author: SWANSON, J.

text:
    Foster Rayfield LEON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2633.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

In this direct criminal appeal from his judgment of conviction and consecutive life sentences for attempted second-degree murder and kidnapping, appellant contends the trial court erred in allowing certain state witnesses to testify at trial on subjects appellant had earlier sought to exclude by filing three pretrial motions in limine ultimately denied by the trial court. We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. However, a trial court’s discretion is limited by the evidence code and applicable case law, and a court’s erroneous interpretation of those authorities is subject to de novo review. Pantoja v. State, 59 So.Sd 1092, 1095 (Fla.2011) (quoting McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006)). Applying these standards, we conclude the trial court correctly applied the law, with one minor exception, in denying appellant’s motions in limine and, therefore, did not abuse its discretion in admitting the testimony. As for the exception, concerning a book on taxidermy, we conclude the error was harmless beyond a reasonable doubt.

Appellant argues first that the trial court erred in allowing state witnesses to testify they never saw him again following the commission of the crimes. The state’s purpose in eliciting this testimony was to establish evidence of appellant’s flight from which the jury could infer consciousness of guilt. Appellant argues the evidence was not relevant to prove appellant committed the charged crimes. We disagree.

It is well-established that evidence of flight may be probative of guilt, but courts must carefully consider the connection between the evidence and the charged crime or crimes prior to admitting it, as recently acknowledged by the supreme court in Twilegar v. State, 42 So.3d 177 (Fla.2010):

“We agree, as an abstract rule of law, that evidence of flight, concealment, or resistance to lawful arrest after the fact of a crime is admissible as “being relevant to consciousness of guilt which may be inferred from such circumstances.” Straight v. State, 397 So.2d 903, 908 (Fla.1981). However, in applying this principle to a particular case, there must be evidence which indicates a nexus between the flight, concealment, or resistance to lawful arrest and the crime(s) for which the defendant is being tried in that specific case. This is necessary in the application of this rule of law since the evidence creates an inference of a consciousness of guilt of the crime for which the defendant is being tried in that case. See Merritt v. State, 523 So.2d 573, 574 (Fla.1988). The ultimate admissibility issue is the relevance to the charged crime.”

Id. at 196 (quoting Escobar v. State, 699 So.2d 988, 995 (Fla.1997)) (emphasis in original). The supreme court in Twilegar went on to reiterate an earlier-noted “caveat”:

[T]he cases in which flight evidence has been held inadmissible have contained particular facts which tend to detract from the probative value of such evidence. For instance, the probative value of flight evidence is weakened: 1) if the suspect was unaware at the time of the flight that he was the subject of a criminal investigation for the particular crime charged; 2) where there were not clear indications that the defendant had in fact fled; or, 3) where there was a significant time'delay from the commission of the crime to the time of flight. The interpretation to be gleaned from an act of flight should be made with a sensitivity to the facts of the particular case.

Id. (quoting Bundy v. State, 471 So.2d 9, 21 (Fla.1985)). After careful review of the record, we And none of these “caveats” applied below to “weaken” the relevance of the state’s evidence.

The state’s case established that appellant was well-known in the Riverside area of Jacksonville where he was living with his girlfriend in her apartment. This was just two blocks from the location where the victim was found in the early morning hours of July 5, 2008. Witnesses testified appellant was a frequent patron of a nearby bar, the Starlite Café, and had enjoyed an entourage of close friends for several years, including the bar’s owner, its manager, and a bartender who was married to the manager. On the evening of July 4, 2008, appellant, his girlfriend and the victim had been at the Starlite Café where the victim was working as a disc jockey. Appellant and the victim left the bar together around 12:00 a.m., after the victim decided to pack up his equipment early because business had been slow. The Starlite Café’s bar manager, Scott Bran-dle, testified to a telephone call he later received from appellant around 2:00 a.m., in which appellant repeatedly demanded to speak to his girlfriend, who was still at the bar. Brandle testified appellant sounded so alarmingly “labored” and out of breath he was concerned that something had happened to him. His concern was further aroused when he observed the girlfriend’s reaction to the conversation. Brandle recalled she did not speak during the conversation and her face went “blank,” as though “the blood drains out of your face.” Afterwards, she simply put the phone on the bar and “took off.”

Another witness, Maurice Dickerson, testified appellant pulled him outside the bar earlier in the evening to express anger over a crude comment the victim allegedly had made to appellant’s girlfriend. Dickerson described appellant as “livid,” and testified appellant stated he had “killed for less stuff than this.” Appellant advised Dickerson to warn the victim “he better not walk near me because if he does ... I’m afraid of what I’m going to do to him.” Dickerson never passed this warning on to the victim.

These and other witnesses testified appellant was the last person the victim was seen with before he was discovered around 2:30 a.m., beaten, blinded, and lying in a pool of his own blood in the middle of a road less than four-tenths of a mile from the Starlite Café. Afterward, witnesses testified that neither appellant nor his girlfriend was seen in the Riverside area again. Efforts by law enforcement to locate appellant’s girlfriend on July 18, 2008, revealed she had moved from her apartment. On August 14, 2008, appellant was apprehended in New Orleans.

We conclude this evidence provided a clear nexus between appellant’s flight and the charged crimes. After hearing the testimony of the state’s witnesses, the jury reasonably could have inferred that appellant was aware of the crimes which had been committed and fled Jacksonville shortly, if not immediately, after their commission. Appellant has failed to demonstrate the relevance of his flight was weakened by any of the considerations enumerated in Twilegar. Instead, the state presented ample evidence to show the reason for appellant’s flight to New Orleans “was to avoid being held accountable for the crime[s] at issue.” Ford v. State, 801 So.2d 318, 320-21 (Fla. 1st DCA 2001) (citing Thomas v. State, 748 So.2d 970, 982 (Fla.1999), and Escobar, 699 So.2d at 995). Thus, as did the supreme court in Twilegar, we hold the trial court did not abuse its discretion in admitting the evidence of appellant’s flight following the crimes, “for the court reasonably may have concluded that the probative value of the evidence was not substantially outweighed by the danger of prejudicing or misleading the jury.” 42 So.3d at 197.

Appellant also argues the trial court erred in allowing Alexander Ahlf, appellant’s cellmate at the county jail, to testify to certain statements appellant made to Ahlf, contending the statements were irrelevant or, if relevant, were so prejudicial that they presented a danger of prejudicing, confusing or misleading the jury. As a rule, “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2008). “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2008). A trial court “ ‘has broad discretion in determining the relevance of evidence.’ ” Bartlett v. State, 993 So.2d 157, 163 (Fla. 1st DCA 2008) (quoting Slocum v. State, 757 So.2d 1246, 1250 (Fla. 4th DCA 2000)). Nonetheless, a trial court should exclude even relevant evidence if the probative value of the proffered evidence “is substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury[.]” § 90.403, Fla. Stat. (2008). See also Joyner v. State, 4 So.3d 76, 78 (Fla. 1st DCA 2009) (quoting Bartlett, 993 So.2d at 165). Here, we find the trial court did not abuse its discretion in allowing Ahlfs testimony, and properly applied the balancing test contained in section 90.403. While not in the strictest sense a “confession,” appellant’s comments to Ahlf manifested a strong indication of his connection to the crimes. The trial court correctly concluded they were relevant for submission to the jury, subject to the weight the jury would accord them.

The trial court’s decision to allow Ahlf to testify about the book on taxidermy in appellant’s possession in the jail cell is a different matter. Ahlfs testimony regarding material contained on pages that had been “dog-eared” bore no probative value, and the trial court abused its discretion in admitting it. Nevertheless, after applying the harmless error analysis of State v. DiGuilio, 491 So.2d 1129 (Fla.1986), we are persuaded the state has demonstrated this error was harmless beyond a reasonable doubt. While touched upon during Ahlfs testimony and in the prosecutor’s closing argument, the subject of the book never became a feature of the trial, which focused, instead, on the strength of the testimony of the victim and of witnesses closest to appellant on the night and in the early morning hours of July 4 and 5, 2008. Our review of the entire record convinces us “that there is no reasonable possibility that the error contributed to [appellant’s] conviction.” Id. at 1135.

Likewise, we reject appellant’s final contention that the trial court erred in allowing certain testimony from Teehan-Kristin Kaye. Kaye worked as the bartender at the Starlite Café on July 4, 2008, was Brandle’s wife, and was also counted amongst appellant’s friends. She testified to a conversation she had with appellant when he called her at home sometime after 2:00 a.m., on July 5. Kaye described the call as a “rush of information” from appellant that did not make sense, and in which he asked whether he needed to “take care” of anything for either the owner of the bar or her husband. Appellant argues Kaye’s testimony on this point was irrelevant and speculative. We disagree. Kaye’s narrative of the conversation was consistent with Brandle’s testimony in describing appellant’s agitation and sense of urgency within the time frame of the commission of the crimes. Her testimony was also relevant to establish a nexus between appellant’s flight and the crimes. As with Ahlf s testimony, the trial court properly concluded appellant’s objection to Kaye’s testimony went to the weight the jury should accord it, and not to its admissibility. Accordingly, we find the trial court did not abuse its discretion in admitting her testimony on this subject.

