author: MAY, C.J.

text:
    Peter CHOVAN, Appellant, v. Iveta CHOVAN, Appellee.
    No. 4D11-1005.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Roberta G. Mandel of Roberta G. Man-del, P.A., Miami, for appellant.
    No brief filed on behalf of appellee.
   MAY, C.J.

The former husband appeals a final judgment of dissolution. He argues the final judgment fails to accurately reflect a settlement agreement reached between the parties and pronounced on the record. Specifically, he argues error in the trial court’s failure to impute income to the former wife in determining alimony and child support, in the distribution of proceeds from the sale of the former marital residence, and the requirement of life insurance to cover alimony and child support. We affirm the alimony award in part and the life insurance, but reverse the child support award and the distribution of proceeds from the sale of the marital residence. We remand the case to the trial court to correct the final judgment to reflect the settlement agreement as it concerns child support and distribution of the proceeds from the sale of the marital residence.

The parties were married and had three children. The former wife filed a petition for dissolution of the marriage. During a break in the trial court proceedings, the parties reached an amicable settlement agreement. The former wife’s counsel recited the stipulated settlement agreement on the record. The agreement contemplated that the marital home would be sold after the oldest child graduated from high school the following year.

The relevant portions of the agreement are as follows:

FORMER WIFE’S COUNSEL: With respect to the marital residence, it’s going to be put on the market as soon as possible. [The former husband’s counsel] and I will work out the language in the event the parties are unable to agree on the listing Realtor or the listing price.
We have agreed that, until the house is sold, the [former] husband will continue to pay all of the expenses that he has been paying, plus the $660 per pay period as he has been doing; but that once the house is sold, he will pay $1,000 in alimony and whatever the child support for two children will be. And we’ll have to calculate that. Whatever that total is, he will pay.
THE COURT: He will pay all of that in — consistent with his pay periods, how he gets paid?
FORMER WIFE’S COUNSEL: Correct.
THE COURT: Whether it’s bimonthly or however he gets paid?
FORMER WIFE’S COUNSEL: Correct. And by income deduction order.
We have agreed that [the] condominium is worth $62,500. And the wife is to receive one half of that off the top of the proceeds from the sale of the marital residence.
So Chris Link will be paid first, his $5,000 and change .... then [the former husband’s counsel] receives — how much, [former husband’s counsel]?
FORMER HUSBAND’S COUNSEL: $10,000.
FORMER WIFE’S COUNSEL: $10,000 off the top from the sale. My fees and costs are $50,346.21, from the top of the sale proceeds.
THE COURT: And to clarify, Mr. Link’s fee amount is $5,240.99.
FORMER WIFE’S COUNSEL: Thank you.
We’ll determine the child support based on two children.

(Emphasis added).

The trial court instructed the attorneys to mail a proposed final judgment reflecting the agreement. The former wife’s attorney sent a letter to the trial court enclosing a proposed final judgment. The letter indicated that the attorneys had met and drafted the proposed final judgment, but that some minor revisions were needed. The former wife also moved for entry of a final judgment, explaining that the former husband had fired his attorney and hired new counsel, but there had been no substitution of counsel entered. The motion alternatively requested a two-day final hearing to “bifurcate the divorce thereby dissolving the marriage of the parties” if the trial court was not inclined to enter the proposed final judgment.

At a hearing approximately two weeks later, the former husband’s new attorney argued that the proposed final judgment did not reflect the parties’ stipulated settlement agreement. The trial court advised the attorneys that it intended to enter a final judgment in accordance with the settlement agreement, and emphasized that the hearing was not an opportunity for the parties to “renegotiate what they may have agreed to.”

The former husband’s counsel disagreed with the proposed final judgment as it related to alimony and child support. The trial court asked the former husband’s counsel to submit a proposed final judgment; counsel agreed to do so. The former husband’s counsel did so three days later, attaching a letter objecting to the former wife’s proposed final judgment as inconsistent with the parties’ stipulated settlement agreement.

The trial court adopted the former wife’s proposed final judgment without change. The former husband moved for rehearing, raising the same objections concerning alimony and child support, and adding that the judgment failed to accurately address the distribution of proceeds from the sale of the marital home. The trial court denied the motion, resulting in this appeal.

On appeal, the former husband continues to argue error in the inconsistency between the final judgment and the settlement agreement. He further argues that the trial court failed to make findings of fact to support its alimony and child support awards, erred in the distribution of the proceeds from the sale of the marital home, and erred in requiring that the former husband maintain life insurance. No answer brief has been filed.

“An award of alimony will usually not be reversed on appeal absent an abuse of discretion.” Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). We similarly review child support awards for an abuse of discretion. McKenna v. McKenna, 31 So.3d 890, 891 (Fla. 4th DCA 2010).

“Florida courts do not take lightly agreements made by husband and wife concerning spousal support.... [And it is the] well-established policy in Florida that settlement agreements are highly favored in the law.” Griffith v. Griffith, 860 So.2d 1069, 1078 (Fla. 1st DCA 2003) (citing Dorson v. Dorson, 393 So.2d 632, 633 (Fla. 4th DCA 1981)). “ ‘[T]he fact that one party to the agreement apparently made a bad bargain is not a sufficient ground, by itself, to vacate or modify a settlement agreement.’ ” Id. (alteration in original) (quoting Casto v. Casto, 508 So.2d 330, 334 (Fla.1987)).

Here, the parties began the dissolution proceeding only to promptly reach a settlement agreement. The trial court then had the former wife’s counsel recite the agreement on the record. The trial court asked each party whether they had discussed the terms with their lawyer and had all of their questions answered. Both parties responded in the affirmative. The trial court then requested the parties to collaboratively submit a proposed final judgment.

Both lawyers jointly drafted the proposed judgment; the former wife’s counsel submitted it to the trial court. After the proposed judgment had been prepared, but before its submission to the trial court, the former husband consulted a new attorney, and apparently no longer agreed to all the terms. We have reviewed both the transcript and the final judgment and find them to be consistent with regard to the alimony award in some respects. The settlement agreement provides for durational alimony in the amount of one thousand dollars per month, but did not specify that it would continue for ten years. Accordingly, we affirm the alimony award of one thousand dollars per month, but remand for a determination of the length of the alimony award. On remand, the parties can stipulate to a period of ten years, or the trial court can make findings consistent with section 61.08, Florida Statutes (2009).

The child support award, however, was to be agreed upon subsequently, but the record does not reflect a meeting of the minds on this award. The former husband specifically objected to this award and the trial court’s failure to impute income to the wife for purposes of calculating the award. The pronouncement of the agreement reflects that child support would be based upon two children. Yet, the final judgment encompasses three children. It is inconsistent with the announced settlement agreement. We therefore reverse and remand the case for the trial court’s determination of child support, at which time the trial court may consider or impute income to the former wife, if appropriate. See, e.g., Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999) (“For purposes of child support, the trial court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the spouse’s physical incapacity or other circumstances beyond the parent’s control.”).

We also find an inconsistency in the payment of attorneys’ fees from the distribution of proceeds from the sale of the marital home. The settlement agreement provided that both parties’ attorneys’ fees would be paid from the proceeds of the sale of the house “off the top.” However, the written final judgment places responsibility for the payment of the former husband’s attorneys’ fees solely on the former husband. We therefore reverse that part of the final judgment and remand the case to the trial court to correct the judgment to reflect the terms of the settlement agreement.

We do find reference to life insurance in the pronounced settlement agreement. We therefore find no error in the requirement of life insurance.

We reverse that part of the final judgment as it concerns the duration of the alimony award, the entire child support award, and the distribution of proceeds from the sale of the marital home. We affirm in all other respects. We remand the case to the trial court for correction of the final judgment.

Affirmed in part, Reversed in part, and Remanded.

HAZOURI and GERBER, JJ., concur.

      . The former husband repeatedly argues that the trial court failed to make the appropriate findings with respect to child support and alimony; however, these findings are not required when the parties enter into a settlement agreement. Because " ‘[a] marital settlement agreement ... which is entered before the dissolution of marriage is binding upon the parties,' ” the ordinarily necessary findings are preempted by the parties’ agreement. Griffith, 860 So.2d at 1073 (quoting Dowie v. Dowie, 668 So.2d 290, 292 (Fla. 1st DCA 1996)).


source: Caselaw Access Project

author: THOMAS, J. BENTON, C.J., SWANSON, J.,

license: Public Domain

text:
    Dannie Stanford HOLDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1828.
    District Court of Appeal of Florida, First District.
    June 14, 2012.

      Dannie Stanford Holden, Jr., pro se, Appellant.
    Nancy A. Daniels, Public Defender, Glenna Joyce Reeves and Steven L. Seli-ger, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

In this Anders appeal, Appellant entered a plea of nolo contendere to the lesser included charge of attempted sexual battery and resisting an officer without violence. Appellant sought to preserve for appeal the review of the trial court’s denial of his motion to suppress his confession and the trial court’s determination on the admissibility of the child victim’s out-of-court statements to a Child Protective Team (“CPT”) forensic interviewer and the doctor who performed the forensic medical evaluation.

Having pled nolo contendere, Appellant is limited as to the issues that he can raise on direct appeal. Robinson v. State, 373 So.2d 898, 902 (Fla.1979). A defendant who pleads nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal. Fla. R.App. P. 9.140(b)(2)(A)(i). A trial court is obligated to determine the dispositive nature of an issue reserved for appeal. See Everett v. State, 535 So.2d 667 (Fla. 2d DCA 1988). Here, the State did not stipulate, and the trial judge erroneously declined to determine that these issues are dispositive, deferring the determination to this court.

