text:
    S.K. mother of C.H. and C.H. minor children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D10-4921.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2010.
    Jeffrey E. Lewis, Office of Regional Conflict Counsel, LaShan Fagan, Assistant Regional Counsel, Marianna, and Susan M. Barber, Assistant Regional Counsel, Tallahassee, for Appellant.
    Ward L. Metzger, Jacksonville, and Christina Pumphrey, Marianna, for Department of Children and Families; Holly Hughes Hales, Marianna, and Kelley Schaeffer, Tavares, for Guardian ad Litem Program.
   PER CURIAM.

S.K., the mother, appeals an order placing her daughters, C.H. and C.H., in permanent guardianships and terminating the supervision of the Florida Department of Children and Families (“the Department”) pursuant to section 39.6221, Florida Statutes (2010). She raises two grounds for reversal. First, the mother argues, and the Department concedes, that the record does not contain competent, substantial evidence to support the trial court’s order of permanent guardianship. Second, she argues that the trial court’s written order does not comply with section 39.6221(2)(a) because it does not contain case-specific findings explaining why reunification was not possible. For the reasons that follow, we reverse.

After both of the children were sheltered and adjudicated dependent, the mother entered into a case plan with the goal of reunification. The case plan directed her to (1) complete a parenting course, (2) undergo a psychological evaluation, and (3) periodically meet with her caseworker. It is undisputed that the mother substantially completed these tasks. Additionally, the case plan identified the “[cjurrent visitation schedule” as follows: “Visitation is arranged around the parents’ and grandmotherly] work schedule[s].”

After a permanency hearing, the trial court ordered that both children be placed in permanent guardianships, the first with her paternal grandmother, who lived approximately 400 miles away from the parents, and the second child with her maternal grandmother, who lived approximately two to three miles away from the parents. In particular, the trial court found that reunification with the mother was not possible for the following reasons:

Reunification with the parents at this time would be contrary to the welfare and not in the best interests of the children. The parents are not fit to care for the children and reunification is not possible because of the circumstances from which the court previously based its finding that the children are dependent in the order of adjudication, and in addition, the parents have failed to maintain consistent visitation with the minor children[,] which is necessary to foster a parent-child relationship. The lack of visitation and interaction with the children also renders it difficult to assess whether the safety of the children could be ensured if returned to the care and custody of the parents.

The mother argues, and the Department properly concedes, that the record does not contain competent, substantial evidence to support the trial court’s order of permanent guardianship. See C.S. v. Dep’t of Children & Families, 41 So.3d 368, 369 (Fla. 1st DCA 2010) (a trial court’s order of permanent guardianship must be supported by competent, substantial evidence in the record); B.L. v. Dep’t of Children & Families, 950 So.2d 1264, 1265 (Fla. 5th DCA 2007) (explaining that an appellate court “will not reverse an order that determines permanency by directing long-term placement with a relative if there is competent, substantial evidence to support it”) (citation omitted).

The trial court ordered permanency for two reasons. First, it concluded that the mother failed to “maintain consistent visitation” without quantifying what would have qualified as “consistent visitation.” Because the case plan merely provided that visitation would be “arranged around the parents’ and grandmother[s’] work schedule[s],” the case plan did not identify concrete terms of visitation. Cf.C.S., 41 So.3d at 369 (noting that there were “no terms of visitation in the record”). Accordingly, the trial court’s pronouncement that the mother failed to maintain consistent visitation is misplaced because the mother’s case plan did not provide a standard against which the amount of visitation she actually exercised could be evaluated. The undisputed evidence regarding the children’s current placements further illustrates the disconnect between the trial court’s finding and the evidence. Specifically, the first child lives with her paternal grandmother approximately 400 miles away from the parents, while the second resides with her maternal grandmother approximately two to three miles away from the parents. This evidence suggests, at a minimum, that what would qualify as “consistent visitation” could have differed based on the child. For these reasons, the trial court’s first ground for guardianship placement is not supported by competent, substantial evidence.

The trial court’s second reason for ordering permanent guardianships was its non-committal position that “[t]he lack of visitation and interaction with the children ... renders it difficult to assess whether the safety of the children could be ensured if returned to the care and custody of the parents.” In this statement, the trial court acknowledged that there was insufficient evidence to show whether the children would be endangered if reunified with the mother. In light of this acknowledgement, it is clear that this position does not qualify as a basis for placing the children in permanent guardianships. C.S, 41 So.3d at 369 (trial court’s order must be supported by competent, substantial evidence).

The mother additionally argues, and we agree, that the trial court’s written order does not comply with section 39.6221(2)(a), which requires the trial court to make case-specific findings explaining why reunification is not possible, for two reasons. C.A. v. Dep’t of Children & Families, 27 So.3d 241, 242 (Fla. 4th DCA 2010); C.S., 41 So.3d at 369 (explaining that section 39.9221(2) “requires case-specific findings”). First, the first clause of the second sentence of the trial court’s order provides that “[t]he parents are not fit to care for the children and reunification is not possible because of the circumstances from which the court previously based its finding that the children are dependent in the order of adjudication.” (emphasis added). This clause fails to comport with the statutory mandate of section 39.6221(2)(a) because it “makes only a general reference to the circumstances from which the court previously based its findings that the children are dependent.” In re J.S., 18 So.3d 712, 714 (Fla. 2d DCA 2009) (internal quotations omitted); accord R.T., Sr. v. Dep’t of Children & Families, 27 So.3d 195, 196-97 (Fla. 5th DCA 2010). Second, the trial court’s additional reference to the parents’ failure “to maintain consistent visitation” and observation that “[t]he lack of visitation ... with the children renders it difficult to assess whether the safety of the children could be ensured if returned to the care and custody of the parents” do not individually constitute sufficient grounds on these facts to support the guardianship placements for the reasons discussed above. See In re J.S., 18 So.3d at 714 (reaching this conclusion based on trial court’s “additional reference to the parents’ failure to work [their] case plan”).

For the foregoing reasons, we reverse the order placing the children in permanent guardianships and remand for further proceedings.

REVERSED and REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Jean THERMIDOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2342.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Jean Thermidor was charged by information with one count of armed robbery with a firearm which occurred on June 21, 2006. The state filed a notice of intent to offer Williams rule evidence under rule 90.402. A hearing was held and the trial court granted the motion. At trial, Ther-midor was convicted of the lesser included offense of robbery and sentenced to fifteen years in prison. He appeals that conviction. We reverse, finding the trial court erred in admitting into evidence the prior uncharged crime of armed robbery which occurred on March 10, 2006.

The state’s first witness at trial, Kizzie Woods, testified that on the evening of June 21, ½006, she was at her home in Pompano Beach at about midnight. She was on the porch or stoop of her apartment when she saw a man across the street who came up to speak with her and called himself Roody. She got his phone number in order to talk and maybe go out. He asked her to call him a cab, which she did from her cell phone. The cab company asked for her number, the pickup address, which was her address, and she gave them Roody’s name. She stayed outside and saw Roody get in the cab and leave. She called him later on that evening and spoke with him. He said he was going home. She identified Roody in a lineup and identified him in the courtroom as Thermidor.

The victim, Jehad Ahmad, testified he has been employed as a Yellow Cab driver since 1994 and worked on June 21, 2006. He started that shift at 10:00 P.M. on June 20. Cab drivers are dispatched by computer and he accepted a call from Pompano Beach having made other pick-ups in that area. A lady, Ms. Woods, and a gentleman were waiting. She was outside with Roody, which is the name the computer gave him. Roody got in the rear passenger seat. Ahmad’s cab did not have a partition. Roody gave him an address of 56th and Oakland Park Boulevard in Laud-erhill.

When Ahmad picked up a late-night fare, he asked for the money up front. He told Roody it was a long distance and the cost was $40. Roody handed him the money with no problem. Ahmad described the route he took.

When Ahmad was approaching the Turnpike on Oakland Park Boulevard west, he saw Roody on a cell phone. He heard him talking but did not hear what he was saying. As he approached 56th, he had a bad feeling so he made a u-turn and went to Denny’s to drop off his passenger. Roody refused to be dropped off there saying he lived a block away. Having no choice, Ahmad drove Roody to Inverrary Village according to Roody’s directions. Once inside, Roody told Ahmad to turn right, go all the way down, make a left, make a right, go all the way down and make another right. He was at a dead end, facing a building. Ahmad put the car in park and turned to give change back to his passenger, at which time two men approached the cab. One of the men had a gun. Roody “flew up” to the front seat and got the keys from the ignition. Roody did not have a gun.

The man with the gun and Roody both asked Ahmad where his money was. Roody searched Ahmad’s socks, pants pockets, and all over. He held Ahmad’s head down between the two front seats. Ahmad gave him the money and Roody continued holding his head down. Ahmad told him his wallet was in the glove compartment. Roody took the wallet with $80 in it, the money in his pocket, as well as the money Roody had given him earlier. He also took Ahmad’s cell phone. Ahmad thought the man with the gun wanted to shoot him. Eventually the two men from outside left. Roody kept holding his head down, then opened the door and threw the keys as he ran away. Ahmad drove to the security office and they called the police. Later he met Detective Brian Hardy of the Lauderhill Police Department. Ahmad was shown a lineup, but was not able to make an identification. Although Ahmad testified that he would know Roody if he saw him, Ahmad could not identify him in court.