Based on the foregoing discussion, we hold appellant has failed to demonstrate any cause for reversal. Accordingly, his judgment of conviction and sentences are hereby AFFIRMED.

HAWKES and CLARK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Karen AGUILAR, Appellant, v. KOHL’S DEPARTMENT STORES, INC. and Sedgwick CMS, Appellees.
    No. 1D11-0767.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Courtney Collins Bahe of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Baña-das, Eskalyo & Dunbrack, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges a ruling of the Judge of Compensation Claims (JCC) denying her claim for entitlement to prevailing party costs under section 440.34(3), Florida Statutes (2007). For the reasons that follow, we reverse the ruling on costs, and remand for further proceedings.

The claims before the JCC for adjudication included authorization of psychiatric care with Dr. Walker, payment for Dr. Walker’s past care, temporary indemnity benefits, penalties and interest on late payment of indemnity benefits, attorney’s fees, and costs. In the final order, the JCC denied authorization of care with Dr. Walker and payment of past medical bills of Dr. Walker, but awarded temporary partial disability (TPD) benefits and attorney’s fees for obtaining TPD benefits. The JCC also denied costs, finding “neither party was a prevailing party.” The JCC erred for two reasons.

First, the JCC’s order is inconsistent. The JCC awarded attorney fees based on a finding that Claimant prevailed on the claim for TPD benefits, contradicting her later finding that neither party prevailed. The award of costs to a prevailing party is mandatory under section 440.84(3). See Punsky v. Clay County Bd. of County Comm’rs, 60 So.3d 1088, 1093 (Fla. 1st DCA 2011) (holding prevailing party costs are mandatory). Thus, remand is required. See Mitchell v. XO Comm’ns, 3 So.3d 1278 (Fla. 1st DCA 2009) (remanding because findings in order are so conflicting and inconsistent as to make meaningful appellate review impossible).

Second, the JCC’s order is premature. To determine which party prevailed, more specific evidence is needed than was available here. To that end, the parties should be permitted to present evidence, via motions as described in Florida Administrative Code Rule 60Q-6.124(3), of the specific costs incurred and both their reasonableness and their relevance to all claims presented, including those resolved in Claimant’s favor pretrial — because such a resolution constitutes a “successful prosecution” of the claims. See Mitchell v. Sunshine Cos., 850 So.2d 632 (Fla. 1st DCA 2003) (holding E/C’s pretrial concession of benefits requested in PFB justifies fee award). Without this evidence, a JCC’s mere observation of the issues brought to final hearing can be a poor measure by which to determine the “prevailing party.”

We acknowledge, also, that the JCC is not limited to finding that only one party (or neither party) prevailed. The unique nature of workers’ compensation proceedings, wherein a sequence of (often non-competing) claims and defenses is normally consolidated into a single hearing, creates the potential for a party to be both prevailing and nonprevailing, relative to different claims in the same proceeding. Moreover, the different types of workers’ compensation benefits resist comparison and distillation to determine an overall victor — for example, some awards consist of medical care, the value of which is not solely monetary but is found in a non-quantifiable improvement in quality of life. Section 440.34(3) contemplates this peculiar complexity of workers’ compensation litigation and provides that costs will be taxed against the nonprevailing party “[i]f any party should prevail in any proceedings” before a JCC, language which is more expansive than prevailing party statutes found elsewhere in Florida law. Cf. § 713.29, Fla. Stat. (2007) (“In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration.... ”).

This conclusion is in contrast to analyses of “prevailing party” for fee purposes in civil matters, which suggest there can be no more than one prevailing party in any given suit. Cf. Trytek v. Gale Indus., Inc., 3 So.3d 1194, 1203-04 (Fla.2009) (permitting a finding that neither party prevailed for purposes of determining entitlement to attorney’s fees, payment of which is mandatory). This conclusion is similar, however, to civil cases permitting both parties to recover costs where one prevails on its claim and the other on a counterclaim. See, e.g., Spicuglia v. Green, 302 So.2d 772 (Fla. 2d DCA 1974), cert. denied 315 So.2d 193 (Fla.1975). Drawing this distinction between types of “prevailing parties” makes sense, because the rationale for limiting a determination of “prevailing party” to one (or neither) party for purposes of fee determinations — that fees are awarded for punitive purposes — does not apply to a determination of prevailing parties for purposes of cost awards, which are not punitive but restorative. See Morris v. Dollar Tree Store, 869 So.2d 704, 707 (Fla. 1st DCA 2004) (‘We cannot conceive it to be the legislative intent that an injured worker who successfully prosecutes a claim against his or her employer should not be made whole for all costs necessary to maintain the claim.”). Further, a rule that prohibits a party from recovering the full measure of his costs on the claims and date of accident upon which he fully prevailed would provide a disincentive to the administrative consolidation of cases for convenience, encouraging the development of an arbitrarily burdensome system for dispute resolution, contrary to the express legislative intent contained in section 440.015, Florida Statutes (2007), providing “an efficient and self-executing system must be created which is not an economic or administrative burden.”

We therefore REVERSE the ruling denying costs, and REMAND for further proceedings.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Jonathan L. GUERRERO, Former Husband, Appellant, v. Brenda L. GUERRERO, Former Wife, Appellee.
    No. 1D11-3210.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Charles E. Willmott of Charles E. Will-mott, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 5, 2011, the Court has determined that it lacks jurisdiction to review the order on appeal. Accordingly, the appeal is dismissed. The appellant’s Motion to Temporarily Abate Proceedings for Trial Court to Render Final Order, filed on July 11, 2011, is denied.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Charles H. RYAN and Lisa Michelle Ryan, Appellants, v. John M. CRUMP, M.D., Appellee.
    No. 1D11-3048.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Clive N. Morgan, Jacksonville, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that the January 10, 2011, Order on Motion to Dismiss is not a final order. See Dedge v. Crosby, 914 So.2d 1055 (Fla. 1st DCA 2005). Accordingly, the appeal is dismissed for lack of jurisdiction.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Rocky M. THOMAS, Appellant, v. STATE of Florida, and Edwin G. Buss, Secretary, Department of Corrections, Appellees.
    No. 1D11-2919.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Rocky M. Thomas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Because the appellant’s notice of appeal was filed more than 30 days after rendition of the order on appeal, the appeal is hereby dismissed as untimely. See Fla. R.App. P. 9.110(b); Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003). The dismissal is without prejudice to the appellant’s right to seek reinstatement of case number 1D11-2669.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Corey THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2832.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Corey Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on May 27, 2010, in Duval County Circuit Court case number 16-2010-CF-001595-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If appellant qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him in the belated appeal authorized by this opinion.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    ORANGE COUNTY and Alternative Service Concepts, Appellants, v. David RICHARDS, Staff-Rite Enterprise, LLC f/k/a All Access Enterprise, Inc. d/b/a Total Access Staffing, Inc., Howard Leasing, Providence, Property & Casualty, Appellee.
    No. 1D11-2575.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Karen J. Cullen of Broussard & Cullen, P.A., Orlando, for Appellants.
    Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, for Appellee.
   PER CURIAM.

Upon review of Appellants’ timely response to this Court’s show cause order, the Court hereby DISMISSES this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(1)(C). See also, e.g., Landry v. AMS Staff Leasing, 993 So.2d 1071 (Fla. 1st DCA 2008); Sun Sentinel & Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    DEPARTMENT OF REVENUE and Anna M. Hill, Appellants, v. John C. YOUNG, Appellee.
    No. 1D11-311.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellants.
    John C. Young, pro se, Appellee.
   PER CURIAM.

In this appeal from a proceeding to enforce an administrative support order, the Department of Revenue claims the circuit court erred in entering a superseding order prospectively eliminating appellee’s child support obligation in the absence of any pleadings requesting a superseding order on child support. We agree and reverse.

“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003). The circuit court could not enter a superseding order prospectively eliminating appellee’s child support obligation where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties. See State, Dep’t of Revenue ex rel. Arnold v. Collins, 727 So.2d 1099, 1100 (Fla. 2d DCA 1999); Moody v. Moody, 721 So.2d 731, 734 (Fla. 1st DCA 1998); Hammond v. Hammond, 492 So.2d 837, 838 (Fla. 5th DCA 1986); Lourcey v. Lourcey, 256 So.2d 25, 26 (Fla. 1st DCA 1971).

Although the circuit court found it inequitable to enforce the administrative support order based on a new child support determination, there is no authority for the circuit court to revisit child support calculations in an enforcement proceeding pursuant to section 409.2563(10)(b), Florida Statutes. Accordingly, we reverse the superseding order and remand the case for the entry of an order enforcing the administrative support order. This is without prejudice to appellee seeking administrative modification of the order pursuant to section 409.2563(12), Florida Statutes, or seeking a superseding order by filing a civil action in circuit court to determine parental support obligations pursuant to section 409.2563(2)(d), Florida Statutes.

REVERSED and REMANDED.

