoy the ten per cent limitation for nonhome-stead property. The conflict in the present case, however, stems from the words “placed on the tax roll” found in subsection (3). It says that nonhomestead residential property is subject to the ten per cent increase limitation beginning in the “year following the year the property is placed on the tax roll.”

More specifically, the issue before us is whether the ten per cent cap applies to residential property that changes its classification from homestead to nonhome-stead, but does not change ownership. Orange County argues that Mr. and Mrs. Sommers cannot enjoy the Save Our Homes cap on their property once it was no longer their homestead. Thus, according to Orange County, once the house became a non-homestead property, the assessor was required to assess the house at its just or fair market value. Only in subsequent years would it be the beneficiary of the ten per cent cap. Otherwise, the property which is currently not entitled to the Save Our Homes discount, would inherently benefit from that discount if the 2008 homestead value of the house was utilized as the base value, so long as it continued to be owned by Mr. and Mrs. Sommers.

The Sommerses argue to the contrary that section 193.1554(3), Florida Statutes, which governs non-homestead residential property, does not allow an assessment that exceeds ten per cent of the assessed value for the property for the prior year. They insist that their house has been on the tax roll since 1960, albeit as a homestead property, and that the simple change in the classification of the property does not put it on the tax roll anew. That is, the Sommers say their property was “placed on the tax roll” in 1960, not in 2008.

While we certainly understand the position adopted by Mr. and Mrs. Sommers, we conclude that the legislature did not intend a single piece of residential property to be entitled to both the homestead exemption and tax cap and the ten per cent non-homestead tax cap at the same time. Article VII, Section 4(g) and section 198.1554(2) simply do not contemplate a single parcel receiving the benefit of both exemptions at the same time. The appellants are, therefore, correct that once the property changes classification from homestead to nonhomestead, it must then be revalued at its fair market value for ad valorem tax purposes before it can receive the benefit of the ten percent limitation in future tax years.

The architecture of the ad valorem tax structure within Florida confirms this conclusion. When real property first becomes classified as homestead, it is “assessed at just value as of January 1st of the year following the establishment of the homestead ...” See Art. VII, § 4(d)(4), Fla. Const. Analogously, when lands classified as agricultural are diverted to nonagricul-tural use, or are no longer used for agriculture, or are rezoned to a nonagrieultural use at the request of the owner, those lands must also be reclassified and reassessed at just value accordingly. See § 193.461(4)(a), Fla. Stat. (2010). In similar fashion, nonhomestead residential property is also required to be assessed at just value on January 1st of the year following a change of ownership or control. See § 193.1554(5), Fla. Stat. (2010). The pattern is clear.

Finally, we note that the 2012 Florida Legislature adopted legislation intended, in part, to clarify the current issue. CS/HB 7097 would amend section 193.1553(2) to read as follows:

(2) For all levies other than school district levies, nonresidential real property and residential real property that is not assessed under s. 193.155 or s. 193.1554 shall be assessed at just value as of January 1 of the year that the property becomes eligible for assessment pursuant to this section.

The House of Representatives Final Bill Analysis for CA/HB 7097 contains the following passage:

The bill also ... clarifies that certain nonhomestead property is to be assessed at just value when it is subject to a new assessment limitation.

Later, after discussing the unfortunate use of the term “placed on the tax roll,” the analysis repeats that:

The bill amends ss. 193.1554, F.S., and 193.1555, F.S., to clarify that property is to be assessed at just valuation when it is subject to a new limitation.

We accept this statutory modification and bill analysis as persuasive in assessing the intention of the legislature in its adoption of the subject statutes. It appears to confirm our independent analysis of the meaning of the terms and the intention of the legislature.

Accordingly, the judgment is reversed and remanded for action consistent with this opinion.

REVERSED and REMANDED.