We have reviewed the entire record before us and conclude that the two issues reserved for appeal are not disposi-tive. As to the first issue, Appellant’s confession, we note that a defendant who has pled no contest may not preserve as an issue the trial court’s failure to suppress a confession, absent a stipulation by the State that the issue is dispositive of the case. Brown v. State, 376 So.2d 382, 385 (Fla.1979); Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983). Here the State at sentencing commented that it did not care if Appellant appealed, concurring with the trial court’s statement that it was not sure that the issue was dispositive and noting that Appellant could “reserve his rights to appeal whatever matters the law allows him to appeal.” We do not consider this a stipulation. Because the State did not stipulate that Appellant’s confession was dispositive, we need not reach the merits of this issue.

As to the second issue, the admissibility of child hearsay statements, we find that the record on appeal contains overwhelming evidence that the State could have proceeded to trial, regardless of whether Appellant successfully argued on appeal that the child hearsay statements were inadmissible. See Williams v. State, — So.3d -, 2012 WL 1109129 (Fla. 1st DCA April 4, 2012) (“An issue is disposi-tive only when it is clear that there will be no trial, regardless of the outcome of the appeal.”) Here, there was testimony from the child victim and an eyewitness who walked in and saw Appellant and the child victim engaged in sexual conduct. Accordingly, we affirm Appellant’s judgment and sentence.

AFFIRMED.

BENTON, C.J., concurs in the judgment with opinion; SWANSON, J., dissents with opinion.

BENTON, C.J.,

concurring in the judgment.

It is important that the defendant understand what the consequences of his or her plea are, including what can and cannot be reviewed on direct appeal, at the time the plea is entered. As we recently explained in Williams v. State, — So.3d -, 2012 WL 1109129 (Fla. 1st DCA Apr. 4, 2012), following supreme court precedent on the point, see Brown v. State, 876 So.2d 382, 384 (Fla.1979) and State v. Ashby, 245 So.2d 225, 228 (Fla.1971):

A defendant who pleads no contest may expressly reserve the right to appeal a prior dispositive order of the lower tribunal. Fla. R.App. P. 9.140(b)(2)(A)(i). An issue is dispositive only when it is clear that there will be no trial, regardless of the outcome of the appeal. Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999).

Williams, — So.3d at -. See also Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986) (“[W]e cannot reach that issue because the trial court’s rulings are not dispositive.”). Whether a ruling is dispositive is a question for the trial court, and not for us, in the first instance, because it is imperative that the defendant’s plea be voluntary and intelligent.

Here, as in Williams, “the record is not inconsistent with the view that appellant’s plea was induced by assurances that [certain] issues would be addressed on direct appeal.” — So.3d at -. (Benton, C.J., concurring). Here, as in Williams, however, no relief is available on the present appeal from a conviction predicated on a plea that was not intelligent, in the absence of a motion to withdraw the plea in the trial court. See Leonard v. State, 760 So.2d 114, 119 (Fla.2000) (“A summary disposition ... will advance the interests of judicial economy and fulfill the purposes of the Criminal Appeals Reform Act by efficiently disposing of appeals where the defendant pleaded ... nolo contendere and the appeal ... does not present ... a legally dispositive issue that was expressly reserved for appellate review pursuant to section 924.051(4).”). Possibly without counsel, appellant is left to avail himself of “Florida Rule of Criminal Procedure 3.850 [which] contemplates collateral relief from convictions predicated on pleas that are not voluntary and intelligent. Fla. R.Crim. P. 3.850(a)(1) and (5).” Williams, — So.3d at - (Benton, C.J., concurring).

SWANSON, J.,

dissenting.

I respectfully dissent.

In this case, Appellant entered a plea of no contest and sought to preserve for appeal his motion to suppress a purported confession as well as the trial court’s ruling on the admissibility of child hearsay. When a trial court receives a plea pursuant to Florida Rule of Criminal Procedure 3.172, and the defendant seeks to reserve a question of law for appeal, it is well settled that the trial court is obligated to determine the dispositive nature of the question or questions. Everett v. State, 535 So.2d 667 (Fla. 2d DCA 1988). The majority has concluded, in essence, as a matter of judicial economy and based upon review of the entire record, to affirm. There is authority for such action. Rust v. State, 742 So.2d 471 (Fla. 2d DCA 1999).

Nonetheless, without a ruling from the trial court as to whether the above two issues were dispositive, I am of the opinion this case should be remanded to the trial court for appropriate findings.

As discussed in Judge Benton’s concurring opinion, one could reasonably conclude Appellant’s plea was induced by a belief that the trial court rulings on the confession and child hearsay issues would be addressed on appeal. Remand, as contemplated by this dissent, would result in further proceedings where the defendant had the benefit of counsel. At that point, the defendant would at least have the opportunity to further consider, with the benefit of counsel, whether to file a motion for relief from judgment. Fla. R.Crim. P. 3.850(A)(5). Given the totality of this record, I conclude the Appellant should be given that opportunity.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Ricardo Hermon GLASCO, Appellee.
    No. 5D11-851.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred in suppressing certain text messages discovered on the defendant’s cell phone by the arresting officer incident to the defendant’s arrest. The State argues that the officer had the right to look at the contents of the defendant’s cell phone as a search incident to the defendant’s lawful arrest without first obtaining a search warrant authorizing a search of the cell phone. We agree and reverse.

The facts are not in dispute. The defendant, Ricardo Glaseo, was arrested for possession of cocaine with intent to sell or deliver, possession of cannabis, and use or possession of drug paraphernalia. After Glaseo was handcuffed, the police searched his person and discovered his cell phone. Glaseo was transported to the police station, where officers conducted a further search of the cell phone while he was being processed into the jail. Text messages retrieved from the cell phone revealed that Glaseo had cocaine he intended to sell. The arresting officer had no fear that any evidence on the cell phone would be destroyed once Glaseo was handcuffed. While he did fear for his safety prior to handcuffing Glaseo, the handcuffs alleviated that fear. A search warrant was not obtained prior to the search of the cell phone.

Glaseo moved to suppress all evidence obtained as a result of the assertedly unlawful search of his cell phone, including texts, photographs, and call history. The trial court granted the motion and the State appeals.

At the time the trial court rendered its suppression order, Smallwood v. State, 61 So.Bd 448 (Fla. 1st DCA), review granted, 68 So.3d 235 (Fla.2011), had not been decided. In Smallwood, the court upheld the denial of the appellant’s motion to suppress photographs discovered on the appellant’s cell phone by the arresting officer incident to his arrest. The First District Court surveyed applicable state and federal law and concluded:

In the instant case, there is nothing in particular about the crime for which appellant was arrested nor any information about this case which would have led the officer reasonably to believe the cell phone contained evidence related to the crime for which appellant was being arrested. We are, however, constrained to affirm the denial of the motion to suppress based on article I, section 12 of the Florida Constitution, which mandates we follow United States Supreme Court precedent in the area of search and seizure. Therefore, we are bound by the Supreme Court’s decision of United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), in which the Court held containers found upon a person incident to arrest may be searched without “additional justification.” We are not unmindful, however, of the unique qualities of a cell phone which, like a computer, may contain a large amount of sensitive personal information. We, therefore, also certify a question of great public importance concerning whether the general rules announced in Robinson, 414 U.S. 218, 94 S.Ct. 467, regarding searches incident to arrest are applicable to information contained on a cell phone held on an arres-tee’s person.

Id. at 448. The court certified the following question:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

Id, at 462.

After Smallwood was released, the First District Court again faced a cell phone search issue in Fawdry v. State, 70 So.3d 626 (Fla. 1st DCA 2011). There, photographs showing the sexual performance of a child were discovered stored in the appellant’s cell phone by officers when they searched the cell phone upon his arrest on other charges. The court again upheld the denial of a motion to suppress evidence discovered on a cell phone. The court acknowledged that case law from other jurisdictions was not unanimous on this issue. Specifically, an Ohio court, State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 954-55 (2009), cert. denied, — U.S. -, 131 S.Ct. 102, 178 L.Ed.2d 242 (2010), had concluded that the search of a cell phone was more intrusive than the search of the contents of a physical container and that an individual has a greater expectation of privacy in the contents of the cell phone as a result, whereas, on the other hand, the Fifth Circuit, in United States v. Finley, 477 F.3d 250 (5th Cir.), cert. denied, 549 U.S. 1353, 127 S.Ct. 2065, 167 L.Ed.2d 790 (2007), had concluded that a cell phone is like any other container and could properly be searched incident to an arrest. Id. at 260. The First District Court aligned itself with the analysis in Finley, writing:

We are unpersuaded by Smith. Although it may be true that a digital file itself is “wholly unlike any physical object found within a closed container,” the information found within it is likely no different than information found within a printed physical copy of a digital file. Indeed, before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers. Digital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form. Viewed in this light, the cell phone merely acts as a case (i.e. closed container) containing these personal effects. When in tangible form, the aforementioned personal effects could clearly be searched incident to arrest if found in a case carried on the suspect’s person or in a vehicle which the suspect occupied. See Savoie, 422 So.2d at 313-14; see also Robinson, 414 U.S. at 235-36 [94 S.Ct. 467]. Accordingly, a search of a digital version of these personal effects would be similarly permissible. After all, it is the information itself in which a person’s privacy interests lie. See Finley, 477 F.3d at 259 (explaining that although the defendant’s employer owned the telephone, the defendant still “had a reasonable expectation of privacy in the call records and text messages on the cell phone”). Accordingly, a distinction based upon the manner in which that information is stored is unwarranted.
Fawdry further argues that, even if we analogize the cell phone to a container, the search in this ease was still unlawful because, under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), searches of containers under [New York v.] Belton [453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ] are limited to searches for evidence of the crime of arrest. We believe that this argument is misplaced. The Gant court did not recede from Belton, but rather corrected what it deemed to be an overly broad reading of that opinion by other courts. See Gant, 129 S.Ct. at 1718-19. Thus, the Gant court held that Belton does not justify the search of a vehicle where a suspect is secured and not able to reach the area of the car being searched. Id. at 1719. This limitation is not relevant in the case before us because a vehicle search did not occur. Here, Fawdry was arrested at his home, his cell phone was found on his person, and he was searched immediately following his lawful arrest.
We find that the instant case is analogous to our recent decision in Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011). We agree with the analysis in Smallwood and find that Robinson is dispositive here. As the Smallwood panel notes, Robinson permits an officer to inspect any item found on the person of a suspect. See Robinson, 414 U.S. at 236, 94 S.Ct. 467. A court is not permitted to second guess the decision to inspect such items by weighing the “probability in a particular arrest situation that weapons or evidence would in fact be found[.]” Id. at 235, 94 S.Ct. 467. A search incident to a lawful arrest is “reasonable” per se under the Fourth Amendment. Id. The Gant court did nothing to alter this rule in the context of the instant case. Accordingly, the search of Fawdry’s cell phone incident to his arrest was not a violation of the Fourth Amendment.
Because Fawdry’s motion to suppress evidence seized from his cell phone was without merit, we AFFIRM. We certify a question of great public importance similar to the question certified in Smallwood:
DOES THE HOLDING IN U.S. v. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST?

Id. at 630-31.

Pursuant to Fawdry and Smallwood, we reverse the order granting the motion to suppress and remand this case to the trial court for further proceedings. We certify to the Florida Supreme Court a question of great public importance similar to the questions certified in Fawdry and Small-wood:

DOES THE HOLDING IN UNITED STATES v. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH INFORMATION CONTAINED WITHIN A CELL PHONE THAT IS ON AN ARRES-TEE’S PERSON AT THE TIME OF A VALID ARREST?

REVERSED AND REMANDED.

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

      . The court in Gracie v. State, 92 So.3d 806, 2011 WL 6278304 (Ala.Crim.App.2011), quoted approvingly from Fawdry and acknowledged the decision in Smallwood. In Grade, the defendant was transported to the police station and placed under arrest there. The officer performed a warrantless search of the cell phone found on the defendant in an attempt to find evidence that an accomplice had participated in the crime. An incriminating text message was found on the phone, which itself was not password protected. The defendant argued that the search of his phone exceeded the scope of a permissible search incident to arrest. The court rejected that argument and affirmed the denial of the defendant’s motion to suppress. The court engaged in a survey of similar cases and specifically noted the following jurisdictions as upholding warrantless searches of cell phones upon arrest:
      In addition to California, other jurisdictions have also held that a warrantless search of a defendant's cellular telephone following the defendant's arrest did not violate Fourth Amendment principles. See United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007); United States v. Santillan, 571 F.Supp.2d 1093, 1102 (D.Ariz.2008); United States v. Deans, 549 F.Supp.2d 1085, 1093-94 (D.Minn. 2008); Fawdry v. State, 70 So.3d 626, 630 (Fla.Dist.Ct.App.2011); Smallwood v. State, 61 So.3d 448 (Fla.Dist.Ct.App.2011); Hawkins v. State, 307 Ga.App. 253, 704 S.E.2d 886, 892 (2010) (all holding that the war-rantless search of the contents of a cellular telephone was a valid search incident to arrest).
      92 So.3d at 810-11, 2011 WL 6278304 at *4; see also United States v. Hill, 2011 WL 90130 (N.D.Cal.2011) (upholding search of cell phone conducted immediately upon its discovery on arrestee's person; finding cell phone should be treated no differently than a wallet taken from a defendant's person); United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn.2008) (agreeing that "if a cell phone is lawfully seized, officers may also search any data electronically stored in the device”). It was observed in United States v. Rodriguez-Gomez, 2010 WL 5524891 (N.D.Ga.2010), that there are no Eleventh Circuit cases directly on point, but that the Eleventh Circuit has approved, as a search incident to arrest, the placement of batteries into a pager removed from the defendant’s car upon his arrest to determine if the pager would beep, citing United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222-23 (11th Cir.1993). The court in Rodriguez-Gomez proceeded to uphold, as a search incident to arrest, the removal of a cell phone from the defendant’s belt clip and subsequent perusal thereof, purportedly to locate a phone number at the defendant’s request, but which eventually yielded information pertinent to the arrest.


text:
    Torlane ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6963.
    District Court of Appeal of Florida, First District.
    June 19, 2012.
    Torlane Ross, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


author: CASANUEVA, Judge.

text:
    Adam S. KATZ, Appellant, v. Jennifer J. KATZ, Appellee.
    No. 2D10-6197.
    District Court of Appeal of Florida, Second District.
    June 20, 2012.
    Affirmed in part, reversed in part, and remanded.

      Lorena L. Kiely, Tampa, for Appellant.
    Theodore J. Rechel and Andrew Z. Tapp of Rechel & Associates, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Adam S. Katz appeals from a final judgment of dissolution of marriage, raising two issues. He claims first, that errors in the equitable distribution schedule require reversal. Second, he argues that the trial court abused its discretion in awarding bridge-the-gap and rehabilitative alimony to Jennifer J. Katz. We conclude, on this record, that the trial court’s equitable distribution does not constitute an abuse of discretion and requires no further discussion because there is substantial, competent evidence to support the trial court’s rulings. But one aspect of the rehabilitative alimony award is troubling and requires the trial court’s reconsideration.

The parties were married in 2004. Dr. Katz is a high-earning medical doctor whose private practice specializes in treatment of the lungs. Mrs. Katz is a certified and licensed nutritionist who, at the time of their marriage, was on medical disability from her hospital-based position due to a painful nerve condition. Based on Mrs. Katz’s training and experience, during the marriage the couple started a nutrition and weight management business for her to run. But the business never made a profit and accumulated large debts that Dr. Katz paid both before and after the petition for dissolution was filed. The couple, still relatively young, had no children and enjoyed a very high standard of living based on Dr. Katz’s earnings throughout their short-term marriage. It does not appear that Mrs. Katz or her business made any economic contribution to the marriage.

Dr. Katz filed for dissolution in September 2007. After that, the dissolution proceedings were acrimonious and protracted. The delays were primarily due to Mrs. Katz’s deteriorating mental and physical condition. She was twice hospitalized for emotional disturbances. The second hospitalization lasted several months, from early September 2008 to the middle of January 2009. She was under guardianship from March 2009 to the following December. At the time of the final hearing in June 2010, Mrs. Katz had not worked in her business for well over a year.

At the final hearing, Mrs. Katz testified to needing bridge-the-gap and rehabilitative alimony. She did not request permanent or durational alimony. The trial court found that Mrs. Katz had legitimate short-term needs because she was wholly dependent on Dr. Katz for her most basic living expenses and had left the marriage with no income-producing asset. The trial court noted that, most importantly, she had an immediate need for funds for health insurance, continued psychological counseling, uncovered medical, dental, and prescription drugs, as well as auto insurance. Based on this finding, the trial court awarded her two years of bridge-the-gap alimony at $5000 a month. We affirm the trial court’s award of bridge-the-gap alimony, concluding that its determination did not constitute an abuse of discretion because the record contains competent, substantial evidence to support it. However, in one respect the rehabilitative alimony award may either be an abuse of discretion or it may be a typographical error.

Mrs. Katz presented to the trial court and discussed her rationale for a very detailed five-year rehabilitation plan leading to re-establishing and expanding her private nutrition and weight management practice. She maintained that during the marriage she had suffered severe physical and psychological impairment which had led to an inability to support herself. She wanted to re-educate herself and obtain her prior professional and educational status as a dietitian. Her plan listed the various conferences she wanted to attend to secure the requisite hours of continuing education credits she needed to maintain her certification and license and the expenses she would incur in attending these courses. She estimated that this part of the plan would cost $44,788. She also listed the cost for five years of membership in the various professional associations of which she had formerly been a member and which supported her areas of specialization. This would amount, at $1556 a year, to $7780 for five years. In order to re-establish and expand a private office practice, she estimated furniture and equipment would cost $75,000. Thus, her five-year plan would cost $127,568. But all her treating physicians and psychologists and especially her vocational evaluator concurred that due to her fragile psychological condition a supervised employment setting was more suitable for her rather than being on her own in a private practice with the concomitant stress that would cause.

The trial court agreed with the medical, psychological, and vocational experts that her five-year plan for establishing herself in a private practice was not realistic. Instead, the trial court awarded her two-years of rehabilitative alimony in an aggregate amount of $27,545. This figure is comprised of $2000 for vocational counseling, $9985 for continuing education courses including registration and travel expenses, and $15,560 for licenses and memberships. It is this last figure-$15,560-that may be a typographical error. If it is not a typographical error, it is an abuse of discretion because “ ‘no reasonable [person] would take the view adopted by the trial court.’ ” See Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)); Krolick v. Monroe ex rel. Monroe, 909 So.2d 910 (Fla. 2d DCA 2005).