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    FLORIDA DEPARTMENT OF REVENUE and Bobbie S. Weaver, Appellants, v. Gerald T. FREDEKING, Appellee.
    No. 1D11-112.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellants.
    Gerald T. Fredeking, pro se, Appellee.
   PER CURIAM.

In this appeal from a proceeding to enforce an administrative support order, the Department of Revenue claims the circuit court erred in entering a superseding order prospectively reducing appellee’s child support obligation in the absence of any pleadings requesting a superseding order on child support. We agree and reverse.

“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003). The circuit court could not enter a superseding order prospectively reducing appellee’s child support obligation where such an issue was not presented by the pleadings, noticed for hearing, or litigated by the parties. See State, Dep’t of Revenue ex rel. Arnold v. Collins, 727 So.2d 1099, 1100 (Fla. 2d DCA 1999); Moody v. Moody, 721 So.2d 731, 734 (Fla. 1st DCA 1998); Hammond v. Hammond, 492 So.2d 837, 838 (Fla. 5th DCA 1986); Lourcey v. Lourcey, 256 So.2d 25, 26 (Fla. 1st DCA 1971).

Although the circuit court found it inequitable to enforce the administrative support order based on a new child support determination, appellee did not object to the enforcement of the order, and there is no authority for the circuit court to revisit child support calculations in an enforcement proceeding pursuant to section 409.2563(10)(b), Florida Statutes. Accordingly, we reverse the superseding order and remand the case for the entry of an order enforcing the administrative support order. This is without prejudice to appel-lee seeking administrative modification of the order pursuant to section 409.2563(12), Florida Statutes, or seeking a superseding order by filing a civil action in circuit court to determine parental support obligations pursuant to section 409.2563(2)(d), Florida Statutes.

REVERSED and REMANDED.

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Derk L. ALLABEN, Appellant, v. James T. KEENAN and The Law Office of James T. Keenan, P.A., Appellees.
    No. 1D10-5689.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Derk L. Allaben, pro se, Appellant.
    John A. Carlisle and Rutledge R. Liles of Liles, Gavin, Costantino, George & Dearing, P.A., Jacksonville, for Appellees.
   PER CURIAM.

The trial court erred as a matter of law by dismissing appellant’s amended complaint, because the four corners of the complaint do not show that appellee’s allegedly defamatory statement about appellant to Ms. Allaben had some connection to matters that were the subject of Ms. Alla-ben’s dissolution proceeding.

REVERSED and REMANDED.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    BRANCH BANKING AND TRUST COMPANY, a foreign corporation Appellant, v. Richard R. BLOOM, Sr., and Mary V. Bloom, his wife, Appellees.
    No. 1D10-4774.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Edward L. Kelly, Jacksonville and Sally Ann Brown of Rogers Towers, P.A., Jacksonville, for Appellant.
    Rudolph J. Inman, Jr., Jacksonville, for Appellees.
   PER CURIAM.

The appellees concede that the trial court erroneously calculated the offset due to the appellant by figuring 2% of the Construction Contract, when the correct offset was 2% of the loan amount. Therefore, the appellant is entitled to an offset in the amount of $17,175.00, as it claims. We remand to the trial court for entry of a revised final judgment reflecting the correct amount of offset. As to the other issues the appellant has raised, we affirm.

Affirmed in part, reversed in part and remanded.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: WOLF, J.

text:
    Ryan James BREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3893.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, Miami, for Appellee.
   WOLF, J.

Appellant challenges his conviction and sentence for burglary of a dwelling with assault or battery. We find the trial court erred in denying appellant’s motion for judgment of acquittal. The evidence established appellant entered the apartment he shared with his girlfriend, he was paying at least half of the bills and expenses for the apartment, and his belongings were still in the apartment. There was no evidence presented that appellant had abandoned the apartment. Witnesses testified appellant intended to move out in the future, but he had not yet done so. See Whetstone v. State, 778 So.2d 338, 342 (Fla. 1st DCA 2000) (“ ‘[PJroof of abandonment of leased premises requires that there must be ‘an intent to abandon and conduct by which the intention is carried into effect, or such a relinquishment by the tenant as will justify an immediate resumption of possession by the landlord.’ ”) (quoting Bobo v. Vanguard Bank & Trust Co., Inc., 512 So.2d 246, 247 (Fla. 1st DCA 1987)).

Furthermore, there was no evidence presented that appellant’s girlfriend revoked her consent to him living in the apartment. To the contrary, a witness testified she called appellant on the night of the incident and asked him to continue living there. See D.R. v. State, 734 So.2d 455, 459-60 (Fla. 1st DCA 1999) (finding insufficient evidence of burglary where “[njothing in the record suggests that consent to enter, once given to [the defendant], was ever withdrawn expressly or by implication and communicated to him”). Therefore, we reverse and remand with instructions that appellant be discharged.

REVERSED AND REMANDED, with instructions.

DAVIS and MARSTILLER, JJ, concur.


text:
    Edward FIPPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2421.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction and sentence for burglary of a dwelling. We find the trial court erred in denying appellant’s motion for judgment of acquittal. The State failed to provide sufficient evidence identifying appellant as the second perpetrator of the burglary. Therefore, we reverse and remand with instructions that appellant be discharged.

REVERSED AND REMANDED, with instructions.

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


text:
    Aaron HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1867.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    C. Richard Parker, Public Defender, Gainesville; Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Samuel A. Per-rone, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the first two issues raised by Appellant without comment, and based on the State’s concession of error on the third issue, we remand for resentencing to reflect the dismissal of the aggravated battery charge.

AFFIRMED in part; REVERSED in part; and REMANDED.

PADOVANO, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Calvin L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0768.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal from his conviction for sale of a controlled substance. We find the first issue disposi-tive and reverse.

At trial, a confidential informant (“Cl”) identified Appellant as the man who sold him crack cocaine during a controlled buy. The informant testified he had known Appellant for approximately four years and had done some remodeling work on a house Appellant owned. Three law enforcement officers, who were not present during the controlled buy, also identified Appellant as the man in the video recording of the transaction selling crack to the Cl. One officer testified that he has been with the Perry Police Department for twenty-five years and has known Appellant “pretty much my whole law enforcement career.” Another officer, who served on the local drug task force, testified he knew Appellant from a 2005 investigation. The third officer identified Appellant based on having often seen him wear a camouflage jacket and skull cap similar to those worn by the man in the video.

Appellant argues that the trial court erred in admitting the officers’ identification testimony because their statements suggested prior criminal activity by Appellant. We agree, and the State concedes error. See Edwards v. State, 583 So.2d 740, 741 (Fla. 1st DCA 1991) (finding such testimony inadmissible). See also Alcantar v. State, 987 So.2d 822, 825 (Fla. 2d DCA 2008) (where officer’s prior contact with appellant “for years” and knowledge of appellant’s “street name” combined to suggest strongly that appellant’s prior contact with the officer was the result of prior criminal activity, “[t]he probative value of this testimony was far outweighed by the undue prejudice it was sure to create”).

The trial court instructed the jury to disregard the second officer’s testimony about having known Appellant from a previous investigation. But we cannot say beyond a reasonable doubt that the remaining inadmissible testimony did not contribute to the guilty verdict when the only other identification came from the Cl. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). We therefore reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    William C. NAFTEL, II, and William Jessee Naftel, Appellants, v. Angela PAPPAS, As Guardian for Dorothy Hightower, Petitioner, and John T. Marshall, Personal Representative, Appellees.
    No. 1D11-0556.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Matthew W. Burns, Destín, for Appellants.
    No appearance for Appellees.
   PER CURIAM.

This appeal must be dismissed for lack of jurisdiction. The notice of appeal filed on January 31, 2011, is untimely as to the “Order Appointing Personal Representative; Order Waiving Bond of Personal Representative; and Order Admitting Will to Probate,” filed below on November 23, 2010. Fla. R. App. P. 9.110(b). Further, the subsequently issued “Letters of Administration” is not an appealable order that finally determines a right or obligation of an interested party. See § 731.201(24), Fla. Stat. (2010). Cf. Fla. R. App. P. 9.110(a)(2).

The proceedings below were initiated by a “Petition to Admit Will of Decedent; Petition for Formal Administration; and Petition to Waive Bond of Personal Representative,” filed by the appellee, Angela C. Pappas, as guardian of the decedent’s spouse, on November 23, 2010. The trial court granted the petition in an order rendered the same day. The order noted that the issuance of Letters of Administration was conditioned upon compliance with Florida Probate Rule 5.235(a). However, despite lacking full compliance with the rule, the order went beyond appointing the person entitled and qualified to be personal representative, see Fla. Prob. R. 5.235(a)(1), and appointed John T. Marshall as personal representative of the estate. “The duties and powers of a personal representative commence upon appointment.” § 733.601, Fla. Stat. (2010). Therefore, the time to appeal the appointment ran from rendition of the order appointing the personal representative and not the date the letters issued. See generally Garcia v. Morrow, 954 So.2d 656 (Fla. 3d DCA 2007) (reversing order, entered without an evidentiary hearing, that appointed a personal representative).