LAWSON and EVANDER, JJ., concur.


text:
    Wasimul PIRZADA, Appellant, v. Jacqueline PIRZADA, Appellee.
    No. 5D10-3249.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Gary S. Israel, of Gary Israel, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Wasimul Pirzada appeals from an amended final judgment of marriage dissolution. He challenges the alimony and child support awards to his former wife as lacking evidence or findings to support them and failing to account for each other. Our full consideration of the issues on appeal is hampered by the lack of a trial transcript. See Mobley v. Mobley, 18 So.3d 724, 725 (Fla. 2d DCA 2009) (reciting that in the absence of a hearing transcript, an appellate court is limited to correcting errors of law apparent on the face of the judgment). Appellant did submit a limited stipulated statement of evidence, along with the parties’ financial affidavits and Child Support Guideline worksheets. From the limited record before us, we find no error apparent in the alimony award. However, the child support award does not appear to account for the alimony award. See Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) (reversing because trial court’s child support calculation failed to account for the alimony award). Accordingly, we reverse and remand for explanation or recalculation of child support. Id. In all other respects, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Willie Tyrone ALESTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1109.
    District Court of Appeal of Florida, First District.
    April 20, 2012.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


text:
    Jerry OSIAS, Petitioner, v. Ric L. BRADSHAW, as Sheriff of Palm Beach County, Florida, Appellee.
    No. 4D12-1310.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2012.
    Carey Haughwout, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jerry Osias petitions this court for a writ of habeas corpus as the trial court denied his motion to set bond. We grant the petition because of the lack of findings to support that denial. See Roberts v. State, 10 So.3d 1209 (Fla. 4th DCA 2009); Golden v. Crow, 862 So.2d 903 (Fla. 2d DCA 2003). Upon remand, the trial court shall either promptly set a reasonable bond or make the requisite findings in support of denial of bond. Roberts, 10 So.3d 1209.

Accordingly, we grant the petition for writ of habeas corpus and remand to the trial court for further bond proceedings forthwith and in accordance with this opinion.

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


text:
    Jerry M. MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4277.
    District Court of Appeal of Florida, First District:
    April 23, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Heather NEUMAN, Petitioner, v. Jeffrey KUSCH, Respondent.
    No. 1D11-6017.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Virgil W. Wright, III, and Bradley R. Killinger of Cameron Hodges Coleman La-Pointe & Wright, P.A., Ocala, for Petitioner.
    William Dennis Brannon of Brannon & Brannon, Fort Walton Beach, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to Petitioner’s pending motion to vacate the trial court’s order imposing sanctions.

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Frank Lester McCAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5852.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this case challenges his convictions for possession of pseu-doephedrine with intent to manufacture a controlled substance and for unlawful manufacturing of methamphetamine. The possession charge is a violation of section 893.149(l)(b), Florida Statutes (2010), and the manufacturing charge is a violation of section 893.13(l)(a)l., Florida Statutes (2010). The appellant asserts that under Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), both statutes are facially unconstitutional because they require felony punishments for strict liability offenses.

We have previously rejected the argument that section 893.13 creates a strict liability crime. See, e.g., Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011); Williams v. State, 45 So.3d 14, 16 (Fla. 1st DCA 2010); Harris v. State, 932 So.2d 551, 552 (Fla. 1st DCA 2006). “Shelton is not binding on this court or any other state court,” Flagg at 140, and the appellant does not persuade us to recede from our settled precedent.

In addition, under section 893.149(l)(a), it is unlawful “to knowingly or intentionally” possess a chemical listed in section 893.033 with the intent to unlawfully manufacture a controlled substance. The plain statutory language thus rebuts Appellant’s argument for strict liability.

For these reasons, we AFFIRM the appellant’s convictions.

WOLF, PADOVANO, and MARSTILLER, JJ., concur.


text:
    ADMINISTRATIVE CONCEPTS CORP. and FWCIGA, Appellants, v. Henry SALEM, Appellee.
    No. 1D12-0436.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, and F. Louis Stern of McCon-naughhay, Duffy, Coonrod, Pope & Weaver, P.A., Sarasota, for Appellants.
    Rosemary Eure of Lancaster & Eure, P.A., Sarasota, for Appellee.
   PER CURIAM.

Upon review of Appellant’s timely response to this Court’s February 14, 2012, order to show cause, the Court dismisses this appeal for lack of jurisdiction because the order under review is neither a final order nor an appealable nonfinal order under Florida Rule of Appellate Procedure 9.180(b)(1). The Motion for Remand, filed February 2, 2012, is denied as moot.

DISMISSED.