Pursuant to the trial court’s ruling on the admissibility of the Williams rule evidence, the state called Sylvain Pluviose to testify about the prior uncharged crime of armed robbery. On March 10, 2006, Pluv-iose was employed as an independent contractor for Yellow Cab and was working in the Plantation area when he was dispatched to the Plantation Inn Motel. The name of the passenger on the computer was Mike. He was outside and ready to go when he arrived. The man confirmed his name was Mike. During a short conversation, Mike told him to go to 56th Avenue and 29th Street, which was Inverrary Village in Lauderhill, where Pluviose made a lot of drops.

When it’s late, taxi drivers try to drop a fare off at the entrance, but Mike did not want to be dropped off there, so Pluviose proceeded into the complex. Pluviose was told to go right and then left and they ended up at a dead end. When he stopped the cab, the passenger opened the door and as he stepped out of the cab, he pulled a gun from his waist. Pluviose realized he was being robbed. He told the passenger not to do anything stupid and asked where the money was. Pluviose then ran out of the cab.

Pluviose ran to some bushes about 100 meters away and hid. He ran because getting out of the dead end would have been a hard maneuver. He had his cell phone when he ran and he called the police. He identified Thermidor in a photo lineup. He also identified him in court.

In its order granting the state’s motion pertaining to Williams rule evidence, the trial court found the following similarities:

[T]he victim’s [sic] are taxi cab driver’s [sic]. The victim’s [sic] both picked up the defendant after midnight and were instructed to drive to the Inverrary Village Apartment complex located at the 2900 block of NW 56th Avenue. Once inside the complex the defendant used very direct and specific instructions to lead the victim’s [sic] to the back of the complex. This area of the complex is a dead end. The two victims’ [sic] were then robbed at gunpoint. They both identified the defendant out of a photo lineup. The defendant lives 150 yards away from Inverrary Village apartments.
The Dissimilarities in these cases are that ... once the defendant arrived at the dead end at the Invennary [sic] Village Apartment Complex, the victim was approached by the two other males, and with the assistance of the defendant, was robbed at gunpoint. In [the other case] the defendant had a gun on his person and robbed the victim by himself.

Thermidor argued to the trial court that the facts in each case were not so unique and similar to allow collateral crime evidence. The state argued that the evidence would show identity and modus operandi.

The Williams rule was codified in section 90.404(2), Florida Statutes (2005), which provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

In Williams v. State, 662 So.2d 419 (Fla. 3d DCA 1995), the Third District applied this rule and held:

Relevant evidence of similar crimes may not be admitted merely to prove bad character or propensity to commit crime. To prevent this, Williams rule analysis must be strictly, not loosely, applied. Proper Williams rule evidence is that which possesses “obvious and telling similarities” to the crime charged. Especially when proferred [sic] to prove identity, Williams rule evidence must indicate circumstances so unique as to point only to the defendant.

Id. at 420 (citations omitted). “To be admissible under the Williams rule, the identifiable points of similarity must pervade the compared factual situations, and, if sufficient factual similarity exists, the facts must have some special character or be so unusual as to point to the defendant.” Thompson v. State, 494 So.2d 203, 204 (Fla.1986). “[S]imilar fact evidence regarding a party whose conduct is in question ‘is not competent to prove the commission of a particular act charged against him, unless connected in such a way as to indicate a relevancy beyond mere similarity in certain particulars.’ ” Williams, 110 So.2d at 659 (citation omitted).

The similarities in the instant case were (1) both cab drivers picked up a black male and drove him to Inverrary Village. Ahmad testified that he had taken fares there on other occasions. (2) Both crimes were armed robbery of a cab driver. (3) The robberies occurred at the same location, Inverrary Village, at a dead end street. The state asserts that very specific directions were given to the dead end street. However, the directions given to each of the drivers were not exactly the same, according to the testimony, and contrary to the state’s assertion, it is not clear from the testimony that they went to the same dead end street.

The dissimilarities between the two cases were that (1) Thermidor carried a gun and committed the crime alone in the collateral crime case and in the instant case there were two other robbers, one of whom possessed the gun; (2) with respect to the actual robberies, the evidence did not show that how the robber(s) proceeded were similar in any way, except that they both involved taking money from the cab drivers; and (3) robbery of cab drivers is a common occurrence in South Florida and elsewhere, and does not constitute a signature-type crime.

In this case, it appears that the dissimilarities outweigh the similarities, especially in light of the addition of two other robbers in the instant case. Furthermore, there does not appear to be anything especially unique about the circumstances to point to Thermidor and only Thermidor. The admission of collateral crimes evidence is subject to the abuse of discretion standard of appellate review. Gadson v. State, 941 So.2d 573, 575 (Fla. 4th DCA 2006). The trial court abused its discretion in this case due to the lack of anything special, unusual, or unique about the robberies of these two cab drivers.

The state argues that if it was error to admit evidence of the collateral crime, it was harmless because the testimony at trial from Ms. Woods proved that Thermidor was in the taxi cab riding to Inverrary. Therefore the state asserts that the identification of Thermidor did not rest only on the collateral crime evidence. Of course the state’s argument overlooks the fact that the victim, Ahmad, was unable to identify Thermidor as the perpetrator of the robbery. Additionally, if the state had proven identity to its satisfaction by the testimony of Ms. Woods, there was no need to introduce collateral crime evidence to prove identification. The collateral crime evidence, however, did show Thermidor’s propensity for committing robberies. Admission of irrelevant fact evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Robertson v. State, 829 So.2d 901, 913-14 (Fla.2002) (citations omitted). We conclude that the state has not overcome this presumption of harmful error and has not shown beyond a reasonable doubt that the error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Since we are reversing this case for a new trial, we also address Thermidor’s assertion that the trial court erred in prohibiting his counsel from attempting to impeach Ahmad by use of his pretrial deposition. The trial court prohibited the use of Ahmad’s deposition for impeachment purposes because the deposition had not been filed with the court. There is no requirement that a pretrial deposition be filed with the court in order to be used at trial for impeachment purposes. See Smith v. State, 594 So.2d 846, 847 (Fla. 2d DCA 1992).

Reversed and remanded for a new trial.

CIKLIN and LEVINE, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Ahmad testified he had just seen the same lady, Ms. Woods, leave the courtroom.


author: POLEN, J.

text:
    Oscar AVILEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5153.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Rehearing Denied Feb. 4, 2011.

      Carey Haughwout, Public Defender, and Jeffrey Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant seeks review of his convictions for sexual battery with a deadly weapon and burglary with assault. Appellant raises multiple issues on appeal, but we write only to address his argument that the trial court erred in overruling his hearsay objection to a State witness’s testimony that she had personally assigned a key card to appellant. We agree with the State that the subject testimony was not hearsay, and affirm.

In August of 2004, L.A.R. worked as a mobile service manager at the InTown Suites Hotel. L.A.R. helped open the new hotel and was required to live there. Approximately one week before the incident, L.A.R. met appellant, a maintenance man at the hotel. L.A.R. testified that she and appellant did not have a relationship. At approximately 3:00 a.m. on September 3, 2004, L.A.R. woke up to the sound of her hotel room door opening. L.A.R. recognized the intruder as appellant. He was carrying a knife. L.A.R. testified how, over the course of an hour, appellant sexually battered her while holding the knife to her. Appellant’s key card was later found in L.A.R.’s hotel room.

While cross examining L.A.R., defense counsel asked about a lock report:

Q .... you also have or had at the time an all access key card to the hotel, right?
A. Yes, ma’am.
Q. And you — with these key cards, you have the ability of generating a lock report?
A. Yes, ma’am.
Q. From—
A. Yes, ma’am.
Q. —the key card?
A. Yeah.
Q. And approximately how many transactions will that lock report print out?
A. Twenty-five to 50 depending on how the parameters are setup at that property-
Q. So 25 to 50 of the past transactions.
A. Yes, ma’am.
Q. On that lock, correct?
A. Yes, ma’am. The date time [sic] and the exact electronic key that opened it.

Thereafter, the defense objected when the State attempted to elicit testimony about the contents of the lock report on redirect examination:

Q. [Prosecutor] Now, before you left that day and went home, left Palm Beach County, did you see a lock report for your room?
A. [L.A.R.] I did see a lock report for my room, yes, ma’am.
Q. And looking at that lock report were you able to see that?
[Defense counsel]: Objection; your Honor; hearsay.
[The State]: Judge, it’s not hearsay. It’s ... electronically generated. It’s not person [sic].
The Court: Well, it’s not been established.
[The State]: Okay.
The Court: Sustained.