The appellants argue the Letters of Administration constitutes an appealable order because it effectively disposed of their objections to the appointment and their petition for appointment as personal representative. McCormick v. McCormick, 991 So.2d 437 (Fla. 1st DCA 2008); Werner v. Estate of McCloskey, 943 So.2d 1007 (Fla. 1st DCA 2006). While the trial court did not hold a hearing on the objections or counter-petition, the appellants contend that the issuance of letters necessarily terminated their right to challenge the appointment and denied their petition. § 733.2123, Fla. Stat. (2010). However, the appellants’ reliance on section 733.2123, Florida Statutes, is misplaced. The limitation imposed by this section may be invoked by a petitioner who has served formal notice of the petition for administration. Compare Fla. Prob. R. 5.201, with Fla. Prob. R. 5.240. The limitation does not apply to the appellants in this case because they were not served with formal notice. Therefore, issuance of letters did not necessarily dispose of the appellants’ objections and petition. Consequently, it is unnecessary at this time to determine whether Letters of Administration may constitute a final order disposing of pending matters where the Letters does not address those matters. Because there has been no order on the appellants’ objections or counter-petition, which remain pending, this appeal is premature. Fla. R. App. P. 9.110(i); see also McCormick, 991 So.2d at 439 (Fla. 1st DCA 2008) (reversing order that erroneously failed to appoint the duly nominated personal representative although a different personal representative had previously been appointed).

The appellants’ motion, served on July 1, 2011, seeking leave to schedule a hearing in the circuit court and seeking a third extension of time, is denied. See Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995).

The appeal is hereby DISMISSED, without prejudice to the appellants’ right to bring a timely appeal once a final order on their objections and counter-petition has been rendered.

HAWKES, CLARK, and SWANSON, JJ., concur.


author: CONNER, J.

text:
    Raymond COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2615.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Rehearing Denied Sept. 23, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Raymond Coleman appeals his conviction for resisting an officer with violence, claiming the trial court abused its discretion in denying his motion in limine to preclude allegedly prejudicial statements he made at a hospital subsequent to his arrest. We affirm, finding the trial court committed no error.

On August 29, 2007, five law enforcement officers conducted a traffic stop on Coleman’s vehicle. A random vehicle tag check revealed the registration information associated with the tag did not match the vehicle. After a short chase, Coleman stopped his vehicle. All the officers exited their vehicles and at least three drew their guns. The officers ordered both Coleman and a passenger to exit the vehicle. The passenger complied, but Coleman refused. One of the officers opened the driver’s side door and ordered Coleman to get out and put his hands up. Coleman was cursing at the officers to leave him alone, and he did not comply with their commands. Coleman resisted the officers’ attempts to forcibly remove him from the car and began to fight the officers. He continued to fight until tased, whereupon Coleman fell to the ground and an officer was able to handcuff him. At that point, Coleman was no longer being physically combative, but he continued to be verbally assaultive. Coleman was taken to a hospital to have the taser probes removed. While at the hospital, Coleman made additional threats, as testified by Deputy Hickox:

He said as soon as he gets out he is going to kill myself and my family, and that he was going to find out where we lived, kill us. He made threats to Special Agent Roadruck and other law enforcement.
And he also said that when he got out he was going to hide in the bushes and shoot and kill a police officer as they drove by in their car.

Agent Roadruck testified similarly:

As I said, [threats] continued from the time that we placed handcuffs on him, to the time we eventually placed him in jail. At the hospital he made numerous threats to us again, to other law enforcement officers.
You know, he said as soon as he gets bailed out he is going to make law enforcement officers pay for what had happened, meaning the taser, and, you know, again threatened, you know, to go kill us, kill our family.

Coleman also told Agent Roadruck that “he hates white people.”

Coleman was charged with resisting an officer with violence and with two counts of battery on a law enforcement officer. Coleman’s counsel made a motion in limine seeking to exclude the statements Coleman made after he was arrested and placed in handcuffs under section 90.403, Florida Statutes (1976). He argued the statements were not relevant because they were not probative, occurred after the fact, and were highly prejudicial. The State countered that the statements were relevant to Coleman’s mental state when he was committing the charged offenses, because they go to his intent at the time of the incident. When the trial court inquired how Coleman’s statement that “he hates white people” was relevant, the prosecutor responded that Coleman engaged in an altercation with four white or Latino officers, so the statement was very probative as to the intent element of this case. The trial court granted in part and denied in part Coleman’s motion in limine, excluding some statements but allowing those set forth above. Coleman was convicted of resisting an officer with violence and acquitted on the battery on law enforcement officer charges.

“We review the trial court’s denial of the motion in limine for an abuse of discretion.” Mackey v. State, 55 So.3d 606, 609 (Fla. 4th DCA 2011). Further, “[wjhere a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion.” Johnson v. State, 40 So.3d 883, 886 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted).

The crimes with which Coleman was charged are specific-intent crimes, requiring the State to prove Coleman intended to touch or strike the officers or to knowingly resist them. The State was also required to prove Coleman knew the persons he struck and resisted were in fact law enforcement officers. However, Coleman argues the threats were too remote to be probative because they took place well over an hour after Mr. Coleman had been handcuffed. It is not entirely clear whether the statement “he hates white people” was made at the hospital or at the scene of his arrest. Even if all of the statements were made at the hospital, they were probative to reveal to the jury Coleman’s intent to harm law enforcement officers.

Coleman relies on Lavin v. State, 754 So.2d 784 (Fla. 3d DCA 2000) and Singer v. State, 647 So.2d 1021 (Fla. 4th DCA 1994), both of which involve threats against law enforcement officers that were held irrelevant and inadmissible. We find both cases distinguishable. In Lavin, the defendant was not charged with crimes against a law enforcement officer. In Singer, the defendant was charged with resisting and obstructing an officer without violence. We view Pate v. State, 698 So.2d 609 (Fla. 4th DCA 1997) to be more on point. In Pate, the defendant was charged with battery on a law enforcement officer. While he was in the patrol car being transported to the jail, the defendant made threats to kill the arresting officers when he got out of jail. Id. at 610. He also stated he would kill “white cops.” Id. at 610 n. 1. This Court held that the statements were relevant to show the acts of aggression against the officers were intentional. Id. at 610-11. We find Pate indistinguishable from the instant case. While we agree generally that threats toward law enforcement officers are prejudicial when presented to a jury, they are not so prejudicial as to substantially outweigh their probative value and be unfairly prejudicial under the facts of this case. Therefore, we hold the trial court did not abuse its discretion.

Affirmed.

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

      . Resisting an officer with violence is a specific intent crime, whereas resisting and obstructing an officer without violence is not a specific intent crime.


text:
    Charles B. BLACKMON, Appellant, v. DUNES CLUB VILLAS OWNERS ASSOCIATION, INC., Appellee.
    No. 1D11-1404.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2011.
    Arthur I. Jacobs and Richard J. Scholz of Jacobs Scholz & Associates, LLC, Fer-nandina Beach, for Appellant.
    Alexandra Maddox and A. Jeffrey To-massetti, Fernandina, for Appellee.
   PER CURIAM.

DISMISSED. See Canfield v. Cantele, 837 So.2d 371, 376 n. 3 (Fla.2002); Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000).

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. B.R., a minor child, Appellee.
    No. 4D10-2421.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Colleen Farnsworth, Assistant Regional Legal Counsel, Florida Department of Children & Families, Southeast Region, West Palm Beach, for appellant.
    William W. Booth and Michelle Hankey, Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellee.
   On Motion for Rehearing and Clarification

CONNER, J.

We grant the Department of Children and Families’ motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

B.R., a minor, was receiving Social Security benefits as a result of her mental disability. The funds she received were kept in and controlled by a Master Trust. The Department of Children and Families (“DCF”) served as the trustee. After reaching eighteen years of age and thus aging out of foster care, B.R.’s continued need for education and mental health services required her to be moved to Crossroads. Because B.R. no longer qualified to have her funds controlled and monitored through a Master Trust, B.R. and DCF agreed that DCF would transfer the Master Trust funds into a new trust established through the Center for Special Needs Trust Administration. They also agreed that DCF would continue to serve as the new trust’s named trustee. To establish a trust with the Center for Special Needs Trust Administration, a $500 administrative fee must be paid. The trial court ordered DCF to pay this fee, and DCF challenges this order. Having addressed the propriety of ordering DCF to pay the administrative fee in a prior opinion, we reverse.

The facts in R.I. v. Department of Children and Families, 47 So.3d 357 (Fla. 4th DCA 2010) are virtually identical to the facts of this case. In R.I., a developmentally disabled foster child who aged out of foster care appealed a trial court order denying his motion to order DCF to pay the administrative fee for setting up a special needs trust for him after he became an adult. This court found the expense of the administrative fee to set up the special needs trust to be an appropriate expenditure for the use of funds from the child’s Master Trust because it was “intended to benefit, and [did] benefit [the child].” Id. at 360. Therefore, we affirmed the lower court’s order to charge the administrative cost to the trust and not DCF. Id. at 361. This case presents the same scenario. Unfortunately, the trial court did not have the benefit of our decision in R.I. before ordering DCF to pay the administrative fee.