Mrs. Katz had requested $1556 a year for five years, i.e., $7780. In the final judgment, the trial court stated, in describing her plan, that she would need $7780 “annually” and awarded her $15,560, twice $7780 for the two-year rehabilitation period. The amount the trial court actually awarded in the final judgment equals ten years’ worth of licenses and memberships to be paid over the two-year rehabilitation period, vastly more than what Mrs. Katz had requested. Most likely, this part of the trial court’s rehabilitative alimony award derives from its earlier misstatement of what Mrs. Katz’s plan had included. The record does not support the award for two years of licenses and memberships. On remand, the trial court shall revisit the amount awarded for licenses and memberships. We find no abuse of discretion in the remaining parts of the rehabilitative alimony award.

Affirmed in part, reversed in part, and remanded for reconsideration of the award for that part of rehabilitative alimony slated for licenses and memberships.

SILBERMAN, G.J., and MORRIS, J., Concur.


text:
    Joan Marie HEADLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-153.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third District, and Roberta G. Mandel, Special Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Joan Marie Headley appeals her conviction and sentence for scheme to defraud, aggravated white collar crime, grand theft, and money laundering. On appeal, she contends that her double jeopardy rights have been violated as she was convicted of aggravated white collar crime as well as eight other offenses which are predicate offenses for aggravated white collar crime. Drawing from cases interpreting the Racketeer Influenced and Corrupt Organizations Act (RICO) and continuing criminal enterprise, we find that a defendant can be convicted of section 775.0844, Florida Statutes (2005), aggravated white collar crime, as well as the predicate offenses, without violating double jeopardy. Accordingly, we affirm Headley’s conviction and sentence.

The Case and Conviction

Headley and her co-defendant, Phillip Davis, were involved in the theft of grant money that was meant to fund the Miami-Dade Resident College (MDRC). Each was subsequently charged with one count of scheme to defraud $50,000 or more; one count of aggravated white collar crime, a violation of section 775.0844, Florida Statutes (2005); two counts of grand theft of more than $20,000 but less than $100,000; one count of grand theft of more than $300 but less than $5,000; and twenty-five counts of money laundering of more than $300 but less than $20,000. The aggravated white collar crime charges were based upon predicate acts consisting of scheming to defraud, grand theft, uttering a forged instrument, and money laundering.

The evidence presented at trial showed that MDRC received three grants from the Miami-Dade Housing Agency for payroll and operating expenses. The grant contracts stated MDRC was to be reimbursed for expenses already incurred. The contracts set forth MDRC employment positions, and these contracts were signed by Davis as the executive director of MDRC and Headley as the administrative assistant.

The employees that were paid under the grants signed contracts with a company called Workforce Management, not with MDRC. The president of Workforce testified that he set up the company at Davis’ request, Davis’ post office box was used as Workforce’s mailing address for bank correspondence, and Davis provided the name “Workforce Management” and paid its incorporation fee.

Workforce submitted invoices to the grant administrator in order to receive reimbursement for payroll that MDRC claimed Workforce had already paid. Miami-Dade Housing Agency paid MDRC $100,557.18 to compensate nineteen employees, but only $86,845.78 was in fact paid. The evidence and testimony showed that invoices listed hours not worked by employees resulting in overpayment to MDRC; listed amounts paid to employees, which were greater than what the employees received; listed hourly rates greater than those paid to employees; and listed employees no one had heard of.

MDRC also had a reimbursement grant from the State of Florida/ Department of Juvenile Justice. The grant was to fund two positions up to $50,000. Marie Boswell, the grant administrator, paid out $19,000. Davis wanted to increase the hourly rate of the employees in order to get the full $50,000 allowed by the grant. He told Boswell that he had a contract with Workforce, he owed Workforce $50,000, and Workforce might sue him.

Records also reflected that employees (including Headley), who were reported as having been paid under the Miami-Dade Housing Agency grant, were documented as also having been paid for the same hours under the State grant.

The jury found Headley guilty of one count of scheme to defraud $50,000 or more, one count of aggravated white collar crime, two counts of grand theft of more than $20,000 but less than $100,000, and five counts of money laundering. The trial court entered convictions on all counts but only entered a sentence on the aggravated white collar crime count, suspending sentence on all other counts. The court sentenced Headley to ten years state prison followed by ten years probation.

Analysis — Double Jeopardy

Headley contends that she cannot be convicted and sentenced for both aggravated white collar crime and the predicate offenses. The State argues that aggravated white collar crime is similar to the continuing criminal enterprise (CCE) statute analyzed in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), and as with CCE, section 775.0844 was enacted by the legislature to enhance punishment. The State contends that, applying the Garrett analysis, the white collar crime statute establishes a separate offense that allows for prosecution of the predicate offenses as well as for aggravated white collar crime.

The Double Jeopardy Clause prohibits multiple convictions and punishments for the same offense. U.S. Const, amend. V; Art. I, § 9, Fla. Const. Without a clear statement to show legislative intent to authorize separate punishments for multiple offenses arising from the same criminal transaction, courts generally apply the “same elements” test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see also Cruller v. State, 808 So.2d 201, 203 n. 3 (Fla.2002) (“[Cjourts only employ the Blockburger test if there is no clear statement of legislative intent to authorize separate punishments for the two crimes in question.”). In Florida, this test is codified as part of section 775.021, Florida Statutes (2005).

The White Collar Crime Victim Protection Act and the Florida RICO Act are similarly constructed, and both were enacted to allow for prosecution of the major offense as well as the predicate offenses. Both statutes establish an offense in which it is implicit that the defendant has committed a number of predicate offenses. Compare § 775.0844(3)-(4), with § 895.02. It has been previously held by Florida courts that being convicted of RICO as well as the necessarily lesser included offenses does not violate double jeopardy. See, e.g., Gross v. State, 728 So.2d 1206, 1208 (Fla. 4th DCA 1999); Haggerty v. State, 531 So.2d 364, 365 (Fla. 1st DCA 1988). The legislative intent in adopting the white collar crime statute was to “enhance sanctions imputed for nonviolent frauds and swindles, protect the public’s property, and assist in prosecuting white collar criminals.” § 775.0844(2). As with RICO, the white collar crime statute was geared toward prosecuting those individuals who engage in a pattern of committing felony offenses involving fraud and deceit. See § 775.0844(4) (defining “aggravated white collar crime”); see also Carroll v. State, 459 So.2d 368, 370 (Fla. 5th DCA 1984) (recognizing that by establishing RICO, the legislature intended to punish those who engage in a pattern of criminal activity more severely than those who only commit the predicate offenses).

Additionally, analyzing the white collar crime statute’s language and structure, as in Garrett, Headley’s double jeopardy rights were not violated as a result of being convicted of aggravated white collar crime and the predicate offenses. Garrett, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (recognizing that the legislature intended CCE to be a separate offense and to permit prosecution for predicate offenses as well as CCE, and concluding that convictions for both does not violate double jeopardy). As with CCE, the legislative intent in establishing section 775.0844 was to create a separate and distinct offense, see State v. Traylor, 77 So.3d 224, 226 (Fla. 5th DCA 2011) (recognizing that charging a defendant with aggravated white collar crime is a “distinct” new count, separate from any predicate offenses previously charged); there is no reference in the statute to a multiplier of a penalty for some other offense; the punishment set forth in the statute does not reference its predicate offenses; and the definition of aggravated white collar crime is not drafted in the way that a recidivist provision would be drafted. See Garrett, 471 U.S. at 778, 781-82, 105 S.Ct. 2407.

Conclusion

Accordingly, we hold that the trial court did not err in convicting Headley of the offense of aggravated white collar crime and the underlying predicate offenses, and we affirm the circuit court conviction and sentence.

      . Headley raised three other arguments as well. We have carefully considered these points but find them to be without merit.

      .Section 775.0844 provides:
      (3) As used in this section, "white collar crime” means:
      (a)The commission of, or a conspiracy to commit, any felony offense specified in:
      1. Chapter 560, relating to the Money Transmitters' Code.
      2. Chapter 812, relating to theft, robbery, and related crimes.
      3. Chapter 815, relating to computer-related crimes.
      4. Chapter 817, relating to fraudulent practices.
      5. Chapter 825, relating to abuse, neglect, and exploitation of elderly persons and disabled adults.
      6. Chapter 831, relating to forgery and counterfeiting.
      7. Chapter 832, relating to the issuance of worthless checks and drafts.
      8. Chapter 838, relating to bribery and misuse of public office.
      9. Chapter 839, relating to offenses by public officers and employees.
      10. Chapter 895, relating to offenses concerning racketeering and illegal debts.
      11.Chapter 896, relating to offenses related to financial transactions.
      (b) A felony offense that is committed with intent to defraud or that involves a conspiracy to defraud.
      (c) A felony offense that is committed with intent to temporarily or permanently deprive a person of his or her property or that involves a conspiracy to temporarily or permanently deprive a person of his or her property.
      (d) A felony offense that involves or results in the commission of fraud or deceit upon a person or that involves a conspiracy to commit fraud or deceit upon a person.
      (4) As used in this section, "aggravated white collar crime” means' engaging in at least two white collar crimes that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents, provided that at least one of such crimes occurred after the effective date of this act.