L.A.R. then proceeded to describe what a lock report is and how it works. L.A.R. testified:

It is generated by the small printer, like a receipt printer, and it has a port like a computer port on it. And it’s a — there’s a hand held battery operated basically computer with a port, and on the bottom part of the lock where you would never notice it there’s a hole and you plug the port into the hole and you read the lock. And it downloads everything, and you take this hand held portable reading to the office to the main terminal that makes all the locks — all the keys, and you plug it in and you would download the lock report.
And from the main terminal console, you print it and it prints out, and it says, as I said, however, the parameters are set whether it’s ten, 25, 50, they’re normally five or more, the exact date and time in military time, and the key card number that opened the door, whether it’s — if it’s a guest room key, a regular guest room key, it will have just a room number. If it’s a staff key, it will say housekeeping one or manager three or whatever.

The witness further explained that a lock report is similar to a Caller ID, stating: “No human can put information into the lock. No human can put information into the hand held except telling it to download the lock report or load the lock report or print the lock report. You can’t change anything, print anything or add anything or delete anything.” At this point, the State asserted that it had established the information from the lock report was not hearsay, noting: “It’s not a person, it’s an electronic device that prints out numbers. The case law is clear that Caller ID, for example, is not hearsay. The officer can read off when he reads off the Caller ID, so likewise, it should be similar.” Defense counsel objected to the information on the lock report being admitted, arguing in part that it was hearsay and not the best evidence. The trial court overruled these objections.

Thereafter, L.A.R. testified that the lock report showed that appellant’s card was used to access her room at 3:00 a.m., and the next entry made to her room was an hour and four minutes later by Ms. Meredith, the other mobile service manager. Over defense objection, Detective Byrd testified that he took possession of the lock report, which showed that L.A.R.’s room had been accessed by appellant’s key card, and the lock report was lost after the detective submitted it to the evidence room.

Carol Meredith was also a mobile service manager who lived at the hotel. Meredith had hired appellant for the maintenance position. Meredith testified that employees sign in and out for keys. Over appellant’s hearsay objection, Meredith testified that she had previously looked at the log-in sheet and determined that the card key found in L.A.R.’s room had been assigned to appellant. Detective Byrd also testified over hearsay objection that the key that opened the room at 3:00 a.m. had been signed out to appellant. Appellant claims it was error to allow these State witnesses to testify that appellant signed out the key card that was found in, and used to open, L.A.R.’s room. We disagree and affirm.

“The standard of review of a trial court’s decision on the admissibility of evidence is generally an abuse of discretion standard. However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1035 (Fla. 4th DCA 2006) (citing K.V. v. State, 832 So.2d 264, 265-66 (Fla. 4th DCA 2002)). Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2004).

Meredith testified that she had assigned a key card to appellant. When she found a key card in L.A.R.’s room, Meredith said she looked at the key log to refresh her memory that the card she found was the one she issued to appellant. We therefore find that Meredith’s testimony was not hearsay, but based on her own actions in assigning that key card to appellant. See § 90.801(l)(c). To the extent that Meredith’s testimony revealed the contents of the key “log” or “lock report,” neither did this testimony constitute hearsay, as the key lock printout is not a statement generated by a person.

“The Florida Evidence Code characterizes hearsay in terms of statements made by ‘persons.’ ” Bowe v. State, 785 So.2d 531, 532 (Fla. 4th DCA 2001). Subsection 90.801(l)(c) defines hearsay as including an out-of-court “statement” of a declarant. Subsection (l)(b) defines a “de-clarant” as a “person who makes a statement.” “Therefore, only statements made by persons fall within the definition of hearsay.” Bowe, 785 So.2d at 532. In the Bowe case, the court found that “caller I.D. display and pager readouts are not statements generated by a person, so they are not hearsay within the meaning of subsection 90.801(l)(c).” Id. We agree with the State’s analogy of a lock report to caller I.D.

Finally, even if the trial court erred in allowing Detective Byrd to testify that the “card had been signed out to the defendant,” the error was harmless because Meredith testified that she personally assigned that key card to appellant. See Heuss v. State, 660 So.2d 1052, 1057 (Fla. 4th DCA 1995) (finding admission of a hearsay statement harmless where the testimony was cumulative of properly admitted evidence).

We affirm on the remaining issues without comment.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: TAYLOR, J. MAY, J.,

text:
    Clive GENTLES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-1436, 4D09-1553.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Rehearing Denied Feb. 4, 2011.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

In this appeal from the denial of the defendant’s motion to suppress, the defendant argues that he was unlawfully detained when a police officer ordered him to turn off his car engine when the officer noticed him asleep in his parked car, with the motor running, during early morning hours in a shopping mall parking lot. The appeal followed the defendant’s no contest plea to felony driving with a suspended license (DWLS) and violation of probation. Based on Popple v. State, 626 So.2d 185 (Fla.1993), we hold that the officer’s direction that defendant turn off his car engine constituted a seizure, without the requisite reasonable suspicion, and reverse the order denying the motion to suppress.

At the hearing on the defendant’s motion to suppress, Lauderhill Police Officer Michael Horn testified that while patrolling the Lauderhill Mall, he encountered the defendant in the parking lot at 4:15 a.m. The mall was closed and, as usual, there were no other vehicles in the parking lot. He saw that the defendant was asleep on the driver’s side of his car and the engine was running. Officer Horn said that he approached the vehicle to make contact with the defendant and make certain that he was not injured or sick. He explained that he was concerned because it was an unusual hour for a car to be in the parking lot and the defendant appeared to be asleep in the running car.

Officer Horn could not recall whether the window was up or down or what he did to awaken the defendant; after failing to respond initially, the defendant woke up and the officer made contact with him. The first thing the officer did was order the defendant to turn off his car. The defendant complied. The officer said he ordered the defendant to turn off the car for his safety and for the defendant’s safety. He explained that he did not want the defendant to drive off, or if he was injured or sick, to get scared and throw the car into gear and accidentally drive into whatever was in front of him. The officer did not testify about any specific facts which made him believe that the defendant posed a danger to the officer.

Officer Horn asked the defendant for identification, and the defendant complied. The officer then asked the defendant if he was okay and if there was a problem. The defendant responded that he was parked in the parking lot because he could not go home to his apartment; he drove around and then fell asleep in the mall parking lot. Officer Horn said that the defendant never expressed any reservations about answering his questions or providing his identification and that he was “compliant the whole time.” Using the defendant’s identification, Officer Horn ran a computer warrant check. This revealed that the defendant had a suspended license as a habitual traffic offender and that he was on probation for felony driving with a suspended license. Officer Horn placed the defendant under arrest and issued him a citation for DWLS (habitual offender).

On cross-examination, Officer Horn testified that when he approached the defendant in the parking lot, he was not responding to any calls relating to criminal activity, drug transactions, or violence. He acknowledged that he did not observe the defendant doing anything illegal and that he did not know about the defendant’s suspended license until after he ran the NCIC check. The officer also said that he did not see any signs that the defendant was impaired; his speech was not slurred and he did not smell of alcohol.

The trial court denied the defendant’s motion to suppress, determining that the officer’s actions did not rise to the level of an unconstitutional stop or seizure. Citing State v. Baez, 894 So.2d 115 (Fla.2004), the court found that Officer Horn was motivated by concerns that the defendant might be in need of assistance after he discovered him sleeping behind the wheel of his car with the motor running in a desolate parking lot. The court reasoned that such a scenario usually indicates some sort of problem, such as intoxication or fatigue, or signals possible danger from carbon monoxide gases from the running motor. The court concluded that the officer acted prudently in ordering the defendant to shut off his engine to protect the safety of the defendant and others. After pleading no contest to felony driving while his license was revoked and violating probation based on the new substantive charge, the defendant filed this appeal.

Defendant does not dispute that Officer Horn was justified in approaching his vehicle to conduct a routine check and engage in a consensual interaction with him. Instead, he challenges the officer’s instruction to turn off the engine as an unreasonable seizure. He argues that the officer’s actions constituted a “show of authority” that turned the consensual encounter into an unlawful detention that was not based on reasonable suspicion of criminal activity. He contends that everything that followed, including asking for his identification and running the computer check, led to discovery of “fruit of the poisonous tree.” The state responds that the officer’s request to shut off the engine did not transform the consensual encounter into a seizure.

“We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review legal issues de novo.” State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008) (citing Thomas v. State, 894 So.2d 126, 136 (Fla.2004)). “When considering a motion to suppress, a court is required to consider the ‘totality of [the] circumstances’ that led to the discovery of evidence.” State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d DCA 2003) (quoting State v. Butler, 655 So.2d 1123, 1128 (Fla.1995)) (alteration in original). “ ‘A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.’ ” Day v. State, 29 So.3d 1178, 1179 (Fla. 4th DCA 2010) (quoting Tenghergen v. State, 9 So.3d 729, 733 (Fla. 4th DCA 2009)).

The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution protect against unreasonable searches and seizures. In deciding this appeal, we must first address whether a seizure occurred: whether the initial consensual encounter between the officer and the defendant escalated into an investigatory stop or seizure when the officer ordered the defendant to turn off his car engine. If the encounter remained consensual, then the Fourth Amendment and our state constitutional provisions are not implicated.