Reversed.

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


text:
    Dijon SURICO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2144.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Dijon Surico, Pembroke Pines, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to file a new motion to correct illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a), expressly alleging where in the records it can be demonstrated that she is entitled to jail time credit (as opposed to drug farm time served for which she would not be entitled to credit) and identifying in which lower court case number the credit applies. See Cabrera v. State, 62 So.3d 1171 (Fla. 4th DCA 2011); see also Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998).

WARNER, STEVENSON and LEVINE, JJ., concur.


author: TORPY, J. PALMER, J.,

text:
    Dorall Daniel MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-636.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

Appellant seeks a new trial based upon the trial court’s ruling that precluded him from impeaching the victim with a prior inconsistent statement. The trial court curtailed the impeachment based on the conclusion that the prior inconsistent statement was inadmissible hearsay. We reverse and remand for a new trial.

Appellant was convicted of several charges arising from a drive-by shooting of the victim, who was walking down the street when he was shot in the leg. Although it was dark, the victim said he could see the driver because the window on the driver’s side was down. He identified Appellant as the driver, and stated that he had seen a gun in the driver’s hand. He could not identify any of the other occupants of the car.

Prior to trial, the victim told the prosecutor that Appellant was not the driver of the suspect vehicle. The prosecutor passed this information on to the defense attorney. During trial, Appellant’s counsel asked the victim whether he had told the prosecutor that Appellant was not the driver. The victim said: “I don’t recall.” Labeling the prosecutor’s testimony hearsay, the trial court denied Appellant’s request to impeach the victim by calling the prosecutor.

On appeal, the State does not defend the correctness of the trial court’s ruling. Indeed, a party may attack a witness’s credibility by introducing a prior statement of the witness that is inconsistent with the witness’s present testimony. Williams v. State, 472 So.2d 1350, 1352 (Fla. 2d DCA 1985) (citing § 90.608(1)(a), Fla. Stat. (1983)). The prior inconsistent statement may be oral and unsworn. If the witness cannot recall making the prior inconsistent statement, the fact that the statement was made may be proved by another witness. Id. The inconsistent statement is not hearsay, because it is not offered to prove its truth, only to show the inconsistency for impeachment purposes. Although implicitly acknowledging the erroneous nature of the ruling, the State, nevertheless, urges that we affirm because the error is not “cognizable.” Specifically, the State asserts that defense counsel failed to make the correct legal argument and never attempted to call the prosecutor or proffer his testimony.

During trial, the prosecutor requested a sidebar regarding the anticipated line of questioning. The following discussion ensued:

PROSECUTOR: If we’re going to go down this line of questioning, I want it done outside the presence of the jury. DEFENSE: I’m using it to impeach on — based on your — you disclosing to me the statements that he made. PROSECUTOR: Correct. Although it’s
COURT: But it’s hearsay and ...
PROSECUTOR: ... and it’s hearsay, and I’m not going to agree to it. You’d have to call me as a witness, and I cannot be a witness.
COURT: All right. I guess we’ll have to discuss this.
DEFENSE: Well, it’s not hearsay. I mean, as to what he said. It’s hearsay for me to ask him what was told to him.
PROSECUTOR: Correct.

Thereafter, the trial court excused the jury and a proffer was conducted during which the victim was questioned by counsel and the court. In response to a question from the court, the victim confirmed that Appellant had been driving the car:

COURT: Okay, did you see him [referring to Appellant]?
VICTIM: Yes.
COURT: All right. And do you recall whether he was the driver or the passenger?
VICTIM: Yes. He was the driver.
COURT: He was the driver. Okay. All right.

Defense counsel then interjected that “[the victim] told the State differently, that he was the passenger.” Defense counsel then requested the right to question the victim about the inconsistent statement in the presence of the jury. The State agreed that counsel could ask about the purported statement, but argued that counsel could not impeach him if he failed to admit the prior statement. The court agreed with the State, ruling that “you couldn’t call the prosecutor because it would be hearsay.”

We think the issue was adequately preserved. Counsel argued that he was entitled to inquire about the inconsistent statement to impeach the victim. Although he did not attempt to call the prosecutor during the trial, given the trial court’s definitive ruling outside the jury’s presence, any such attempt would have been futile and was not necessary to preserve the error. See § 90.104, Fla. Stat. (2010) (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”). Nor do we conclude that the proffer was insufficient. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 n. 1 (Fla. 4th DCA 2005) (“[T]he traditional purpose of a proffer, or offer of proof, is to demonstrate to an appellate court a real error, not an imaginary or speculative one. Although the safest practice would be to proffer the actual evidence, an oral proffer may be sufficient, particularly if there is no dispute as to what the evidence would have been.” (citations omitted)); see also Charles W. Eh-rhardt, Flonda Evidence § 104.3 (2010 ed.) (“an offer may also be made ... by a professional statement by counsel to the court disclosing the answer ... ”). The prosecutor confirmed that the conversation occurred and did not refute defense counsel’s assertion that the victim had told the prosecutor that Appellant was not the driver. Under these circumstances, it was not necessary to actually call the prosecutor to proffer the proposed testimony.

Although the State does not specifically argue that the error was harmless, it does claim that the ostensible inconsistency was immaterial in that the victim testified that both the driver and passenger were shooting. The fallacy in this claim is that the victim told the police that he could not identify the passenger. Given other inconsistencies in the victim’s account of the incident, his description of the driver, and the fact that the State’s case was almost entirely based on the victim’s eyewitness testimony, we cannot conclude that the error here was harmless.

REVERSED AND REMANDED.

COHEN, J, concurs.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent because, on the state of the instant record, it is impossible to determine whether the trial court’s exclusion of the prosecutor’s testimony constitutes reversible error.

Although defense counsel proffered the victim’s testimony, no proffer was made or requested as to the prosecutor’s testimony. Instead, defense counsel simply argued that he was entitled to inquire of the prosecutor about the victim’s alleged inconsistent statement. Under these circumstances, we cannot determine what the prosecutor’s testimony would have been and whether the trial court’s exclusion of such evidence was harmful. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 n. 1 (Fla. 4th DCA 2005).

In my view, the more appropriate disposition in this case would be to affirm the defendant’s judgment and sentence, and allow him to file a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of trial counsel. This remedy is appropriate in this circumstance because, in a post-conviction evi-dentiary proceeding, the trial court would be able to determine whether defense counsel’s failure to proffer the prosecutor’s testimony was prejudicial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If so, the trial court then could have granted the defendant a new trial. If not, then an enormous waste of judicial resources would have been avoided.

      . The victim told police that the driver had a "grill,” meaning gold capped teeth. He later acknowledged that, although he had known Appellant for many years, he had never known him to have a "grill.” The victim also initially told police that he did not know who shot him.


author: GRIFFIN, J.

text:
    Tiffany ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-571.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Tiffany Rose [“Rose”] appeals her judgment and sentences for attempted robbery with a firearm and aggravated assault (firearm) after a jury trial. We find merit only in her claim of error in failing to grant her motion for judgment of acquittal at the close of the State’s case with respect to the attempted robbery with a firearm count.

At trial, the State’s principal witness was the victim. She testified that on July 24, 2009, her doorbell rang. She saw a woman at the door, and she stepped outside to see what the woman wanted. The woman said, “we’re lost” and “[w]e’re trying to find Palatka.” She said to the woman “if you’re going down south down this way, you’re heading the right way.” The woman then asked “is that close to Orange Park,” a question the victim found surprising. She said “well, that’s Jacksonville.” As she looked north, a second woman (later identified as Rose) came out from behind a bush in the front of her house, pointing a silver, longer-barreled, snub-nosed handgun at her face with elbows locked and finger on the trigger. The victim told the two women to get away from her, but the woman with the gun walked closer, within two feet. The women told her to “hush, hush, be quiet, hush;” but she was “scared to death” and ran. The women then drove off in a white vehicle. She got the tag number, AEJ-5450, and called 911 from a neighbor’s house.

A recording of the victim’s 911 call was entered into evidence and published to the jury. On the recording, the victim can be heard saying that she did not recognize either of the women, and describing the woman with the gun as having a hat on and “like a mask around her face.” Also, Deputy Michael Soles testified during the trial that, in an initial description of the second woman, the victim stated that the second woman “was wearing a cloth over the face, ball cap, sunglasses.”

At trial, Officer Thomas Staten Keisler testified that while he was working patrol on July 24, 2009, he became involved in a felony traffic stop of a white vehicle, the driver and passenger were secured and identified, the driver was “Miss Longstreet,” and the passenger was “Miss Rose.” Crime scene technician Aimee Tin-gen [“Tingen”] detailed the search of the white vehicle. When asked to “summarize generally what was discovered during the search,” Tingen stated:

There was [sic] personal items, which included an ID and a credit card for Andrea Longstreet, several cell phones, several pairs of sunglasses, various jewelry, a black duffel bag which contained duct tape, rope, two pairs of gloves. Also, a — a crowbar pry tool, a flashlight, a box of Winchester shotgun shells, a magazine that contained .380 bullets, as well as a Maverick Mossberg, model 88, 12-gauge shotgun.

In Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997), the Florida Supreme Court addressed the elements of attempted armed robbery, providing:

In order to prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm. See §§ 777.04(1), 812.13(2)(a), Fla. Stat. (1993); Cooper v. Wainwright, 308 So.2d 182, 184 (Fla. 4th DCA), cert. dismissed, 312 So.2d 761 (Fla.1975). In this context, intent may be proved by considering the conduct of the accused and his colleagues before, during, and after the alleged attempt along with any other relevant circumstances. Cooper, 308 So.2d at 185.

Taken together, the evidence adduced at trial suggests that Rose intended to commit an offense, but it is insufficient to establish that Rose intended to commit robbery.

This case is similar to Thomas v. State, 349 So.2d 743, 743 (Fla. 1st DCA 1977). There, the defendant, unmasked, had rung the doorbell of a Pensacola residence; and “[w]hen the occupant opened the door, ... two masked men rushed in brandishing shotguns.” Id. at 744. “[Wjaiting sheriffs deputies” intercepted them, and “[o]ne of the masked intruders was shot dead.” Id. The intruder who was shot dead had “two days before, met with sheriffs deputies and advised them in detail that the three intended to commit a robbery in the manner in which the episode unfolded on the night of the 28th.” Id. The First District Court of Appeal concluded that the deceased informant’s statements were inadmissible hearsay and that the evidence other than the inadmissible hearsay was insufficient to establish a specific intent to commit robbery. Id. It explained in part:

Although the informant’s recitation amply and, as it turned out, accurately depicted the criminal plan, the deputy’s testimony of the recitation was hearsay which could not competently evidence the purpose of the accused survivors of the invasion. That [the defendant] and his confederates intended to force entry by means of weapons, and to commit some violent offense on the premises, cannot be doubted; but the dead informant’s prior accusation is not competent proof that the survivors intended robbery rather than murder, rape, or some other vicious assault....

Id. Here, similar to Thomas, the evidence is insufficient to establish that Rose had the specific intent to commit robbery. Therefore, the trial court erred by denying Rose’s motion for judgment of acquittal with respect to the charge of attempted robbery with a firearm. We reverse the conviction for attempted robbery with a firearm and remand for entry of an amended judgment and for resentencing.

REVERSED and REMANDED.

ORFINGER, C.J., and COHEN, J„ concur.


text:
    Yagnabala K. PATEL, DDS, Appellant, v. David W. BOERS, DDS, et al., Appellees.
    No. 5D09-4250.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    Randall M. Shochet of Shochet Law Group, Greenacres, for Appellant.
    Yagnabala K. Patel, Orlando, pro se.
    Eric S. Mashburn of Law Office of Eric S. Mashburn, P.A., Winter Garden, for Appellees.
   PER CURIAM.

Yagnabala Patel, DDS, appeals the order dismissing with prejudice Count II of her complaint against Thomas Cheng, DMD. Count II alleged Cheng’s breach of a restrictive covenant in the Provider Agreement entered into between Cheng and David Boers, DDS. Patel was attempting to enforce the restrictive covenant based on the assertion that Boers had assigned the Provider Agreement to her. The trial court ruled that dismissal with prejudice was appropriate because the restrictive covenant in the Provider Agreement was not properly assigned to Patel as required by section 542.335(l)(f), Florida Statutes (2006), and therefore Patel could not seek enforcement of the restrictive covenant against Cheng via injunctive relief. We disagree and reverse.

The Provider Agreement that Patel is attempting to enforce was entered into between Boers and Cheng as the culmination of Boers’ efforts to bring another dentist into his Ocoee dental practice. After Boers became convinced that Cheng would be a good fit in his practice, Boers entered into the 2008 Provider Agreement with Cheng to memorialize both parties’ rights and obligations. That Provider Agreement contained the restrictive covenant at issue — a noncompete agreement whereby Cheng agreed not to compete with the practice for a specified time in a specified location. The specific terms and conditions of the noncompete agreement are not at issue in this appeal.

The Provider Agreement also contained a general assignment clause whereby Cheng and Boers “specifically agreed that the mutual and reciprocal covenants and agreements, rights and obligations contained in this Provider Agreement are assignable only by [Boers].” Boers subsequently sold his dental practice to Patel and assigned the Provider Agreement containing the restrictive covenant to her. The bill of sale entered into between Boers and Patel provided that Boers “does hereby sell ... assign and convey unto Yagna-bala K Patel ... all Seller’s right, title and interest in and to all of the Assets (as defined in the Attached Asset Purchase Agreement) ...” An addendum to the Asset Purchase Agreement provided, in pertinent part, that “Seller agrees to transfer the professional employee contract (Provider Agreement) between Seller and Thomas Cheng.... ” The closing took place in July 2007, and Cheng continued to work for Patel for almost a year after she purchased Boers’ dental practice. When things did not go well between Cheng and Patel, Cheng left Patel’s employment. Patel subsequently initiated the underlying litigation, claiming in Count II of the complaint that Cheng had committed numerous violations of the restrictive covenant’s noncompete provision and seeking enforcement through injunctive relief.

Cheng filed a motion to dismiss the injunction claim, arguing that Patel lacked standing to enforce the restrictive covenant because the Provider Agreement did not comply with the requirements of section 542.335(l)(f)(2), Florida Statutes (2006). That statute specifically provides:

542.335 Valid restraints of trade or commerce.—
[ (1) ](f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
* * *
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s as-signee or successor.

The trial court granted the motion to dismiss with prejudice reasoning that the restrictive covenant contained in the Provider Agreement did not contain language that “expressly authorized enforcement” by an assignee. Essentially, the trial court held that restrictive covenants can only be enforced by an assignee if the requisite statutory language is included in the covenants. We disagree.

The assignment language contained in the instant Provider Agreement is sufficient to constitute an express authorization of enforcement by an assignee or successor as required by the statute. See Price v. RLI Ins. Co., 914 So.2d 1010, 1013-14 (Fla. 5th DCA 2005) (explaining that an assignment is a transfer of all the interests and rights to the thing assigned and that the assignee stands in the shoes of the assignor and may enforce the contract against the original obligor).

Accordingly, the trial court erred in dismissing with prejudice Count II of Patel’s complaint seeking injunctive relief.

REVERSED and REMANDED for further proceedings.

ORFINGER, C.J., PALMER, J., concur.

AWAYA, J., concurs in result only.

      . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) which authorizes appeals from nonfinal orders that “grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.”


text:
    James HOPPERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4551.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2011.
    James Hoppert, pro se.
   PER CURIAM.

James Hoppert appeals the posteonviction court’s order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In his motion, Hoppert claims that the evidence presented at trial was insufficient to support his conviction for burglary of an occupied structure and that it only supported a conviction for the lesser offense of burglary of an unoccupied structure. Hoppert directly challenges his conviction under section 810.02(3)(c), Florida Statutes (2007); therefore his motion is improper as a motion to correct illegal sentence. Because Hoppert’s motion is timely filed and properly sworn under Florida Rule of Criminal Procedure 3.850, the postconviction court should have analyzed it as such. Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008). Nevertheless, we affirm the denial of Hoppert’s motion.

In his motion for postconviction relief, Hoppert alleges that the public women’s restroom he burglarized was unoccupied because each stall is a structure of its own and the victim did not exit her stall until after Hoppert had exited the restroom. The postconviction court found that Hop-pert’s motion was without merit because the restroom was occupied when Hoppert entered the women’s restroom and photographed the victim with his cell phone camera by reaching under the stall. While the postconviction court was correct in denying Hoppert’s motion, it should have done so on the ground that claims of insufficiency of the evidence are not cognizable in a rule 3.850 motion and should be raised on direct appeal. See Fla. R.Crim. P. 3.850(a); Savage v. State, 832 So.2d 807, 808 (Fla. 2d DCA 2002) (holding that an argument establishing an affirmative defense to burglary was a direct appeal issue and not cognizable in a rule 3.850 proceeding); Jackson v. State, 640 So.2d 1173, 1174 (Fla. 2d DCA 1994) (“[I]t is well-settled that insufficiency of the evidence cannot be raised under rule 3.850[.]”).

We affirm the postconviction court’s order on the basis that relief was not available even if the motion had been appropriately considered pursuant to rule 3.850.

Affirmed.

NORTHCUTT, VILLANTI, and CRENSHAW, JJ., Concur.


author: COHEN, J.

text:
    Anderson MANSINGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2843.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Anderson Mansingh appeals his convictions for first-degree murder and burglary of a dwelling with an assault or battery, following a jury trial. Mansingh raises three issues on appeal, only one of which merits discussion.

Mansingh contends he was deprived of his constitutional right to a public trial when the trial court excluded the public during voir dire, despite his objection and request they be allowed to sit in the jury box. As the jury was preparing to enter the courtroom for voir dire, the court deputy informed individuals seated in the back of the courtroom that they would need to leave as the prospective jurors would occupy every seat. Mansingh suggested that the unidentified spectators could sit in the jury box. No record was made of the number of spectators or their relationship to Mansingh. The trial judge believed Mansingh’s suggestion was inappropriate and refused. The discussion of the issue is fleeting:

Mr. Schmer: I won’t belabor the point. I need to object on the record.
The Court: I understand.
Mr. Schmer: Thank you.
The Court: Unfortunately we have limited space in the courtroom.