      . While the trial court suspended sentence as to the predicate offenses, Headley is correct in asserting that this does not cure the potential double jeopardy violation. See Butler v. State, 760 So.2d 151 (Fla. 3d DCA 1999).


author: LEVINE, J.

text:
    Barbara HANRAHAN, individually and as Personal Representative of the Estate of Dennis Hanrahan, and all survivors, Appellant, v. HOMETOWN AMERICA, LLC, Hometown America Management Corp., Hometown America Management, LP and Barbara Babcock, Appellees.
    No. 4D11-68.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      Terry E. Resk of Haile, Shaw & Pfaffen-berger, P.A., North Palm Beach, for appellant.
    Pamela A. Chamberlin of Mitrani, Ry-nor, Adamsky & Toland, P.A., Miami, and Elana B. Goodman of Mitrani, Rynor, Adamsky & Toland, P.A., Miami Beach, and Elana B. Goodman of Mitrani, Rynor, Adamsky & Toland, P.A., Weston, for ap-pellees.
   LEVINE, J.

The issue presented in this case is whether the trial court erred in determining that the landlord, a mobile home park owner, owed no duty to its tenants due to the concept of “ferae naturae.” We find that the trial court correctly determined that the landlord had no duty to guard against fire ants where the landlord had not possessed, harbored, or introduced the fire ants to the premises, and the record did not indicate that the landlord had specific knowledge of the hazards presented by fire ants to the premises. We affirm the trial court’s entry of a final order of summary judgment for the appellees.

Appellant resided at Pinelake Gardens and Estates mobile home park. Appellant’s husband, Dennis Hanrahan, took his dog for a walk one evening. He rushed back home telling his wife, Barbara, that ants were biting his face and neck. Mr. Hanrahan told his wife that he “brushed up against the bushes” and “they must have come from the bushes because they did not climb up his legs.” He attempted to wash off the fire ants, but collapsed on the shower floor. Mr. Hanrahan died two days later.

According to appellant, the only bushes that Mr. Hanrahan could have touched while walking his dog would have been in a particular common area of Pinelake, referred to as the “Preserve.” Pinelake’s community manager testified that she was not aware of any resident ever being attacked by fire ants anywhere on Pinelake’s premises. Nor was the community manager aware of any fire ant infestation at the area of Pinelake where the incident allegedly took place. An employee of the exterminator for Pinelake testified to spraying insecticide every other month in order to kill ants. The exterminator’s contract did not specifically include killing fire ants, and the employee stated that he had no knowledge of any ant activity or reason to recommend treating the area where the alleged incident took place. The exterminator confirmed that red fire ants are “wild animals,” whose natural habitat is outdoors in South Florida. The exterminator testified that permanent eradication of fire ants from a property would be “an impossibility.”

Pinelake maintenance and office staff testified that in addition to the exterminator’s insecticide treatments, the maintenance staff would treat any visible ant mounds with granules. Occasionally, while trimming bushes, several members of the maintenance staff had been bitten by ants in the past. The staff would call the exterminators if residents reported “something out of the ordinary with too many red ants or anything like that.”

The trial court granted appellees’ motion for summary judgment. The trial court found that appellees were not on notice of a fire ant infestation at the area of the alleged incident, and therefore appellees did not have a duty to appellant to guard against the red ants. As a result of the granting of the summary judgment, this appeal ensues.

This court reviews a trial court’s order granting summary judgment de novo. Coleman v. Grandma’s Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011). “[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Further, “where a defendant establishes as a matter of law, that no duty is owed to the plaintiff, the trial court may properly grant summary judgment in favor of the defendant.” Strickland v. Timco Aviation Servs., Inc., 66 So.3d 1002, 1006 (Fla. 1st DCA 2011). Accord Smith v. Grove Apartments, LLC, 976 So.2d 582, 586 (Fla. 3d DCA 2007) (explaining that summary judgment may be appropriate if the mov-ant can establish that, as a matter of law, the movant owed no duty or did not breach a duty which it owed to the other party). “As to duty, the proper inquiry for the reviewing appellate court is whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain v. Fla. Power Corp., 593 So.2d 500, 504 (Fla.1992). “[F]oreseeability as it relates to duty is a question of law.” Aircraft Logistics, Inc. v. H.E. Sutton Forwarding Co., 1 So.3d 309, 311 (Fla. 3d DCA 2009).

“Meaning ‘animals of a wild nature or disposition,’ ferae naturae is a common law doctrine tracing its origins back to the Roman empire whereby wild animals are presumed to be owned by no one specifically but by the people generally.” Nicholson v. Smith, 986 S.W.2d 54, 60 (Tex. App.1999) (footnote omitted). “[T]he doctrine is actually based upon a reality not appreciably altered by the passage of time; namely, the unpredictability and uncont-rollability of wild animals.” Belhumeur v. Zilm, 157 N.H. 233, 949 A.2d 162, 165 (2008).

Generally speaking, in Florida,

the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals Ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality.

Wamser v. City of St. Petersburg, 339 So.2d 244, 246 (Fla. 2d DCA 1976). In Wamser, the complaint alleged that Wam-ser incurred severe injuries as a result of a shark attack in the waters adjacent to a city beach. The lifeguard on duty had just received a report of a shark sighting when Wamser was attacked by a shark. In opposition to the city’s motion for summary judgment, Wamser filed an affidavit from a Marine Patrol captain, stating that he had observed sharks in close proximity to that beach. The court upheld the granting of summary judgment, finding that “there was nothing to indicate that the city had knowledge of a shark hazard.” Id. The court concluded that “[i]n the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal Ferae naturae, or to warn of such an occurrence.” Id. In the present case, like Wamser, there was no evidence in the record to indicate that appellees had knowledge of an animal “fer-ae naturae” attack in the alleged area.

We are specifically persuaded by Nicholson, 986 S.W.2d 54. In Nicholson, the plaintiffs rented a space at an RV park, where one of the plaintiffs was stung more than 1,000 times by fire ants. He subsequently died, and “there was some evidence that the fire ants were at least a contributing cause of his death.” Id. at 57. The appellate court affirmed the granting of summary judgment on behalf of the park owners, the Smiths, determining that the facts did not “support the imposition of a duty.” Id. at 62. The court stated:

Nicholson was attacked by indigenous wild animals in their natural habitat, in the normal course of their existence. The Smiths did nothing to cause the fire ants to act outside of their expected and normal behavior. Nicholson was not injured while in an artificial structure, nor was he injured where fire ants would not normally be found, nor was the presence of the fire ants due to any affirmative or negligent act of the Smiths bringing them upon the property or drawing them to the area where Nicholson was parked. In fact, Smith testified that he regularly attempted to kill or drive away the fire ants.

Id. In the present case, the presence of the fire ants was not caused by any act of appellees to bring them onto the property. Appellees did not harbor, introduce, or reduce the fire ants to possession. Further, appellees regularly attempted, by maintenance staff or exterminators, to treat ant mounds or any other manifestations of fire ants.

We also adopt from Nicholson the following caveat:

We do not say a landowner can never be negligent with regard to the indigenous wild animals found on its property. A premises owner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Id.; see also Belhumeur, 949 A.2d at 166 (agreeing with Nicholson in declining to “say that there never can be [liability in] such a case”); St. Joseph’s Hosp. v. Cowart, 891 So.2d 1039, 1041 (Fla. 2d DCA 2004) (noting that, in an appropriate case, “a landowner could owe a duty with regard to wild animals found inside an artificial structure”). In the present case, there is no evidence that appellees knew or should have known “of the unreasonable risk of harm posed by” fire ants. Nicholson, 986 S.W.2d at 62.

In summary, based on the application of the rule of “ferae naturae,” we affirm the trial court’s granting of summary judgment.

Affirmed.

POLEN and GROSS, JJ., concur.

      . The record contained the exterminator’s testimony that eradicating fire ants would be impossible. South Florida, like Texas as described in Nicholson, has a natural environment that is "not tamed.” Nicholson, 986 S.W.2d at 62. Just as in Texas, "those who seek the outdoors are exposed to its dangers” and “[a]ny number of insects and animals can hurt, or even kill you.” Id.

        . Appellant argues that section 723.022(2), Florida Statutes (2009), precluded the granting of summary judgment for appellees on the issue of duty, because it created an independent statutory duty. Section 723.022(2) requires a mobile home park owner to "maintain the common areas in a good state of appearance, safety, and cleanliness.” We find, however, that this section is not an independent source of duty in this case. Like the residential tenancy statute, as it pertains to common areas, section 83.51(2)(a)3., Florida Statutes, the mobile home park owner statute "merely restates the landlord’s common law duty as it would exist in the absence of a statute.” Haynes v. Lloyd, 533 So.2d 944, 945 (Fla. 5th DCA 1988).


text:
    STATE of Florida, Appellant, v. R.R., a child, Appellee.
    No. 4D11-2120.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals from an order suppressing marijuana in R.R.’s backpack and his statements to deputies. We affirm the order suppressing his statements, but reverse the order suppressing the marijuana.

At the suppression hearing, the following evidence was adduced from the testimony of one of the arresting deputies. Responding to an anonymous call that there was a child at a particular location who had marijuana in his backpack, two deputies proceeded to the specific location in separate cars. The caller described the child’s clothing, the backpack, and the location where the child was sitting. The caller also gave the child’s first and last name. Two deputies arrived almost simultaneously, got out of their vehicles, and approached R.R. in a “V” configuration from different directions.