There are three levels of police-citizen encounters. Popple, 626 So.2d at 186; Delorenzo v. State, 921 So.2d 873, 876 (Fla. 4th DCA 2006) (citing Johnson v. State, 785 So.2d 1224, 1226 (Fla. 4th DCA 2001)). The first, involving only minimal police contact, is a consensual encounter. Popple, 626 So.2d at 186. During a consensual encounter, which does not invoke constitutional safeguards, “a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them” and freely leave. Id. The second type of encounter, described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is an investigatory stop, where “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Id. The officer must have “ ‘a reasonable, articulable suspicion that criminal activity is afoot.’ In order to satisfy the reasonable suspicion standard, ‘[t]he officer must be able to articulate more than an” inchoate and unparticularlized suspicion or ‘hunch’ “of criminal activity.’ ” Mitchell v. State, 955 So.2d 640, 642 (Fla. 4th DCA 2007) (quoting Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)) (alteration in original) (internal citations omitted). A concern for officer safety may also establish reasonable suspicion to support an investigatory stop, but “not every ‘consensual encounter may escalate to an investigative stop simply because the officer generally has safety concerns.’ ” Delorenzo, 921 So.2d at 876-77 (quoting Brown v. State, 714 So.2d 1191, 1193 (Fla. 4th DCA 1998)). The third type, an arrest, which is not at issue here, requires probable cause. See Popple, 626 So.2d at 186.

In Popple, the Florida Supreme Court held that an officer’s request that an occupant of a parked car step out of his vehicle was a “seizure” of the occupant requiring reasonable suspicion. Id. at 188. There, the defendant was sitting in a legally parked car in a desolate area when a deputy approached him. Id. at 186. The deputy noticed the defendant acting nervously and making furtive movements, so he asked him to step out of his vehicle for officer safety. Id. When the defendant opened the door, the deputy saw a cocaine pipe in plain view on the floorboard of the car. Id. The officer arrested the defendant and seized the cocaine pipe and several cocaine rocks incident to the arrest. Id. The supreme court quashed the district court’s affirmance of the defendant’s drug convictions and remanded with directions to reverse the convictions. Id. at 188.

Discussing the difference between a consensual encounter and a seizure, Popple stated that “[although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity.” Id. 187-88 (citing State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989)). The court noted that it “has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Id. at 188 (citing Jacobson v. State, 476 So.2d 1282 (Fla.1985)). In reversing the defendant’s drug convictions, the court concluded that “[w]hether characterized as a request or an order ... Deputy Wilmoth’s direction for Popple to exit his vehicle constituted a show of authority which restrained Popple’s freedom of movement because a reasonable person under the circumstances would believe that he should comply.” Id.

Similarly, in this case, Officer Horn’s direction for the defendant to turn off his engine constituted a show of authority which restrained the defendant’s freedom of movement. An order to shut off one’s' car is as much a restraint on movement as an order to step out of the car. Both orders constitute a seizure because they convey to a reasonable person under the circumstances that he or she must comply and is not free to end the encounter and drive away. See Taylor v. State, 658 So.2d 173, 173 (Fla. 5th DCA 1995) (holding that when an officer pulled up behind the defendant, who was parked in a driveway with the motor running, and ordered him to turn off his motor and produce his driver’s license, the defendant was improperly seized and the search that followed was illegal).

Other vehicle-related police conduct found by Florida courts to constitute a seizure or detention include: using a police car to block the path of a car, Stennes v. State, 939 So.2d 1148, 1149 (Fla. 4th DCA 2006); shining a flashlight or spotlight on a defendant’s car, Leroy v. State, 982 So.2d 1250, 1252 (Fla. 1st DCA 2008); displaying a weapon or physically touching the person, State v. Dixon, 976 So.2d 1206, 1209 (Fla. 4th DCA 2008); ordering a driver in a stopped vehicle to roll down his window, Greider v. State, 977 So.2d 789, 792-93 (Fla. 2d DCA 2008); and directing a defendant to remove his hand from his pocket, Delorenzo, 921 So.2d at 876.

We have been unable to find a case on all fours with this one. Other cases involving orders to turn off the car motor have usually contained additional facts and circumstances, such as ordering the defendant out of the caí-, see Delorenzo, 921 So.2d at 878, or blocking the defendant’s path, see Taylor, 658 So.2d at 173. However, as Justice Pariente pointed out in her concurring opinion in Golphin v. State, 945 So.2d 1174, 1197 (Fla.2006) (Pariente, J., concurring), “[tjhere are times when one circumstance among the totality converts what would otherwise be a consensual encounter into a detention.” We conclude that ordering a citizen to shut off the car engine is such a circumstance and that it alone constitutes a seizure.

When police conduct amounts to a seizure, there must be a prior justification in the form of articulable facts and circumstances suggesting criminal activity. All seizures, including those involving only a brief detention, implicate the Fourth Amendment and must be based on a reasonable suspicion of criminal wrongdoing. See Caldwell v. State, 41 So.3d 188, 195 (Fla.2010). It is undisputed that the order to shut off the car engine in this case was not supported by a reasonable suspicion of criminal activity. Officer Horn did not testify about any facts that gave him a well-founded suspicion that the defendant had committed, was committing, or was about to commit a crime. Therefore, we must next decide whether the seizure in this ease was reasonable as based upon some recognized exception for Fourth Amendment purposes.

A temporary detention of an individual may be justified by an officer’s specific concern for his own safety. Terry, 392 U.S. at 30-31, 88 S.Ct. 1868. A traffic stop is an especially dangerous situation for an officer, Michigan v. Long, 463 U.S. 1032, 1048, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), and it would be unreasonable to require police officers to take unnecessary risks in the performance of their duties. Terry, 392 U.S. at 23, 88 S.Ct. 1868. In determining whether an officer acted reasonably under the circumstances, courts must give due weight to the specific reasonable inferences which officers are entitled to draw from the facts in light of their experience and ask whether a “reasonably prudent [person] in the circumstances would [have been] warranted in the belief that his safety or that of others was in danger.” Id. at 27, 88 S.Ct. 1868. Although there may be factual scenarios wherein an officer will have personal safety concerns that justify ordering a motorist to shut off the car, no evidence was presented in this case showing a specific concern for officer safety. Here, there were no furtive movements, nervous reactions, or any circumstances to warrant a belief that the officer’s safety was in danger, and no facts showing that the order to shut down the engine was reasonably necessary to protect the officer’s safety.

A temporary detention may also be based on an officer’s discharge of his “community caretaking” duties. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (stating that local police officers are charged with “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”). In keeping with such community caretaking responsibilities, Officer Horn could properly check the defendant’s status and condition to determine whether he needed any assistance or aid. This type of limited contact has been deemed a reasonable and prudent exercise of an officer’s duty to protect the safety of citizens. Lightbourne v. State, 438 So.2d 380, 388 (Fla.1983). Thus, even without reasonable suspicion of criminal activity, a police officer may detain an individual pursuant to a community care-taking function under' certain circumstances. Commonwealth v. Evans, 436 Mass. 369, 764 N.E.2d 841, 844 (2002) (holding that, where the defendant was pulled over in the breakdown lane at 11:30 p.m. with his right blinker activated, the officer properly exercised his community caretaking function to ascertain whether the defendant needed assistance when he activated his blue lights, pulled up behind the defendant’s car, and requested the defendant’s license and registration); Commonwealth v. Leonard, 422 Mass. 504, 663 N.E.2d 828, 830-32 (1996) (holding that a state trooper was properly performing his duty when he opened the defendant’s unlocked car door after the defendant pulled into the breakdown lane of traffic and failed to respond to the trooper’s attempts to elicit a response from her after he repeatedly knocked on her window; the circumstances suggested that the defendant may have been ill and needed assistance); Tex. Dep’t of Pub. Safety v. Svoboda, No. 04-05-00796-CV, slip op. at 3, 2006 WL 1684793 (Tex.App. June 21, 2006) (holding that, where the defendant was driving twenty miles per hour under the speed limit in the early morning hours and came to a complete stop on the side of the road, the officers properly exercised their community caretaking function in approaching the defendant’s vehicle, as they had a legitimate concern for the defendant’s welfare); White v. State, No. 2-07-234-CR, slip op. at 2-3, 2008 WL 1867139 (Tex.App. Apr.24, 2008) (holding that the officer’s exercise of her community caretaking function was unreasonable, where there was no danger that the defendant could fall asleep while driving and the officer did not express this fear; instead, the officer emphasized that the defendant’s actions were suspicious).

Here, the record is devoid of facts showing that the officer’s instruction to shut off the car was reasonably based on concerns for the defendant’s safety or was necessary to determine if he needed any aid or assistance. Officer Horn testified that he issued the order immediately after approaching the vehicle and awakening the defendant. The order to shut off the car was given after the defendant was awakened and before the officer had developed any facts indicating whether the defendant was in difficulty or distress. The officer conceded that he did not have a reasonable belief that the defendant was suffering from an illness or intoxication. Further, he did not furnish any facts or circumstances which suggested that the defendant was disoriented and might drive forward and strike something in a startled stupor. Officer Horn testified about only a generalized, rather than a specific, concern about potential danger from the running motor. As we held in Delorenzo, the fact that a motorist is asleep in his car with the motor running in an empty parking lot at night does not, without more, provide a reasonable basis for seizing the motorist.