Notably, Mansingh failed to state a legal ground for his objection. No argument was made about Mansingh’s right to a public trial and no case law was provided or cited to the trial judge. Whatever issues counsel had with the removal of spectators during voir dire were not discussed.

To presérve an argument of trial court error in overruling an objection, the objection must be contemporaneous, state a legal ground, and the argument on appeal must be the same legal ground advanced for the objection below. See State v. Colbert, 968 So.2d 1043, 1044 (Fla. 5th DCA 2007), quoting Harrell v. State, 894 So.2d 935, 940 (Fla.2005). Mansingh lodged only a general objection to individuals not being allowed to sit in the jury box, and he did not argue, as he does on appeal, that the trial court was required to make findings of a compelling governmental interest and that closure was narrowly tailored to serve that interest. He also did not alert the trial court that Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), required certain findings to be made. We do not believe that an objection “for the record,” without setting forth legal grounds, is adequate to preserve an issue for appeal. See Jones v. State, 883 So.2d 369, 371 (Fla. 3d DCA 2004) (holding counsel’s statement that he would like to see some legal authority and failure to advance the legal theory being asserted on appeal when faced with State’s closure motion, coupled with failure to object or any statement on the record that anyone left the courtroom when trial court granted the motion, did not preserve partial closure of courtroom for appellate review); Luda v. State, 860 So.2d 457, 458 n. 1 (Fla. 4th DCA 2003) (holding defendant’s general objection, coupled with failure to cite statutory language exempting family members from exclusion during a trial when any person under sixteen is testifying about a sex offense, was insufficient to preserve the issue for appellate review).

AFFIRMED.

PALMER and TORPY, JJ., concur.

      . See also Presley v. Georgia, - U.S. -, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).


text:
    Anthony LUTHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1214.
    District Court of Appeal of Florida, Fifth District.
    Aug. 26, 2011.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The defendant, Anthony Luther, was convicted pursuant to section 893.13(l)(f), Florida Statutes (2009), of selling cocaine within 1,000 feet of a public housing facility. We agree with Luther that the State failed to prove that the location where the drugs were sold was a public housing facility. The trial court, therefore, erred in failing to grant the defendant’s motion for judgment of acquittal on that ground.

Accordingly, we reverse Luther’s conviction for selling cocaine within 1,000 feet of a public housing facility and remand with instructions to the trial court to adjudicate Luther guilty of selling cocaine, a necessarily lesser included offense, and to resentence him accordingly. See § 924.34, Fla. Stat. (2009); Paige v. State, 641 So.2d 179 (Fla. 5th DCA 1994) (reversing conviction for possession of cocaine with intent to sell within 200 feet of a public housing facility because the statute was unconstitutionally vague; remanding with instructions to enter a judgment for simple possession of cocaine with intent to sell); see also Cox v. State, 764 So.2d 711, 713 (Fla. 1st DCA 2000) (“Therefore, we conclude the state failed to prove an essential element of the charged offense, i.e., that the offense was committed within 1,000 feet of a school. Since the state proved appellant committed the offense of sale of cocaine, the conviction for sale of cocaine within 1,000 feet of a school must be vacated and remanded with directions to enter a judgment of conviction and sentence for sale of cocaine, in accordance with the provisions of section 924.34, Florida Statutes.”).

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, LAWSON and JACOBUS, JJ., concur.

      . Luther also argues that the trial court erred in instructing the jury on expert witnesses because the trial court did not indicate to the jury which witnesses were experts. As to this issue, we affirm without further discussion.

      . We note that the Florida Supreme Court has held section 924.34 unconstitutional "[t]o the extent that [it] can be read to provide for conviction of an offense whose elements have not been determined by the jury....” State v. Sigler, 967 So.2d 835, 844 (Fla.2007). However, section 924.34 can be constitutionally applied in the instant case because the sale of cocaine is a necessarily lesser included offense of the sale of cocaine within 1,000 feet of a public housing facility. See id. ("[W]hen all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.”).


text:
    Carlton D. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4202.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Carlton D. Carter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Travis Jamal STALLWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4104.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Travis Jamal Stallworth, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, PADOVANO, and RAY, JJ„ concur.


text:
    James SPELLMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4078.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    James Spellman, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    David Eugene GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4064.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    David Eugene Graham, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    Frederick Gino DEMERY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3779.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Frederick Gino Demery, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    A.W. BAYLOR PLASTERING, INC., Appellant, v. CARLTON DUNES CONDOMINIUM, ASSOCIATION, INC., Nassau Beach Development Venture, White Oak Land Corp., FM Southeast, Inc., Charlan Brock & Associates, Inc., KTD Consulting Engineers, Inc., N.H. Joshi & Associates, Inc., Foley & Associates Construction Co., Inc., Peter Suciu, d/b/a, Suciu Stucco Company, Mark T. Green, d/b/a, B & G Interiors, Aluma Systems USA, Inc., E.C. Concrete, Inc., Pizzazz Marble & Tile, PRC Waterproofing, Inc., Greg’s Roofing, Inc., G & W Plumbing Co., Inc., First Coast Fire Sprinklers, Inc., Bayshore Electric, Inc., James C. Westbrook, Dula-Wright Aluminum Products, Inc., and the Orvis Group, Appellees.
    No. 1D11-2765.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.

      James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale; Geoffrey D. Sessions and Stephanie A. Broder of Hinshaw & Culbertson LLP, Jacksonville, for Appellant.
    Carol M. Rooney and Shannon H. Tan of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee Foley & Associates Construction Co., Inc., for Appellee.
   PER CURIAM.

DISMISSED. See, e.g., City of Panama City v. Andina, Inc., 63 So.3d 908 (Fla. 1st DCA 2011); Gleicher v. Claims Verification Inc., 908 So.2d 560 (Fla. 4th DCA 2005).

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


text:
    AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. Danny Mitchell NEAL, Jr., Respondent.
    No. 1D11-2060.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Julie Waldman, Supervising Attorney-Institutions/Forensics, Agency for Persons with Disabilities, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Dep’t of Children & Families v. Clem, 903 So.2d 1011 (Fla. 5th DCA 2005).

THOMAS, WETHERELL, and SWANSON, JJ., concur.


text:
    Stanley D. STOVALL, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-1902.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Stanley D. Stovall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Jennifer Parker, General Counsel, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

VAN NORTWICK, MARSTILLER, and SWANSON, JJ., concur.


text:
    Keith LANDI, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3540.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Burgos, 994 So.2d 1212 (Fla. 5th DCA 2008); Aguilar v. State, 700 So.2d 58 (Fla. 4th DCA 1997); State v. Navarro, 464 So.2d 137 (Fla. 3d DCA 1985); see also, U.S. v. Montague, Slip Op., 2010 WL 3294283 (S.D.Fla. Aug. 20, 2010); but cf. Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009).

SAWAYA, LAWSON and COHEN, JJ., concur.


text:
    Michael John FURRY, Appellant, v. Jennifer Von Arb RICKLES, Appellee.
    No. 1D10-5945.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.

      Michael John Furry, pro se, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant challenges a final judgment of injunction for protection against domestic violence. Although he raises three issues on appeal, we address only whether the hearing on the injunction satisfied due process requirements. Because the trial court entered the injunction without conducting a full evidentiary hearing pursuant to section 741.30(5), Florida Statutes (2010), its actions constitute a due process violation. We reverse and remand for further proceedings.

Parties are entitled to a full hearing prior to the trial court issuing a permanent injunction. See § 741.30, Fla. Stat. (2010) (“If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ex parte, pending a full hearing ... ”); see also Fla. Fam. L.R.P. 12.610(c)(1)(C) (providing that “the court shall conduct a hearing and make a finding of whether domestic violence occurred or whether imminent danger of domestic violence exists”); Lewis v. Lewis, 689 So.2d 1271, 1273 (Fla. 1st DCA 1997) (“Section 741.30[ ] anticipates a “full hearing” prior to issuing a permanent injunction”). To satisfy due process requirements at an injunction hearing, the parties must have a reasonable opportunity to prove or disprove the allegations made in the complaint. See Ohrn v. Wright, 963 So.2d 298 (Fla. 5th DCA 2007). This includes allowing relevant testimony of pertinent, noncumulative witnesses who are present and cross-examination of the parties. See Lewis, 689 So.2d at 1273.

In the instant case, the court began the hearing by informing the parties that they had a limited amount of time to present their cases. The court then conducted all questioning of the parties and virtually all questioning of the other witnesses that testified. The court was aware the attorneys might wish to conduct direct/cross examination as it made two comments dismissing any request based on time constraints. The court also dismissed Appellant’s request for a “quick hearing”; denied his request to present the relevant noncumulative testimony of a pertinent witness; and did not allow him to “object to,” or cross-examine, the opposing party’s expert witness. The latter two requests speak directly to the injunction filed on the child’s behalf. While the court might have remained unconvinced had it heard additional evidence, it still should have provided Appellant the opportunity to fully present his case.