R.R.’s clothing, backpack, and location “matched the description to the ‘t’ exactly where he was — where the anonymous complainant said he — he was sitting at,” according to the testimony of the deputy at the healing. The deputy described the interaction leading to discovery of marijuana as follows:

A: I kept approaching him and then I called him by name, “Hey, [R.R.’s first name].” And then he turned around.
Q: Okay. Then what happened?
A: I asked him, “Are you [R.R.’s first name]?” He goes, “I’m [R.R.’s first name] ... As I made contact with him I — first I patted him down to make sure he didn’t have any weapons. Then I asked him if he had anything illegal in the back pack. He advised he had some weed. Then after that we — He was identified by Florida ID, obviously. Inside the backpack there was a — like a Tupperware container which contained a plastic zip bag and the plastic zip bag contained seven individual smaller zip bags. They call them “dime bags.”

(emphasis added).

On cross-examination, the deputy testified that after he stopped R.R. he was not free to leave and that he had probable cause to arrest R.R. for a criminal violation of a city ordinance for being in the park after hours.

At the hearing, the State made three arguments against suppression: 1) R.R. consented to the search; 2) Miranda warnings were not required because R.R. was not in custody for Miranda purposes; and 3) the marijuana would have been inevitably discovered because officers had probable cause to make an arrest for an ordinance violation.

At the conclusion of the hearing, the trial court granted the motion to suppress, finding there was probable cause, to detain R.R., R.R. was in custody for Miranda purposes, and Miranda warnings should have been given prior to asking R.R. if he had anything illegal. The trial court concluded the failure to give Miranda warnings rendered the consent to search involuntary. When specifically asked about a ruling on the applicability of the inevitable discovery doctrine, the trial court did not explicitly address the issue in its oral pronouncement or written order. By denying the motion to suppress, the trial court implicitly determined the inevitable discovery doctrine did not apply in this case.

A trial court’s ruling on a motion to suppress is a mixed question of fact and law. Shingles v. State, 872 So.2d 434, 437 (Fla. 4th DCA 2004). Although we find no error with the trial court’s rulings concerning the suppression of R.R.’s statements, we find error with the ruling on the inevitable discovery doctrine and the suppression of the marijuana.

As we recently stated in Rowell v. State, 83 So.3d 990, 995 (Fla. 4th DCA 2012):

Under the inevitable discovery doctrine, if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the evidence will be admissible. See Nix v. Williams, 467 U.S. 431, 434, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). For the inevitable discovery doctrine to apply, the State must establish that the evidence would have been discovered “by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” Craig v. State, 510 So.2d 857, 863 (Fla.1987). Some courts also require the prosecution to show that the lawful means which made discovery inevitable were being actively pursued pri- or to the occurrence of the illegal conduct. See United States v. Virden, 488 F.3d 1317, 1322 (11th Cir.2007).

The officer testified that he had probable cause to arrest R.R. for an ordinance violation and that he would have arrested R.R. regardless of whether he consented to a search or not. The evidence supports probable cause to arrest R.R. for the ordinance violation even prior to asking him if he had anything illegal in his possession. Thus, the marijuana in his backpack would have inevitably been found in a search incident to arrest.

Affirmed in part and reversed in part.

WARNER, STEVENSON and CONNER, JJ., concur.

      . The record on appeal demonstrates the ordinance violation allows for the possible imposition of a jail sentence.


text:
    Angel LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4086.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      Carla Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant timely appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Defendant’s motion contained three claims of ineffective assistance of counsel. We affirm claims two and three without discussion and write only to address the allegations in claim one.

In claim one, Defendant argued that counsel failed to advise him of a plea offer for ten years’ imprisonment, and that he would face- a mandatory minimum of twenty years if convicted at trial. As to the second portion of this claim, we affirm the lower court’s ruling after finding that the claim is refuted by the record. Specifically, portions of the transcript reflect that counsel explained to Defendant the potential for a maximum of twenty years if convicted at trial.

As to the first part of the claim, Defendant alleged that counsel failed to communicate a plea offer of ten years’ imprisonment; that he would have accepted the plea had counsel so informed him; and that the plea would have resulted in a lesser sentence than the twenty years that were ultimately imposed. We find this claim to be sufficient under Cottle v. State, 733 So.2d 963 (Fla.1999).

The State contends that Defendant is not entitled to relief because he failed to detail when the offer was made, who made it, and who he heard it from after the trial. However, Cottle makes no such requirement. In fact, Cottle provides that these types of questions are to be determined at an evidentiary hearing. Cottle, 733 So.2d at 969, n. 6. Because the State provided no record evidence to prove that the alleged offer was not made, or alternatively, that the offer was properly conveyed, we reverse and remand this portion of the claim for an evidentiary hearing. See Dieudonne v. State, 993 So.2d 640, 641 (Fla. 4th DCA 2008).

Reversed and Remanded in part for an evidentiary on Defendant’s Cottle claim in ground one; Affirmed as to the remaining grounds.

TAYLOR, HAZOURI and GERBER, JJ., concur.


text:
    Amilcar RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1012.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Carla P. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Jose Luis DIAZ-LUENGAS a/k/a Jose Luengas, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1021.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Ira D. Karmelin, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011) (citing Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (holding Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) is not applied retroactively)).

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Antonio ARELLANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1452.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    William A. Santana of Law Offices of William A. Santana, P.A., Winter Garden, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (Padilla v. Ky., — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010) (immigration warning in Florida Rule of Criminal Procedure 3.172(c)(8) overcomes Padilla-based ineffective assistance of counsel claims).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Anthony Dennis MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1670.
    District Court of Appeal of Florida, Second District.
    June 20, 2012.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Anthony Dennis Miller appeals the revocation of his probation and subsequent imposition of a new sentence for burglary of a dwelling. He raises two issues on appeal. On the first issue, in which Mr. Miller argues that the evidence was insufficient to prove that his violation of a condition of his probation was both willful and substantial, we affirm. There was competent, substantial evidence to support the trial court’s finding that the State had proved a new law violation by the preponderance of the evidence. However, in his second issue, Mr. Miller correctly argues that the trial court erred by failing to enter a written order of revocation of probation. See Kiburis v. State, 18 So.3d 1254, 1254 (Fla. 2d DCA 2009). Consequently, we remand for entry of a proper written order. Id.

Affirmed; remanded with instructions.

WALLACE and BLACK, JJ., Concur.


text:
    Brandi MEADOWS, Appellant, v. MEDICAL OPTICS, INC., Appellee.
    No. 4D11-2842.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied July 13, 2012.

      Peter T. Maverick of Peter T. Maverick, P.A., Fort Lauderdale, for appellant.
    Stephen T. Maher and Joseph M. Gold-stein of Shutts & Bowen, LLP, Miami, for appellee.
   PER CURIAM.

Brandi Meadows (“Meadows”) appeals an Order for Temporary Injunction entered in favor of Medical Optics, Inc. (“Medical Optics”). We reverse and remand for the trial court to conduct a hearing to determine the proper amount of the bond. We affirm the injunction in all other respects.

The genesis of this appeal is an action to enforce a non-competition contract. Medical Optics, Meadows’s former employer, sought a temporary injunction against Meadows, prohibiting her from (1) working as a sales representative in any capacity in the geographical area in which she was acting for Medical Optics, (2) using Medical Optics’s proprietary information, and (3) contacting Medical Optics’s customers, clients and accounts. After an evidentiary hearing, the trial court issued a temporary injunction. The injunction, containing detailed findings of facts and conclusions of law, precluded Meadows from working in any type of employment in a sales-marketing capacity for her new employer or any other competitor in Florida or Tennessee until further order of the court (not to exceed 24 months).

Meadows argues that: (1) Medical Optics failed to prove that it had legitimate business interests; (2) an injunction was not reasonably necessary to protect such interests; and (3) Medical Optics did not demonstrate the threshold requirements of irreparable harm, inadequacy of any available remedy at law, a substantial likelihood of success, and a public interest to be served by the injunction. Finally, Meadows argues that the trial court erred by failing to take evidence before setting the bond.

This court reviews a temporary injunction under a mixed standard of review. “To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Lawnwood Med. Ctr., Inc. v. Desai, 54 So.3d 1027, 1029 (Fla. 4th DCA 2011) (quoting Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 774 (Fla. 4th DCA 2009)). But, “[a] trial court’s ruling on a motion for temporary injunction shall not be overturned unless there is a clear abuse of discretion.” Univ. Med. Clinics, Inc. v. Quality Health Plans, Inc., 51 So.3d 1191, 1195 (Fla. 4th DCA 2011) (citation omitted). Moreover, “[a] trial court’s ruling on a temporary injunction comes to the appellate court with a presumption of correctness, reversible only upon a showing of a clear abuse of discretion.” Jouvence Ctr. for Advanced Health, LLC v. Jouvence Rejuvenation Ctrs., LLC, 14 So.3d 1097, 1099 (Fla. 4th DCA 2009) (quoting First Miami Sec., Inc. v. Bell, 758 So.2d 1229, 1230 (Fla. 4th DCA 2000)). “[T]he Florida Supreme Court has cautioned restraint by reviewing courts when considering injunctions that rely on witness testimony .... [because] the order relies on live testimony or other evidence that the trial court is singularly well-suited to evaluate.” Colucci v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 437-38 (Fla. 4th DCA 2006) (citations omitted).