State v. Baez, 894 So.2d 115 (Fla.2004), on which the trial court and the state relied, is distinguishable. There, the officer responded to a report of a suspicious vehicle and discovered the defendant, Robert Baez, slumped over the wheel of a parked van in an abandoned warehouse area at night. Id. at 115. The officer knocked on the window, concerned that Baez, who appeared asleep, might need medical attention. Id. at 115-16. Baez immediately woke up and the officer asked him if he was all right. Id. at 116. Baez opened the door and got out of his car. Id. “The officer did not request or demand that Baez step out of the vehicle.” Id. (emphasis supplied). Baez then gave the officer his driver’s license. When a computer check revealed that Baez had an outstanding warrant, he was arrested. Id. Noting that “Baez left his car on his own volition,” and voluntarily handed over a driver’s license, the court held that Baez was not unreasonably detained while the officer ran a warrants check on his driver’s license. Id. at 116-17.

This case is not controlled by Baez. There, the court emphasized that Baez had voluntarily exited his car before he was asked for the identification he produced. As Justice Wells observed when distinguishing Popple in his concurrence, “there was nothing which converted this consensual encounter and routine law enforcement procedure into a seizure.” Baez, 894 So.2d at 119 (Wells, J., concurring). Here, however, the officer ordered the defendant to turn off his engine before asking for his identification. As we previously explained, the order to turn off the car was a seizure, similar to the order to exit the vehicle in Popple. Because the seizure was not based on a reasonable suspicion of criminal activity or a specific concern for officer safety or the health and safety of the defendant or others, we reverse the trial court’s order denying the motion to suppress and remand for further proceedings.

Reversed and Remanded

WARNER, J., concurs.

MAY, J., dissents with opinion.

MAY, J.,

dissenting.

I respectfully dissent. This is truly a case in which we are called upon to dissect the fine line between what does and does not constitute a “seizure” under the Fourth Amendment and what satisfies the requirement of reasonable suspicion. I simply find myself on the other side of the line drawn by the majority. For the reasons that follow, I would affirm the trial court’s order denying the motion to suppress based on State v. Baez, 894 So.2d 115 (Fla.2004).

Let me start with our supreme court’s decision in Lightbourne v. State, 438 So.2d 380 (Fla.1983). There, the defendant was convicted of first degree murder and sentenced to death. Id. at 383. In his appeal to our supreme court, the defendant argued that his detention by law enforcement prior to his arrest constituted an illegal stop warranting the suppression of evidence seized. Id. at 387.

The court found no constitutional violation when, without probable cause or reasonable suspicion, an officer investigating a citizen’s complaint, approached the vehicle, asked the defendant a few questions, requested his driver’s license, and ran a warrant check. Id. at 387-88. In doing so, the court identified “a distinction between an intrusion by police amounting to a ‘seizure’ of the person and an encounter which intrudes upon no constitutionally protected interest.” Id. at 387.

The initial contact in approaching the vehicle and obtaining the defendant’s identification for the purpose of a warrant check was justified because it was initiated for the purpose of investigating a citizen’s complaint. The court found that “the average, reasonable person, under similar circumstances, would not find the officer’s actions unduly harsh.” Id. Interestingly, the court went on to state: “The implication is that in reality, rather than theory, one who has been so confronted by an officer is not free to leave.” Id. at 388. Nevertheless, the court found that no “stop” or “seizure” occurred prior to law enforcement removing the defendant from the car to conduct the pat-down search. Id.

Ten years later, our supreme court decided Popple v. State, 626 So.2d 185 (Fla.1993). There, the defendant “was sitting in a legally parked car in a desolate area when” he was approached by law enforcement. Id. at 185. After noticing the defendant make “furtive movements,” the officer asked the defendant to exit the vehicle. Id. Our supreme court held that the defendant’s submission to the officer’s show of authority constituted a “seizure” under the Fourth Amendment. Id. at 188. In so holding, the court used the test of whether a reasonable person under the circumstances would feel free to leave. Id. Because the officer did not have reasonable suspicion to justify an investigatory stop, the “seizure” was illegal. Id.

From these two cases, we know that a “seizure” does not occur when an officer requests identification and runs a warrant check. However, if the officer asks the person to exit his car, a “seizure” has occurred. The question then is whether a “seizure” occurs when law enforcement asks a person to turn off his vehicle. I suggest it does not.

Relying on the reasonable person’s feeling of being free to leave, I can find no meaningful distinction between taking a person’s license for a warrant check and asking them to turn off a car while that check is undertaken. Both show a similar level of authority. Our supreme court has consistently found no “seizure” when an officer asks for identification and runs a warrant check. That decision is based on sound reasoning for “ ‘[tjhere is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street.’ ” Lightbourne, 438 So.2d at 387 (quoting Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). I believe the request to turn off the car is no more intrusive than the warrant check and remains outside the confines of a constitutional violation.

Even assuming that a “seizure” took place in this case, I believe reasonable suspicion existed to justify the “seizure” under State v. Baez, 894 So.2d 115 (Fla.2004). There, an officer found the defendant in a “suspicious condition-slumped over the wheel of his van-in a location in which he should not normally have been-a dimly lit warehouse area at night.” Id. at 117. The officer asked for identification; the driver gave the officer his license. Id. The driver then exited his car while the officer inspected the license and ran the warrant check.

Our supreme court held the officer had reasonable suspicion to investigate Baez. “It was not unreasonable for the officer to proceed with the computer check when he had not yet eliminated reasonable concern and justified articulable suspicion of criminal conduct.” Id. But see Taylor v. State, 658 So.2d 173, 173 (Fla. 5th DCA 1995) (officer’s conduct in pulling up behind a vehicle that was about to leave a driveway behind' an apartment complex, ordering the driver to turn off his motor, and asking for his driver’s license constituted an improper seizure).

The only difference between this case and Baez is the officer’s request for the defendant to turn off the car. Given the legitimacy of the officer’s initial encounter with the defendant for community safety, and the officer’s legitimate request for identification and the ability to run a warrant check, I can find no realistic reason to distinguish Baez. I admit that the facts in this case are one degree removed from Baez because of the officer’s request for the defendant to turn off the car. However, I find this degree of difference insignificant.

In my view, the order denying the motion to suppress can be affirmed for one of two reasons. Either, the officer’s request to turn off the car is insufficiently intrusive to constitute a “seizure” under Liglitb-oume or the officer had reasonable suspicion to make the request under Baez. Like the facts in Baez, the officer found the defendant asleep in a car with the engine running in a place he should not have been (a shopping mall in the early morning hours). Further the officer explained that he requested the car be turned off because he feared the defendant, having just woken up, might inadvertently place the car in gear.

Had the officer taken the keys, I might feel differently. I simply cannot find a meaningful difference between taking someone’s license and having the driver turn off the car. In either event, I feel quite certain no driver feels free to leave.

I therefore respectfully dissent and would affirm the trial court’s order denying the motion to suppress.

      . Although the trial court speculated that the danger of carbon monoxide poisoning might have existed during the encounter, the state did not present any evidence regarding the likelihood of such a safety risk.

      . To sustain the state’s position that the officer’s order was a reasonable safety measure, where there were no specific facts indicating a safety risk, would give law enforcement officers authority to routinely order citizens to turn off their motors anytime they are seen sleeping in their cars with the motor running at an unusual time or place.


author: PER CURIAM.

text:
    Joseph H. VARS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2865.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Joseph H. Vars, Miami, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Joseph Vars, challenges a trial court order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. In his rule 3.850 motion, Vars alleged, inter alia, ineffective assistance of trial counsel for failing to advise him that he qualified for habitual felony offender (HFO) sentencing enhancement, and for failing to advise him what the enhancement would be when he was entertaining the first of two plea offers from the State. At that time, the State had not yet filed a notice of intent to seek the HFO sentence enhancement. Vars rejected the original plea offer of five years in prison, electing to proceed to trial. Sometime thereafter, the State filed a notice of intent to seek an HFO sentence, which prompted Vars to accept a plea offer of seven years in prison.

Against this factual backdrop, the trial court conducted an evidentiary hearing on Vars’ claim. Ultimately, the trial court denied the claim, concluding that counsel had no duty to ascertain whether Vars qualified for HFO sentencing enhancement before the State had filed its notice of intent to seek it. This was error. See Lester v. State, 15 So.3d 728, 731 (Fla. 4th DCA 2009).

We therefore reverse the trial court’s order denying Vars’ motion for post-conviction relief, and remand for the trial court to reconvene the evidentiary hearing on the motion from the point prior to entry of the order on appeal. Nothing in this opinion shall be construed to prohibit the defendant and the State from engaging in further plea negotiations.

Reversed and Remanded for Further Proceedings.

WARNER, POLEN and DAMOORGIAN, JJ., concur.