Because Appellant was denied a reasonable opportunity to present his case and because time constraints are not an excuse for a trial court’s failure to conduct a full hearing, we REVERSE and REMAND for a new hearing. See Ohrn, 963 So.2d at 298 (‘While we are sympathetic to the time constraints faced by busy trial courts, we cannot ignore the dictates of the Florida Statutes or the requirements of fundamental due process concerning the procedures to be utilized in making critical decisions of this nature”).

HAWKES, CLARK, and RAY, JJ., concur.


text:
    Theodore M. PERKINS, Jr., Appellant, v. James Lee WHITMIRE and J. Alan Kohr, Co-Representatives of the Estate of Warren Taylor Whitmire, Appellees.
    No. 1D11-3395.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    John N.C. Ledbetter of Ledbetter & Associates, P.A., Destín; and Samuel B. Taylor of Samuel B. Taylor, P.A., Destín, for Appellant.
    Scott A. Remington of Clark, Parting-ton, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 28, 2011, the Court has determined that the Amended Final Judgment is not a final order because it fails to conclude the judicial labor in the case. Accordingly, the appeal is dismissed as premature. The appellant’s Emergency Motion to Stay Appeal and Remand to the Trial Court; or in the Alternative, Petition for Writ of Cer-tiorari, filed on July 13, 2011, is denied.

DAVIS, PADOVANO, and RAY, JJ., concur.


text:
    Peter Felix ARMSTRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4124.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Ashley Smith Herndon of Dewrell & Herndon, Shalimar, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. See Jernigan v. State, 608 So.2d 569 (Fla. 1st DCA 1992) (factually unsupported theory that a judge is prejudiced against defendants in a particular class is not legally sufficient to support disqualification).

VAN NORTWICK, MARSTILLER, and SWANSON, JJ., concur.


author: KHOUZAM, Judge.

text:
    STATE of Florida, Appellant, v. Lorenzo Dean HOOD, Appellee.
    No. 2D10-54.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellee.
   KHOUZAM, Judge.

The State appeals an order granting Lorenzo Dean Hood’s motion to suppress. Because the circuit court should have denied Hood’s motion, we reverse and remand.

On July 13, 2009, Hood was charged with one count of grand theft, one count of burglary, and two counts of grand theft of a motor vehicle. Hood filed a motion to suppress on November 25, 2009, arguing that evidence seized pursuant to a search warrant should be suppressed because the search warrant was based on information obtained during an illegal entry and search. The circuit court granted the motion after a hearing was held.

The evidence presented at the hearing on the motion to suppress revealed that a car audio business owned by George Joyner had. been broken into and a set of tires and two cars with custom paint jobs were missing. Joyner observed that someone had rammed a car into the back door of the business. There was maroon paint on the door that Joyner believed had come from Hood’s car because Hood had been to the business the day before and had been driving a maroon car.

The next day, Joyner went out in search of the stolen cars. He identified one of the cars — a 1985 Oldsmobile with a blue and purple custom paint job — in a garage attached to a house. A man was working on the car, and the car’s hood had been taken off. Joyner also identified Hood’s maroon car parked at the house.

After making these observations, Joyner called law enforcement and told Detective Christopher Stoddard that he had seen one of the stolen cars. He told Stoddard that it appeared that the car was being stripped for parts.

In response to Joyner’s call, Stoddard went to the residence without a search warrant. Nobody answered the door, but Stoddard heard a scuffling noise inside the garage, which was open by three inches. When he got down on his hands and knees to look inside the opening to investigate the noise, he touched the door to support himself. The door lifted up, and then he pushed it up the rest of the way. He took a few steps inside to see if there was anybody there, and then left the residence to prepare a search warrant. The affidavit that he prepared included information gathered during his search of the garage, information provided by Joyner, and information from Detective John Lathrop, who had arrived at the home after Stoddard had left.

Detective Lathrop also went to the residence to investigate Joyner’s call. La-throp waited at the house until the owner came home. When he asked her if he could search the house, she told him to get a warrant. Lathrop asked the owner whether there was anybody in the house. Because she did not know if anybody was inside, Lathrop entered with her to secure the residence. He completed a cursory search by walking through the entire house except for one locked room. During the search, Lathrop observed a set of large tires that had been placed in the middle of a back bedroom. He told Detective Stod-dard about the tires and left the home.

The court granted the motion to suppress, finding that because there were no exigent circumstances and there was no consent, Lathrop and Stoddard had unlawfully entered and searched the home. Accordingly, the officers’ observations could not properly be used to support a search warrant. The court also noted that it believed that Joyner’s observations provided a substantial basis for concluding that probable cause existed. But, relying on Mercier v. State, 579 So.2d 308 (Fla. 2d DCA 1991), and Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the court ultimately found that these independent facts could not form the basis for the warrant because the officers’ observations made during the unlawful entry had tainted the affidavit.

On appeal, the State does not dispute that the entry and search of the garage and the house were unlawful. Instead, the State argues that the search warrant was valid despite the fact that the supporting affidavit included information obtained during these unlawful searches. The State correctly points out that neither Mercier nor Segura addressed the question of whether a search warrant issued in part based on information gathered from an unlawful warrantless entry is invalid even though it also includes validly gathered information that would independently support the warrant.

Generally, this court reviews a circuit court’s ruling on a motion to suppress under a mixed standard: factual findings are given deference if supported by competent, substantial evidence but legal conclusions are reviewed de novo. State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010). However, a standard of great deference applies in cases addressing the validity of a search warrant based on probable cause. Id. This court has explained that “[i]n the context of evidence seized by virtue of a search warrant, when no one claims that the police fabricated or omitted evidence from the warrant, this is once again primarily a legal examination of the evidence in the affidavit to determine whether it established probable cause— with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.” Pilieci v. State, 991 So.2d 883, 894 (Fla. 2d DCA 2008).

“It is axiomatic that evidence resulting from an illegal search cannot be the basis of probable cause supporting a subsequent search warrant.” State v. Rabb, 920 So.2d 1175, 1187 (Fla. 4th DCA 2006). But our inquiry does not end there. Once it has been established that the police performed an unlawful search, this court must determine “whether any independent and lawfully obtained evidence establishes a substantial basis for concluding that probable cause existed to support the issuance of a search warrant.” Id. Therefore, the inclusion of illegally obtained evidence in a supporting affidavit does not automatically invalidate the resulting search warrant. Id. (quoting State v. Hunwick, 434 So.2d 1000, 1001 (Fla. 4th DCA 1983)).

Instead, the court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause. Id. If so, the search warrant is still valid. “ ‘To establish probable cause, the affidavit must set forth two elements: (1) the commission element— that a particular person has committed a crime — and (2) the nexus element — that evidence relevant to the probable criminality is likely to be located at the place searched.’ ” State v. Exantus, 59 So.3d 359, 361 (Fla. 2d DCA 2011) (quoting State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006)). The sufficiency of the affidavit must be determined based on the totality of the circumstances. Id.

Here, the record on appeal shows that law enforcement obtained the following information from Joyner, independent of their unlawful entry and search of the house and garage. Joyner, the owner of the business, had identified the stolen vehicle — a 1985 Oldsmobile with a custom blue and purple paint job — at the house the day after the theft. The person working on the car appeared to be stripping it. There was maroon paint on the back door of the business where it appeared that the perpetrator had rammed his vehicle into the door. Hood drove a maroon car. Hood was at the business the day before the theft. And, finally, Hood’s maroon vehicle was parked in front of the same house where Joyner saw the stolen vehicle.

This information was sufficient to establish probable cause for a search warrant independent of the evidence uncovered during the warrantless entry and search of the house and garage because it suggested that Hood had stolen the vehicles from Joyner’s business and that evidence of the theft and burglary could be located at the house. The circuit court judge even noted that he believed the information provided by Joyner was sufficient to establish probable cause:

This is an interesting situation because the citizen alleged victims did have a number of very specific observations regarding the crime, and frankly, I think that if I looked at it in just that aspect, I think that the issuing judge would have had a substantial basis for concluding that probable cause existed to believe that evidence of the crime was at the residence.

Despite this determination, however, the circuit court incorrectly believed that suppression was required because information obtained during the unlawful entry and search had tainted the affidavit.

One additional factor in determining whether a supporting affidavit is sufficient to establish probable cause is the veracity of the informant. State v. Novak, 502 So.2d 990, 992 (Fla. 3d DCA 1987). A victim of a crime is presumed to be a trustworthy informant. Id. Here, Joyner was the informant who provided the information leading the police to the home where the evidence was found. As Joyner was the victim of the theft, he is presumed to be a trustworthy informant and nothing in the appellate record suggests otherwise.

Accordingly, we reverse and remand because the trial court erred in granting Hood’s motion to suppress.

Reversed and remanded.

MORRIS and BLACK, JJ., Concur.

      . We note that the affidavit is not included in the appellate record, apparently because it was never filed with the circuit court clerk. However, the parties do not dispute what information was contained in the affidavit.