Having concluded that the trial court’s findings were supported by competent, substantial evidence and its legal conclusion correct, we address only whether the trial court erred by failing to take evidence to determine the appropriate amount of the bond. Offshore Marine Towing, Inc. v. Sea Tow Servs. Int’l., Inc., 778 So.2d 510, 511 (Fla. 4th DCA 2001).

Florida Rule of Civil Procedure 1.610(b) provides in pertinent part that “no temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Furthermore, both parties must be provided with the opportunity to present evidence regarding the appropriate amount of the injunction bond.

Id. at 511 (internal citations omitted). “When a court sets an injunction bond, the amount should reflect the court’s determination of the foreseeable damages for a wrongful injunction. When the court fails to do so, the remedy is generally to remand for a new bond hearing.” Advantage Digital Sys., Inc. v. Digital Imaging Servs., Inc., 870 So.2d 111, 116-17 (Fla. 2d DCA 2003) (internal citations omitted).

The trial court entered its order with a bond amount of $100,000. There was no hearing to determine the amount of the bond or whether $100,000 would suffice for the foreseeable damages in the event of a wrongful injunction. Accordingly, we direct the trial court on remand to hold an evidentiary hearing on the bond amount. Pending the evidentiary hearing, the $100,000 bond shall remain in place. See Offshore Marine Towing, Inc., 778 So.2d at 511.

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

WARNER, STEVENSON and CONNER, JJ., concur.


text:
    Bruce CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1165.
    District Court of Appeal of Florida, First District.
    June 20, 2012.
    Bruce Cunningham, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    James D. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1062.
    District Court of Appeal of Florida, First District.
    June 20, 2012.
    James D. Jackson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

VAN NORTWICK, CLARK, and RAY, JJ., concur.


author: CLARK, J.

text:
    Kimberly HILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2371.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Jeffrey E. Lewis, Regional Conflict Counsel and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Kimberly Hills challenges her convictions under section 893.13, Florida Statutes and the costs for the state attorney imposed by the trial court pursuant to section 938.27(8), Florida Statutes (2010). We affirm the convictions and reject Hills’ challenge to the constitutionality of section 893.13. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). Under the circumstances of this case, we also affirm the imposition of the $100.00 mandatory minimum costs under section 938.27(8).

Appellant entered pleas in cases numbered 2010 CF 580 and 2010 CF 3371. At the plea and sentencing hearing, defense counsel acknowledged the “cost of prosecution of $100” in her description of the plea agreement and agreed-upon sentence. Accordingly, while it is undisputed that the record contains no written or oral request by the state for the costs for the state attorney, clearly both parties were aware of the statutory mandatory minimum costs described in section 938.27(8), Florida Statutes.

The written sentences in both of Appellant’s cases contained several scrivener’s errors and Appellant raised these errors in her motions to correct sentence under rule 3.800(2)(b), Florida Rules of Criminal Procedure. She preserved her challenge to the $100 court costs via these motions, and the trial court granted all the relief requested to correct the sentences except the $100 costs for the state attorney.

Appellant seeks reversal of the $100 in state attorney costs under the language of section 938.27(1), which imposes liability upon all convicted persons for “the costs of prosecution, including investigative costs incurred by law enforcement agencies ... if requested by such agencies.” Historically, imposition of “costs of prosecution” was discretionary and therefore required a request by the state, on the record, to survive appeal. See James v. State, 662 So.2d 995 (Fla. 2d DCA 1995) (reversing costs of prosecution absent record request under predecessor section 939.01, Fla. Stat.). This requirement remained after the 2003 amendment to the statute. See Brown v. State, 963 So.2d 342 (Fla. 2d DCA 2007) (applying § 938.27(1), Fla. Stat. (2004)). Under the 2007 version of section 938.27, the state conceded error in Del Valle v. State, 26 So.3d 650 (Fla. 2d DCA 2010), where the trial court imposed prosecution costs “because the costs were not requested or announced at sentencing and no documentation was presented supporting the costs.” 26 So.3d at 651. However, the Second District Court of Appeal noted that section 938.27(1) “was amended in 2008 to no longer require such costs to be documented.” Del Valle v. State, 26 So.3d at n. 1.

The 2008 amendments to section 938.27(8) created mandatory minimum costs for the state attorney and removed the trial court’s discretion to impose these costs. The mandatory nature of the $100 “costs of the state attorney” under section 938.27(8) was recognized in Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), where the trial court’s imposition of the $100 prosecution cost was affirmed despite the court’s failure to orally pronounce it in open court. Trial courts are now required to impose the costs of prosecution and investigation “notwithstanding defendant’s present ability to pay” and required to impose the costs of prosecution “in every judgment rendered against the convicted person.” Ch. 2008-111, § 44, Laws of Fla.; § 938.27(1) & (2)(a), Fla. Stat. (2010).

Because section 938.27(8) does not pertain to “investigative costs” of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010); Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011). However, the mandatory provisions of section 938.27(8) and the other amendments restricting the trial judge’s discretion have negated any reason to require the state attorney to request the minimum costs for the state attorney. In this case, where the parties negotiated a plea and defense counsel acknowledged the mandatory costs for the state attorney in her description to the court of the bargain, the trial court did not commit error by imposing the $100 statutory minimum costs under section 938.27(8), Florida Statutes (2010) without a request from the state on the record and did not err by denying relief from these costs in Appellant’s motion to correct sentencing error under rule 3.800(2)(b), Florida Rules of Criminal Procedure.

AFFIRMED.

ROBERTS and SWANSON, JJ„ concur.


author: WETHERELL, J.

text:
    Alan W. RICE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-953.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Alan Rice appeals his conviction and sentence for aggravated battery, arguing that the trial court erred in denying his request for immunity under section 776.032, Florida Statutes (2008), which is commonly referred to as the Stand Your Ground law. We affirm on the basis of res judicata because this issue was raised in a pre-trial petition for writ of prohibition that was denied “on the merits” by this court in Rice v. State, (Fla. 1st DCA 2010), reported at 45 So.3d 466 (table).

In November 2008, Rice was involved in an altercation during which he stabbed Keith Bailey 13 times causing life-threatening injuries. Rice claimed that he acted in self-defense after being sprayed in the face with mace by Mr. Bailey’s brother. Rice testified that someone hit him after he was sprayed with mace, and the next thing he remembered was being on top of Mr. Bailey punching him. Rice testified that he did not recall stabbing Mr. Bailey.

Prior to trial, Rice moved to dismiss the charges under the Stand Your Ground law. The trial court denied the motion after an evidentiary hearing. Rice thereafter petitioned this court for a writ of prohibition, arguing that he was entitled to immunity from prosecution under the Stand Your Ground law. The petition acknowledged that “the trial court followed the procedure dictated by Peterson [u State, 983 So.2d 27 (Fla. 1st DCA 2008)],” but argued that the court “erred in its determination that [Rice] was not entitled to immunity.” After issuing an order to show cause, and considering the State’s response which argued that the trial court correctly determined that Rice is not entitled to immunity under the Stand Your Ground law, this court denied the petition “on the merits.”

The case then proceeded to trial. The testimony at trial was consistent with that presented at the hearing on Rice’s motion to dismiss, and the jury was instructed on the issue of self-defense. The jury found Rice guilty as charged, implicitly rejecting his claim of self-defense. The trial court sentenced Rice to two years of community control followed by 13 years of probation. This timely appeal followed.

The only issue raised by Rice in this appeal is whether the trial court erred in denying his request for immunity under the Stand Your Ground law. Rice acknowledges that this issue was raised in the pre-trial prohibition proceeding, but he argues that the issue is not barred by res judicata because the petition in the prior case sought an order directing the trial court to grant the motion to dismiss, rather than an order prohibiting further prosecution. Thus, according to Rice, the denial of the petition “on the merits” was merely an indication that the petition sought relief more akin to mandamus than prohibition. This argument is meritless.

First, there is no indication that this court treated the petition as anything other than what it purported to be — a “Petition for Writ of Prohibition” — and there is no question that prohibition was the appropriate relief for Rice to seek after the trial court denied his motion to dismiss based on his claim of immunity under the Stand Your Ground law. See Tsavaris v. Scruggs, 360 So.2d 745, 747 (Fla.1977) (“Where a case is pending in the criminal court against a person claiming immunity ... it would be the duty of the criminal court involved to give effect to such immunity if it existed. Should the criminal court in such a case refuse to recognize the immunity the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by prohibition.”) (quoting Buchanan v. State ex rel. Husk, 167 So.2d 38, 40 (Fla. 3d DCA 1964)). It is the nature of the relief sought, not the specific remedy requested, that determines which writ is appropriate, see Fla. R.App. P. 9.100(g)(3) (requiring an extraordinary writ petition to specify “the nature of the relief sought”), and the petition in the prior case was clearly seeking relief in the nature of prohibition, rather than mandamus. Moreover, even if the petition could somehow have been construed as seeking mandamus relief, this court was required to treat it as if it properly sought prohibition relief. See Fla. R.App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought....”).

Second, in Topps v. State, 865 So.2d 1253 (Fla.2004), the supreme court reaffirmed that res judicata bars consideration of an issue in a subsequent proceeding where the issue was raised and denied on the merits in a prior extraordinary writ proceeding. The court held that an “une-laborated order” denying an extraordinary writ petition is not a decision on the merits that will bar consideration of the issues raised in the petition in a later proceeding, id. at 1257, and explained that “[w]hen a court intends to deny an extraordinary writ petition on the merits, the court need only include in its order a simple phrase such as “with prejudice’ or ‘on the merits’ to indicate that the merits of the case have been considered and determined and that the denial is on the merits.” Id. at 1258. That is precisely what this court did in denying Rice’s petition for writ of prohibition; the opinion stated in full: “The petition for writ of prohibition is denied on the merits.” Rice, supra (emphasis added). The denial of the petition “on the merits” reflects this court’s determination that the trial court did not err in denying Rice’s claim of immunity under the Stand Your Ground law. Accordingly, res judicata bars re-litigation of the issue in this appeal.