      . Vars raised other claims by amended motion, but they are not the subject of the chai-lenge in his initial brief filed with this court, and thus, they have been abandoned for purposes of this appeal. See Ward v. State, 19 So.3d 1060, 1061 (Fla. 5th DCA 2009).


text:
    Gerald PETION, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3888.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

Gerald Petion sought review of our decision in Petion v. State, 4 So.3d 83 (Fla. 4th DCA 2009), asserting conflict with J.D. v. State, 553 So.2d 1317 (Fla. 3d DCA 1989). In Petion, we affirmed the defendant’s convictions for possession of cocaine with intent to sell and giving false information to a police officer. 4 So.3d at 87. Although we agreed with the defendant that the trial court erred in permitting an officer to testify that it is common for street-level narcotics dealers to hand out contact information to potential buyers, such as their initials and phone numbers on slips of paper similar to those found in the defendant’s vehicle, we concluded that any error was harmless because the trial court was presumed to have disregarded this inadmissible evidence and nothing in the record suggested that the trial judge relied upon this evidence. Id.

The Florida Supreme Court quashed our decision, holding that the presumption that the trial judge disregarded inadmissible evidence in a bench trial can be rebutted by the judge’s express and specific finding of admissibility on the record. Petion v. State, 48 So.3d 726 (Fla.2010). The Court further held that “[wjhen improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume the trial court disregarded evidence that was specifically admitted as proper.” Id. The court remanded the case to us for further proceedings consistent with its opinion.

A review of the record shows that the trial court overruled the defendant’s objection to the officer’s testimony concerning the slips of paper, “[bjased on his training and experience.” The court’s comments and express ruling on the objection rebut the presumption that it disregarded this improper evidence in reaching its decision. Further, the court made no express statement that this improper evidence did not contribute to its final determination. Accordingly, we reverse and remand this case to the trial court for a new trial.

Reversed and Remanded For New Trial.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES and Scott Rubin, Appellants, v. Jason LINDSEY, Appellee.
    Nos. 4D09-4006, 4D09-4149.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 2010.
    Adam M. Balkan of Balkan & Patterson, L.L.P., Boca Raton, for appellant Scott Rubin.
    Joan Carlos Wizel, Stephen Hunter Johnson, and Shaun Koby of Lydecker Diaz, Miami, for appellant Florida Atlantic University Board of Trustees.
    Rhea P. Grossman of Rhea P. Gross-man, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Scott Rubin sued Florida Atlantic University Board of Trustees (FAU) for injuries he sustained in a wrestling accident while participating in an FAU wrestling club practice on campus.

In addition to FAU, Rubin also sued FAU’s wrestling club’s president, Jason Lindsey, alleging he was negligent in failing to inspect the equipment and correct a dangerous condition in the gymnasium where the practice took place, and negligently maintained the equipment by made-quately taping or fastening the wrestling mats together. Rubin alleged the dangerous condition was the proximate cause of his injuries.

After much discovery, Lindsey moved for summary judgment, asserting he was an agent of FAU and that the claim against him was barred by section 768.28(9)(a) Florida Statutes (2008). Lindsey contended that as an agent of FAU, he was entitled to the sovereign immunity exemption of an employee or agent of the state university. The trial court granted the motion for summary judgment, determining there were no material issues of fact that would dispute that Lindsey was an agent of FAU and, therefore, could not be a named party and was entitled to immunity. FAU and Rubin both assert that the trial court erred and that there are genuine material issues of fact that are in dispute, thereby precluding summary judgment. We agree and reverse.

“The standard of review of an order granting summary judgment is de novo.” Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010) (quoting Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005)). Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).

When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, “the nonexistence of a genuine issue of a material fact.” If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.

Bender, 42 So.3d at 894 (quoting Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004)).

Our review of the record reveals that there are genuine issues of material fact as to whether an agency relationship existed between FAU and Lindsey that should be resolved by the trier of fact. We, therefore, reverse the entry of summary judgment in favor of Lindsey and remand for further proceedings.

Reversed and Remanded for FuHher Proceedings.

STEVENSON and DAMOORGIAN, JJ., concur.

      . Section 768.28(9)(a), Florida Statutes, provides:
      No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.


text:
    Jonathan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6007.
    District Court of Appeal of Florida, First District.
    Dec. 28, 2010.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jonathan Williams, Appellant, seeks review of his convictions for second-degree murder and aggravated battery. We find no reversible error in the conviction for aggravated battery. However, because the trial court’s instruction on manslaughter by act was fundamentally erroneous under State v. Montgomery, 39 So.3d 252 (Fla.2010), we reverse and remand for a new trial on the second-degree murder charge.

The trial court instructed the jury as follows on manslaughter:

[T]o prove the crime of manslaughter,] the state must prove the following two elements beyond a reasonable doubt: One, Buddy Eugene Pickett is dead. Two, Jonathan David Williams intentionally caused the death of Buddy Eugene Pickett.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional act[,] it is not necessary for the state to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.

There was no instruction on manslaughter by culpable negligence as in Salonko v. State, 42 So.3d 801, 802 (Fla. 1st DCA 2010), and Appellant did not specifically agree to the erroneous instruction as in Joyner v. State, 41 So.3d 306, 307 (Fla. 1st DCA 2010).

Based on the holding in State v. Montgomery, 39 So.3d at 257, the trial court’s instruction on the elements of manslaughter was incorrect, as it improperly suggested that the defendant was required to have an intent to kill the victim before being convicted of manslaughter. The Montgomery court held that this error was fundamental because it deprived the jury of its inherent “pardon” power by foreclosing a conviction of the lesser-ineluded offense one step removed from the crime of conviction if the jury did not believe the defendant intended to kill the victim, given that the crime of conviction required no intent to kill, while the instructions at issue indicated that intent to kill was an element of the lesser-ineluded offense one step removed. 39 So.3d at 259.

This case requires us to consider whether the trial court’s instruction that it was “not necessary for the state to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death” cured the defect in the instruction on the elements of manslaughter. This precise issue was recently decided in Riesel v. State, 48 So.3d 885 (Fla. 1st DCA 2010), and Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010). Riesel held that the instructions at issue were not materially distinguishable from the instructions given in Montgomery, 39 So.3d at 258, and the Pryor Court followed suit, 48 So.3d 159, 161. Based on those cases, we reverse and remand for a new trial on the second-degree murder charge only.

REVERSED and REMANDED.

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


author: GERBER, J.

text:
    Andrew L. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2875.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The issue presented is whether the circuit court erred by denying the defendant’s motion to withdraw his plea. We find that the court did not err primarily because the record conclusively refutes the defendant’s allegation that his plea was involuntary. Therefore, we affirm.

The state charged the defendant with possession of marijuana in an amount exceeding twenty grams. The probable cause affidavit alleged that when the police stopped the defendant’s vehicle, the police found the defendant smoking a marijuana cigarette while in possession of over twenty grams of marijuana.

At a hearing, the defendant notified the court that he wished to plead no contest and accept the state’s offer of a withhold of adjudication and eighteen months of. probation. The defendant asked the court if it would accept, the plea agreement. The court responded, “I’m not going to agree to withheld (sic).... I don’t have a problem with no jail time today, but he definitely is going to be adjudicated guilty.... He will lose his driver’s license for two years.” The defendant replied, “That’s fine.” After the court conducted a plea colloquy, the defendant entered his no contest plea. The court then stated, “He is going to be adjudicated guilty. He is going to lose his driver’s license privilege for two years.” The court then ordered one year of probation with the conditions that the defendant not use alcohol or illegal drugs and that the defendant be tested for alcohol and drugs. The following exchange then occurred:

DEFENDANT: Your Honor ... [considering that I use my vehicle to run my business, is there any way I could—
THE COURT: You shouldn’t be driving a vehicle. I’m sorry. Have someone drive you there.
DEFENDANT: I understand.
THE COURT: Last thing I want you to do is lose your license, but when you have the nerve to be smoking dope and driving, that’s a no, no.

Within thirty days after rendition of the sentence, the defendant filed a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(Z), which states:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

The ground upon which the defendant sought to withdraw his plea was that his plea was involuntary, as specified in rule 9.140(b)(2)(A)(ii)c. The motion explained, in pertinent part:

... As a result of his plea, [the defendant’s] license was suspended and [the defendant] has been unable to procure a hardship license.
[The defendant] claims that his plea ... was not knowingly and voluntarily entered in that he did not understand the “direct” consequences of entering a plea to the charge of Felony Possession of Marijuana. [The defendant] would like an opportunity to further explain to the Court that he was unaware of the parameters of the driver’s license suspension that occurred as a result of his plea. Based on [the defendant’s] assertions, attorneys from the Public Defender’s office would likely become witnesses in the hearing on [the defendant’s] Motion to Withdraw his Plea.
Therefore, [the defendant] requests that this Court enter an Order removing the Public Defender’s office from representing him and enter an Order setting this Motion to Withdraw Plea for hearing.