DAVIS, CLARK, and ROWE, J.J., concur.


text:
    K.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1771.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Carlos J. Martinez, Public Defender and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General Assistant and Patrick C. McCar-dle, Certified Legal Intern, for appellee.
    Before RAMIREZ and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

On this appeal from a restitution order entered after a plea to burglary, the State concedes, and we agree, that the trial court reversibly erred in failing to grant a brief continuance so that the assistant public defender assigned to the case could appear and instead forcing the respondent to be represented by two other assistants who were entirely unfamiliar with the case. See M.F. v. State, 920 So.2d 1252 (Fla. 2d DCA 2006). Accordingly, the order under review is reversed for a new restitution hearing.

Reversed and remanded.

      . This holding moots the other issues raised on appeal.


text:
    Brandon MASON, et al. v. James Ray HILTON, et al.
    No. 2012-CC-0763.
    Supreme Court of Louisiana.
    April 9, 2012.
   PER CURIAM.

| granted. The decision of the trial court to deny the defendants’ right to a jury trial is reversed and the defendants’ right to jury trial is reinstated. “The right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss, or forfeiture thereof.” Berrigan v. Deutsch, Kerrigan & Stiles, 04-0189 (La.3/26/04), 871 So.2d 332.

KNOLL, J., would deny stay and writ.

JOHNSON, J., recused.

KIMBALL, C.J., not participating.


text:
    In re John H. CLINE, Justice of the Peace, District 10, Pointe Coupee Parish.
    No. 2012-O-0777.
    Supreme Court of Louisiana.
    April 11, 2012.
   ORDER

h Considering the motion for interim disqualification filed by Justice of the Peace John H. Cline, and the concurrence thereto by the Judiciary Commission of Louisiana,

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace John H. Cline, District 10, Pointe Coupee Parish, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately.

FOR THE COURT:

/s/ Marcus R. Clark Justice, Supreme Court of Louisiana


text:
    STATE of Louisiana v. Generio ALLEN.
    No. 2011-K-2843.
    Supreme Court of Louisiana.
    April 13, 2012.
   PER CURIAM.

11Writ granted. The state appealed the district court’s ruling setting aside two bond forfeiture judgments and a three-judge panel of the court of appeal reversed the district court with one dissent. Thereafter, the court of appeal declined to refer the matter for reargument before a panel of at least five judges. The commercial surety timely sought review from this Court.

La. Const, art. 5, § 8(B) requires that “in civil matters only, when a judgment of a district court or an administrative agency determination in a workers’ compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.” In declining to apply this provision, the court of appeal noted that it “has consistently and as custom held that review of a judgment or order coming to this court |2from the Criminal District Court for the Parish of Orleans would only be heard by a three-judge panel and that no five-judge panel would be empaneled when the vote was 2-1 to reverse the trial court regardless of whether the judgment or order sounded in criminal law or civil law.” The panel justified this practice, as applied to the review of bond forfeiture proceedings, with jurisprudence which declared under a markedly different jurisdictional framework that “while [a bond forfeiture] proceeding is civil in nature, judicial review of a proceeding to forfeit a bond lies to the court having jurisdiction over the criminal case.” State v. Kaercher, 380 So.2d 1365, 1366 (La.1980). The court of appeal erred in doing so. The principle enunciated in Kaercher is based on venerable jurisprudence that, while recognizing that bond forfeiture proceedings are intrinsically civil matters, for jurisdictional purposes only they were treated as criminal. See, e.g., State v. Hendricks, 5 So. 24, 25, 40 La.Ann. 719, 722 (La.1888); see also State v. Sandoz, 246 So.2d 21, 22 n. 1, 258 La. 297, 301 (1971). In the present case, there is no question of jurisdiction and the cases relied on by the court below provide no authority for failing to follow the mandatory language of La. Const, art. 5, § 8(B). The court of appeal further erred in finding that it was without authority to refer the matter to a five-judge panel because the commercial surety did not bring the error to the court’s attention until shortly after the delay to seek rehearing had passed. See Agrawal v. Rault Club Ten, Inc., 482 So.2d 184 (La.App. 4 Cir.1986).

Because one judge of the three-judge panel dissented, the court of appeal erred in failing to direct that the case be rear-gued before a [¡¡five-judge panel as required by La. Const, art. 5, § 8(B). Accordingly, the judgment of the court of appeal is vacated, and the case remanded to the court of appeal for reargument before a five-judge panel as required by the state constitution.