Finally, even if the issue raised by Rice was not procedurally barred, we would affirm his conviction and sentence pursuant to Dennis v. State because, at this point, any error in the denial of the motion to dismiss is harmless. See 51 So.3d 456, 463-64 (Fla.2010) (affirming conviction despite trial court’s failure to hold a pre-trial evidentiary hearing on the defendant’s claim of immunity under the Stand Your Ground law because the defendant received a fair trial at which the jury implicitly rejected his self-defense claim that was based on the same evidence that would have been presented at the pre-trial hearing).

AFFIRMED.

THOMAS and MARSTILLER, JJ, concur.


author: THOMAS, J.

text:
    Joseph Bernard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-34.
    District Court of Appeal of Florida, First District.
    June 21, 2012.

      Nancy A. Daniels, Public Defender, Diana L. Johnson and Phil Patterson, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING AND CERTIFICATION

THOMAS, J.

This cause is before us on Appellee’s motion for rehearing and certification. We deny the motion for rehearing and certification, but write to clarify our previous opinion. Accordingly, we withdraw our former opinion of February 2, 2012, and substitute this opinion in its place.

Appellant was convicted of attempted premeditated first-degree murder, attempted felony murder, aggravated assault, aggravated battery, and possession of a firearm by a convicted felon. We find merit in one of the two issues he raises on appeal. Based on the felony merger doctrine, we reverse Appellant’s conviction for attempted felony murder.

Facts

At trial, evidence established that Appellant was involved in a verbal argument with the mother of his son when the mother’s boyfriend (the victim) approached the scene. Appellant retrieved a semi-automatic pistol, returned outside, and approached the victim. The victim ran away and Appellant pursued, firing three shots at the victim while standing in the middle of the street. Appellant continued to pursue the victim, firing four or five more shots. One bullet struck the victim in the back, going through his right shoulder, and came to rest on his spine. A police officer, stationed at the front of the apartment complex, heard three or four gunshots, a few seconds’ pause, and four or five more gunshots. Appellant fled the scene, but was later caught and arrested.

Analysis

We note that Florida courts have not always differentiated between the standard double jeopardy analysis and the principle of merger. Although both principles address the same issue of multiple punishments for the same offense, these principles are distinct. Appellant asserts that his convictions for attempted premeditated first-degree murder and attempted felony murder are a violation of double jeopardy, but cites case law which addresses the merger principle. See Smith v. State, 973 So.2d 1209, 1210-1211 (Fla. 2d DCA 2008); Jackson v. State, 868 So.2d 1290, 1291 (Fla. 4th DCA 2004). As such, we review Appellant’s convictions for a double jeopardy violation under both the standard double jeopardy analysis and the principle of merger.

I. Double Jeopardy

Under the standard three-part double jeopardy analysis, this court must first determine if the offenses occurred within the same criminal transaction or episode. Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010). To determine whether the offenses occurred in one criminal episode, a court must consider “whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” State v. Paul, 934 So.2d 1167, 1173 (Fla.2006) (quoting Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004)) (overruled on other grounds by Valdes v. State, 3 So.3d 1067 (Fla. 2009)). Here, there was only one victim; based upon trial testimony, Appellant fired eight shots in a short period of time with only a few seconds’ pause between gunshots. As such, we determine that Appellant’s convictions arose from one criminal episode.

Because the offenses occurred during the same episode, this court “must then determine if the convictions were predicated on distinct acts.” Partch, 43 So.3d at 760. To determine whether acts are “distinct,” factors to consider include whether there was: 1) a temporal break between the acts; 2) intervening acts; 3) a change in location between the acts; or 4) whether a new criminal intent was formed. Id. at 761 (citing Hayes v. State, 803 So.2d 695, 700-701 (Fla.2001)). Here, there was no intervening act between the gunshots and the conduct giving rise to the convictions occurred within the confines of an apartment complex. In addition, even viewing the evidence in the light most favorable to the jury verdict, the evidence does not establish that Appellant formed a new criminal intent to kill the same victim.

We note that the facts of this case are distinguishable from Jones v. State, 569 So.2d 1234 (Fla.1990), cited by the State. First, Jones applied the now legislatively overruled “same evil” analysis from Carawan v. State, 515 So.2d 161 (Fla.1987). Id. at 1240. Second, although the defendant in Jones fired three shots, they were directed at more than one individual and resulted in two murder convictions, as well as a conviction for shooting into an occupied motor vehicle. Id. In Jones, the Florida Supreme Court found that the conviction for shooting into the vehicle was supported by the third shot and was an “evil separate from the murders.” Id. The defendant in Jones formed the intent of not only firing into the vehicle, but also formed the intent of killing the victims inside.

Here, our analysis of the factors does not reach the same conclusion. Consequently, we do not agree with the State’s assertion that, under the limited facts of this case, each discharged bullet constituted a distinct act upon which separate convictions could rest. Moreover, we note that Jones did not implicate the merger doctrine, the basis for the reversal in this case.

The final step in the double jeopardy analysis requires this court to determine whether the charges survive a “same elements” test, as defined by section 775.021, Florida Statutes, most commonly known as the Blockburger “same elements” test. Under the Blockburger test, this court must determine whether each offense has an element that the other does not; if so, there is no double jeopardy violation. Partch, 48 So.3d at 762. The Legislature, in codifying Blockburger, provided three exceptions which prohibit multiple convictions:

1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. (2008).

In this case, Appellant’s conviction of attempted premeditated first-degree murder includes at least one element that attempted felony murder does not: a premeditated design to kill the victim. Thus, the offenses survive the Blockburger inquiry. Further, none of the statutory exceptions apply; consequently, Appellant’s convictions for attempted premeditated first-degree murder and attempted felony murder are not a violation of double jeopardy under the standard analysis.

II. Merger

This court’s double jeopardy analysis, however, does not end with Blockburger and its statutory exceptions. Appellant has cited to case law for the proposition that dual convictions for attempted premeditated first-degree murder and attempted felony murder stemming from the same attempted killing are an impermissible double jeopardy violation. See Smith, 973 So.2d at 1210-1211; Jackson, 868 So.2d at 1291. These cases analyze attempted premeditated first-degree murder and attempted felony murder under the merger doctrine, but do not conduct a standard double jeopardy analysis. The principle of merger is an exception to the standard double jeopardy analysis and, but for the merger doctrine, attempted premeditated first-degree murder and attempted felony murder would not violate double jeopardy.

The Florida Supreme Court has held that section 775.021, Florida Statutes, does not abrogate the merger principle, which prohibits multiple punishments for a single killing. See Goodwin v. State, 634 So.2d 157, 157-58 (Fla.1994) (Grimes, J. concurring) (“I believe that the Legislature could not have intended that a defendant could be convicted of two crimes of homicide for killing a single person.”); Houser v. State, 474 So.2d 1193, 1197 (Fla.1985) (noting that “only one homicide conviction and sentence may be imposed for a single death.”); Gordon v. State, 780 So.2d 17, 25 (Fla.2001) (receded from on other grounds in Valdes v. State, 3 So.3d 1067 (Fla.2009)). This principle has been extended to convictions for attempted first-degree murder and attempted felony murder from the same attempted killing. See Deangelo v. State, 863 So.2d 374 (Fla. 1st DCA 2003); Smith, 973 So.2d at 1210-1211; Jackson, 868 So.2d at 1291.

Based upon this specific fact scenario where Appellant’s pursuit of the victim constituted one criminal act or one attempted murder, we hold that although Appellant’s dual convictions for attempted premeditated first-degree murder and attempted felony murder do not violate double jeopardy under the standard double jeopardy analysis, they are impermissible under the principle of merger. We do not think that the Legislature authorized the imposition of multiple punishments for attempted premeditated first-degree murder and attempted felony murder for the same attempted killing of one victim, when there is not a separate criminal episode or distinct acts on which to base each attempted murder conviction.

Conclusion

Accordingly, we REVERSE Appellant’s conviction for attempted felony murder with directions to strike this conviction. Appellant’s remaining convictions for attempted premeditated first-degree murder, aggravated assault, aggravated battery, and possession of a firearm by a convicted felon are AFFIRMED.

AFFIRMED in part, REVERSED in part, and REMANDED with directions consistent with this opinion.

DAVIS and VAN NORTWICK, JJ., concur.

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


text:
    Allen MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1253.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Allen Moore, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. RApp. P. 9.110(b) (notice of appeal must be filed within 30 days of rendition of order to be reviewed). This dismissal is without prejudice to any right the appellant may have to seek belated review by filing a petition in this Court. See Adams v. State, 734 So.2d 1086 (Fla. 1st DCA 1999) (holding that in order to appeal a final order in a criminal case after the 30-day period for filing the notice of appeal has passed, a litigant’s sole remedy is to file with the appellate court a petition for a belated appeal).

DAVIS, WETHERELL, and SWANSON, JJ., concur.


text:
    John Antwan DANTZLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0990.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    John Antwan Dantzler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

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

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.