The record does not indicate that the circuit court ever set the motion for hearing. Instead, the next action in the record occurred two months later, when the court entered an order granting in part the defendant’s motion to modify his probation. After that order, the next action in the record occurred six months later, when the court entered an order granting the defendant’s motion to terminate his probation. Ten months after that order, the defendant filed a pro se notice of appeal of his judgment and sentence. This court dismissed that appeal as untimely.

Six months later, the circuit court entered a written order denying the defendant’s motion to withdraw plea. The record does not indicate how the court came to review the motion at that time. In any event, the court did not refer to the plea hearing as its basis for denying the motion. Instead, the court referred to the facts that, after filing the motion, the defendant obtained a modification of his probation, obtained the termination of his probation, and then filed an appeal which this court dismissed. The circuit court also noted that “[t]he case and sentence are closed and over.” These facts led the court to find that the defendant “waived or abandoned his motion and, further, the motion is moot.”

This appeal followed. The defendant argues that the court erred by summarily denying his motion. He argues more specifically that an evidentiary hearing is required to determine if his counsel affirmatively misadvised him regarding the license suspension. As for the circuit court’s findings that the defendant waived or abandoned his motion and that the motion was moot, the defendant responds merely by way of a footnote at the end of his brief. In the footnote, the defendant states:

The filing of a notice of appeal before a ruling is rendered on a motion to withdraw a plea filed under rule 3.170(0 does not waive or abandon the motion. [See] Fla. R. App. P. 9.020(h). Although [the defendant’s] term of probation expired before his motion was ruled upon, because his plea resulted in a felony conviction and the motion was addressed to the conviction, not the sentence, it cannot be said that his motion was moot.

We review the circuit court’s denial of the motion to withdraw plea for abuse of discretion. See Johnson v. State, 971 So.2d 212, 214 (Fla. 4th DCA 2008) (“Denial of a motion to withdraw plea is reviewed for abuse of discretion.”).

The record is insufficient to allow us to determine whether the circuit court abused its discretion in finding that the defendant waived or abandoned his motion to withdraw plea. The record does not contain the motions or transcripts of the hearings which led the court to modify and later terminate the defendant’s probation. Thus, we do not know whether the defendant, at either of those hearings, notified the court that he was waiving or abandoning his motion to withdraw plea. Conversely, we are not prepared to say that the defendant’s motions to modify and later terminate his probation automatically should be deemed as waivers or abandonment of his motion to withdraw plea.

We agree with the defendant that the circuit court should not have deemed his filing of a notice of appeal as a waiver or abandonment of his motion to withdraw plea. See Fla. R. App. P. 9.020(h)(3) (2009) (“[A] motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt.”). We also agree with the defendant that the court should not have found the motion to be moot because “[t]he case and sentence are closed and over.” Because the conviction remains on the defendant’s record, the motion was not moot.

Given the possibility that the circuit court erred in its findings, we have reviewed the record to determine whether there is any other theory or principle of law in the record which would support the ruling. See Robertson v. State, 829 So.2d 901, 906 (Fla.2002) (“ ‘[E]ven though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling.’”) (citation and emphasis omitted).

We find that there are three theories or principles of law which support the ruling. First, at the time the defendant entered the plea, our supreme court had held that neither defense counsel nor a trial court was required to inform a defendant about mandatory license suspension or revocation before entry of a plea because such actions are not punishment and therefore not direct consequences of a plea. Bolware v. State, 995 So.2d 268, 275-76 (Fla.2008). Although the court in Bolware went on to direct that Florida Rule of Criminal Procedure 3.172 be amended to require that a trial court inform a defendant that a plea may result in mandatory license suspension or revocation, that amendment was to apply only 'prospectively. 995 So.2d at 276.

Second, even if a trial court had been required to inform a defendant about mandatory license suspension before entry of a plea, the record here conclusively shows that the court provided such information. The court told the defendant that if he entered a plea, he “will lose his driver’s license for two years.” The defendant replied “[tjhat’s fine” and entered his plea. After the defendant entered his plea, the court immediately stated, “He is going to lose his driver’s license privilege for two years.” The defendant then asked “is there any way I could [drive a vehicle]?” The court responded, “You shouldn’t be driving a vehicle. I’m sorry. Have someone drive you there.” The defendant replied, “I understand.” A defendant is bound by his sworn answers during a plea colloquy. Iacono v. State, 930 So.2d 829, 831 (Fla. 4th DCA 2006). Because these record excerpts conclusively show that the defendant is entitled to no relief, the court was not required to conduct an evidentiary hearing on the defendant’s motion to withdraw plea. See Nelfrard v. State, 34 So.3d 221, 222-23 (Fla. 4th DCA 2010) (“When a defendant files a facially sufficient motion to withdraw plea under rule 3.170(/,), due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief.”).

Third, the defendant’s argument in this appeal regarding affirmative misad-vice was unpreserved in the circuit court. The defendant did not expressly allege affirmative misadvice in his motion to withdraw plea and has yet to allege what that affirmative misadvice was. In Bach v. State, 953 So.2d 22 (Fla. 4th DCA 2007), we held that a claim of affirmative misad-vice cannot be entertained for the first time on a motion for rehearing in the trial court. Id. at 23. Logically, such a claim cannot be entertained for the first time on appeal either. Although the defendant may claim that his motion’s request to remove his counsel was intended to suggest affirmative misadvice, we believe that such a request also could apply to an omission of advice, which Bolware held was not a cognizable basis for relief. 995 So.2d at 275-76.

For the foregoing reasons, we affirm the circuit court’s denial of the defendant’s motion to withdraw plea.

Affirmed.

GROSS, C.J., and TAYLOR, J., concur.


author: ALTENBERND, Judge.

text:
    Daniel F. CONNORS, Jr., and Delbert Watson, Appellants, v. LAKE DEXTER WOODS HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D09-5382.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.
    Stephen F. Baker, Winter Haven, for Appellants.

      Robert C. Chilton and T. Bradshaw Henry of Sharit, Bunn & Chilton, P.A., Winter Haven, for Appellee.
   ALTENBERND, Judge.

Daniel F. Connors, Jr., and Delbert Watson appeal an order granting a permanent injunction in favor of the Lake Dexter Woods Homeowners Association, Inc. The injunction finds the long-standing conduct of Mr. Watson, a developmentally disabled person, to constitute a nuisance. It enjoins Mr. Watson from engaging in the conduct and further requires Mr. Connors, as Mr. Watson’s guardian advocate, to take all reasonable steps to prevent Mr. Watson from violating the injunction. We affirm the injunction with considerable reluctance and write to emphasize that, in any enforcement proceeding based on this injunction, the homeowners association should be required to establish willful and intentional violations.

Mr. Connors has lived in this neighborhood since 1987. Until a few years ago, he lived with his father. His father developed a friendship with Mr. Watson, who is developmentally disabled, and brought him into the home. After his father died, Mr. Connors became the guardian advocate for Mr. Watson.

Mr. Watson is over forty years old and has an “angry” personality. He uses “vulgar, vile, abusive and rude language” in a loud manner in the neighborhood. Although he has never carried out any act of violence against anyone in the neighborhood, he has threatened to hurt people. He drives his car in a threatening and aggressive manner toward pedestrians in the neighborhood. He has also been abusive to prospective homebuyers and guests in the neighborhood. It is clear that the neighborhood is afraid of Mr. Watson and views him as a tragedy waiting to happen. The homeowners association filed this action to establish that his conduct violates the Declaration of Covenants, Conditions and Restrictions governing the neighborhood.

Mr. Watson has not been declared legally incapacitated. His exact mental status is not well established in the record. However, the circuit court has declared him “a person with a developmental disability” pursuant to section 393.12(1), Florida Statutes (2008), and appointed Mr. Connors as his “guardian advocate” under section 393.12(2).

Section 393.12(8) requires a court to enter a detailed order when it appoints a guardian advocate. In the order, the court must include:

(a) The nature and scope of the person’s lack of decisionmaking ability;
(b) The exact areas in which the individual lacks decisionmaking ability to make informed decisions about care and treatment services or to meet the essential requirements for his or her physical health and safety;
(c) The specific legal disabilities to which the person with a developmental disability is subject;
(d) The name of the person selected as guardian advocate and the reasons for the court’s selection; and
(e) The powers, duties, and responsibilities of the guardian advocate, including bonding of the guardian advocate, as provided in s. 744.351.

§ 393.12(8).

The order appointing Mr. Connors as guardian advocate was introduced into evidence. It does not contain the information that the statute requires and simply gives Mr. Connors “full power to exercise all delegable legal rights and powers of’ Mr. Watson and “to have the care, custody and control of’ him.

This order establishing the guardian advocacy, of course, is not on appeal in this case. We address it because the injunction determines that Mr. Watson’s developmental disability is “no excuse for allowing the nuisance or violation of the Declaration to continue unabated.” Based on this record, we conclude that the trial court’s determination is supported by competent, substantial evidence, but the evidence concerning Mr. Watson’s status could be far more complete.