CLARK, J., dissents and would deny the writ.


text:
    Leonard ADAMS, et al. v. CSX RAILROADS, et al.
    No. 2012-C-0139.
    Supreme Court of Louisiana.
    April 13, 2012.
   PER CURIAM.

In this class action lawsuit, the trial court, Judge ad hoe Robert Burns presiding, received a recommendation from the Special Master regarding the cy pres distribution of funds remaining after the original defendants settled and the class members and attorneys were paid. Among the recommendations of the Special Master was that 10% of the residual funds be awarded to the Louisiana Bar Foundation (“LBF”).

Judge Burns declined to adopt this portion of the Special Master’s recommendation. Citing his position as a fellow of the LBF, Judge Burns expressed concern that it would be a violation of the Code of Judicial Conduct for him to make an award to the LBF.

LBF appealed the trial court’s judgment. The court of appeal reversed and directed Judge Burns to “render judgment awarding the LBF 10% of the unused funds available as a Cy Pres distribution for efforts solely within the boundaries of Orleans Parish, as recommended by the Special Master.” Adams v. CSX Railroads, 11-0286 (La.App. 4th Cir. 12/14/11), 80 So.3d 1160.

Succor, Inc., one of the original applicants for the cy pres funds, now seeks review of that judgment.

Canon 2B of the Code of Judicial Conduct prohibits a judge from “lendfing] the prestige of judicial office to advance the private interest of the judge or others.” In In re: Morvant, 09-0747 (La.6/26/09), 15 So.3d 74, we held it was a violation of Canon 2B for a trial judge to order defendants to pay probationary fines to a charitable organization, where the judge served as a member of the organization’s advisory council. In our opinion, we explained that “without question, the ease of association between the monetary assessments and his council position leads to the perception that Judge Morvant misused the prominence of his judicial office to further his personal interests.” Id. at pp. 7-8, 15 So.3d at 79.

While the instant case might at first glance appear to bear some similarities to Morvant, we believe a careful comparison indicates the cases are distinguishable. As discussed in our opinion, Judge Morvant had a “highly visible role” as a member of the “I Care” Advisory Council, which was “composed of community leaders who provide advice to further the organization’s mission of drug prevention in the schools and community.” Id. at p. 5, 15 So.3d at 78. In contrast, although Judge Burns is listed as a fellow of the LBF due to his annual monetary contributions to the organization, it does not appear that Judge Burns serves the LBF in any leadership capacity, such as a board member, director, or committee chair, nor is there is any indication he receives any monetary or non-monetary benefits as a result of his status as a fellow of the LBF. Therefore, we find this case is factually distinguishable from Morvant.

IsMoreover, we believe it is significant that Judge Burns did not make the initial decision approving the distribution to the LBF. Rather, the Special Master made an independent assessment of the worthiness of the entities applying for the cy pres distribution and made recommendations based on this assessment. While we acknowledge the trial court is responsible for approving the distribution, any potential for favoritism by the trial court is greatly minimized when the distribution is based on an independent recommendation by a Special Master.

In summary, under the unique circumstances presented, we do not find Canon 2B precludes Judge Burns from disbursing the cy pres funds to the LBF, as recommended by the Special Master. Accordingly, the writ application is denied.

      . Cy pres is from the French "cy pres comme possible,” meaning "as near as possible.” Cy pres funds typically result from class action lawsuits when it is either impossible or impractical to distribute the funds directly to the individuals who were injured. In those situations, the court may order that the funds be used for grants to benefit the class members indirectly or as near as possible in order to remedy or compensate for the harm to the class members.

      . Judge Burns adopted the Special Master's recommendation in all other respects, and those distributions are not at issue in this writ application.

      . We acknowledge that members of this court are also fellows of the LBF (but not in any leadership positions); however, the rule of necessity allows us to consider the merits of this application. See United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); see also Ignacio v. Judges of U.S. Court of Appeals, 453 F.3d 1160 (9th Cir.2006).

      . Notably, we imposed no discipline in Mor-vant, explaining that any violation in that case did not rise to the level of sanctionable misconduct.


text:
    In re Marcus A. ALLEN, Sr.
    No. 2012-B-0612.
    Supreme Court of Louisiana.
    April 13, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to timely remit funds to third-party medical providers. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Marcus A. Allen, Sr., Louisiana Bar Roll number 26592, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid,

       Chief Justice Kimball not participating in the opinion.