The extent to which Mr. Watson can consistently control his own behavior is not well established in this record. What exactly Mr. Connors can do to fulfill his obligation to “exercise all reasonable care to prevent” Mr. Watson from violating this injunction is unclear. It seems unfortunate that an injunction became the tool necessary to address this neighborhood’s problem, and we have some doubt about the efficacy of an injunction as a solution to the problem. But we conclude we have no authority to vacate the order. As a result, Mr. Connors now has a $47,000 judgment for attorneys’ fees entered against him for unsuccessfully defending his developmentally disabled friend and will have another judgment entered against him for the fees associated with this appeal.

Affirmed.

WALLACE and LaROSE, JJ., Concur.


author: DAMOORGIAN, J.

text:
    Jimmie L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2268.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.

      Jimmie L. Smith, Moore Haven, pro se.
    No appearance required for appellee.
   DAMOORGIAN, J.

Jimmie Smith appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm the trial court’s order and write to address our concern over Smith’s overuse and abuse of the post-conviction process.

In order to put our concern in perspective, the following case history is provided. In May 2001, Smith pleaded no contest to delivery of cocaine, possession of cocaine with intent to deliver/sell and resisting without violence in Broward Circuit Court case no. 00-15221 CF10A. He was sentenced to two years in prison followed by three years of probation. Smith violated the terms and conditions of his probation. In 2003, Smith’s probation was reinstated with modified terms and conditions. Smith violated probation a second time by picking up a charge for armed robbery with a firearm filed under case no. 04-5443 CF10A. He was also charged with another robbery with a firearm in case no. 04-5852 CF10A.

In 2004, Smith pleaded guilty to these new law violations and admitted to violating the terms of his probation in case no. 00-15221 CF10A. He was sentenced to: (a) a total of fifteen years in case 00-15221 CF10A; (b) fifteen years and one day as an habitual felony offender (HFO) in case 04-5443 CF10A, with a fifteen-year mandatory minimum as a prison releasee reof-fender (PRR); and (c) fifteen years and one day in prison as an HFO with a fifteen-year mandatory minimum as a PRR in case 04-5852 CF10A. The sentences were ordered to be served concurrently.

Smith moved to withdraw his pleas in 2004 pursuant to Florida Rule of Criminal Procedure 3.170(f), which the trial court denied that same year. In 2005, Smith filed his first motion for post-conviction relief under rule 3.850, raising five claims of ineffective assistance of trial counsel. The trial court summarily denied relief in 2006, and Smith appealed that order of denial. We per curiam affirmed the trial court’s order. Smith v. State, 940 So.2d 439 (Fla. 4th DCA 2006).

Smith also filed a habeas corpus petition in the trial court, arguing that the trial court lacked subject matter jurisdiction over him because the probable cause affidavit and affidavit to arrest were deficient. The trial court denied the petition in 2008. Smith appealed that denial to this court, and we per curiam affirmed the trial court’s order. Smith v. State, 4 So.3d 1240 (Fla. 4th DCA 2009).

Next, in 2008, Smith filed a second motion under rule 3.850, alleging a myriad of claims in connection with his convictions and sentences in the 2004 cases. These claims included: (1) the convictions were the product of fraudulent testimony by one of the investigating detectives; (2) Smith would not have entered his plea to the State’s offer of fifteen years if it were not for that fraudulent statement; (3) the assistant state attorney made false statements in his oath supporting the information filed in the 2004 charges; (4) the trial court lacked subject-matter jurisdiction to prosecute due to the fraudulent arrest affidavit; and (5) the trial court lacked subject-matter jurisdiction to prosecute him in the 2004 cases where the oaths supporting the informations were fraudulent.

The State’s response argued that the motion was patently untimely since the convictions and sentences became final in 2004. Moreover, Smith did not allege any of the grounds for exemption from rule 3.850(b)’s two-year time bar. The State also argued that the motion was successive, that Smith had previously raised many of these same grounds in his previous motions, and that his challenges were waived by virtue of his pleas to the offenses charged.

Our review of Smith’s extensive post-conviction litigation history leads us to the inescapable conclusion that Smith knew he was raising many challenges which could have been raised in his prior motion, and that his challenges were largely waived by virtue of his pleas. See Stano v. State, 520 So.2d 278, 280-81 (Fla.1988). Also, he knew or should have known that his most recent rule 3.850 motion was untimely.

We have previously sanctioned serial post-conviction relief litigants who file successive motions which abuse the post-conviction process. See McCutcheon v. State, 44 So.3d 156, 161-62 (Fla. 4th DCA 2010). We strongly caution Smith against future motions, petitions or appeals raising the same challenges to his convictions and sentences in these cases. Such future attempts will be met with referral to the appropriate institution for consideration of disciplinary procedures which may include forfeiture of gain time, see § 944.279(1), Fla. Stat. (2009), and issuance of an order to show cause why further sanctions barring pro se filings should not be imposed as well under State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999).

Affirmed.

WARNER and MAY, JJ., concur.


text:
    Loreto G. FETTA, Appellant, v. ALL-RITE PAYING CONTRACTORS, INC., a Florida corporation, Appellee.
    No. 4D09-2708.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.

      Stephen Karaski, Pompano Beach, for appellant.
    Rod A. Feiner of Coker & Feiner, Fort Lauderdale, for appellee.
   GERBER, J.

The circuit court entered a final judgment in favor of the appellee contractor on its lien foreclosure action against the appellant owner. In this appeal, the owner argues that the contractor did not satisfy a statutory condition precedent of identifying an unpaid material supplier in the contractor’s final payment affidavit. We find, pursuant to section 713.06(3)(d)l., Florida Statutes (2007), that the contractor did not need to identify the material supplier in the affidavit because the material supplier did not serve a notice to owner. Therefore, we affirm.

Section 713.06(3)(d)l. provides, in pertinent part:

When the final payment under a direct contract becomes due ...:

1. The contractor shall give to the owner a final payment affidavit stating, if that be the fact, that all lienors under his or her direct contract who have timely served a notice to owner on the owner and the contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished....
The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. ...

§ 713.06(3)(d)l., Fla. Stat. (2007) (emphasis added).

According to the owner, the contractor did not comply with section 713.06(3)(d)l. because the contractor’s final payment affidavit did not identify the contractor’s material supplier, which filed its own lien against the owner. The circuit court rejected the owner’s argument. The court reasoned that the owner was in privity with the material supplier and, therefore, the owner was on notice of its obligation to pay the material supplier.

We agree with the owner that no competent, substantial evidence exists to support the circuit court’s reasoning that the owner was in privity with the material supplier. Despite this wrong reasoning, however, we find that the circuit court still reached the right result. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). Competent, substantial evidence exists to support the conclusion that the material supplier never served a notice to owner on the owner, and the plain language of section 713.06(3)(d)l. requires that the contractor identify only lienors “who have timely served a notice to owner on the owner.” Therefore, the contractor was not required to identify the material supplier in the final payment affidavit.

The owner cites to Craftsman Contractors, Inc. v. Brown, 695 So.2d 750 (Fla. 1st DCA 1997), for the proposition that a contractor’s final payment affidavit must identify all lienors, regardless of whether the lienors timely served a notice to owner. Id. at 751. We find that the owner’s reli-anee on Craftsman is misplaced. The first district decided Craftsman based on a pre-1998 version of section 713.06(3)(d)l. The pre-1998 version merely stated, in pertinent part, that “[t]he contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full.” In 1998, the legislature amended section 713.06(3)(d)l. to insert language that “[t]he contractor shall give to the owner a final payment affidavit stating, if that be the fact, that all lienors under his or her direct contract who have timely served a notice to owner on the owner and the contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full.” (emphasis added). In light of the amendment, we question whether Craftsman remains viable precedent for the proposition that a contractor’s final payment affidavit must identify lien-ors who have not served a notice to owner.

At oral argument, the owner sought to overcome its citation to Craftsman by relying upon the second clause in section 713.06(3)(d)l. That clause states, in pertinent part, “or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full.” Because that clause does not include the first clause’s reference to lienors “who have timely served a notice to owner,” the owner argues that, with respect to unpaid lienors, the contractor must identify those lienors regardless of whether they timely served a notice to owner or not.

We disagree. Another amendment which the legislature made to section 713.06(3)(d)l. in 1998 was to insert the word “such” into the second clause so that the clause reads “or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full.” (emphasis added). The phrase “each such lienor” plainly refers back to the first clause’s reference to “lienors under his or her direct contract who have timely served a notice to owner on the owner and the contractor.” Thus, the purpose of the second clause is to require contractors to identify all lienors “who have timely served a notice to owner” and who have not been paid in full.

Even if the contractor negligently omitted the material supplier from the final payment affidavit, the lien still would be valid here. Yet another amendment which the legislature made to section 713.06(3)(d)l. in 1998 was to insert the statement that “the negligent inclusion or omission of any information in the affidavit which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien.” We find competent, substantial evidence in the record to support the conclusion that the contractor’s omission of the material supplier from the final payment affidavit did not prejudice the owner here.

We reject the owner’s remaining arguments without further comment.

Affi'rmed.

TAYLOR, J., and ROSENBERG, ROBIN, Associate Judge, concur.