author: POLEN, J.

text:
    CITY OF WEST PALM BEACH, Appellant/Appellee, v. Olenza ROBERTS and Venita Roberts, Appellees/Appellants.
    Nos. 4D09-1028, 4D09-2142, 4D10-1963.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      Lisa M. Fedynyshyn-Conforti, Assistant City Attorney, West Palm Beach, for City of West Palm Beach.
    Michael D. Brown and Valencia Y. Stubbs of Brown and Associates, P.A., Riviera Beach, for Olenza and Venita Roberts.
   POLEN, J.

The City of West Palm Beach appeals the amended final judgment of the trial court, finding that the City’s demolition of a structure owned by the Robertses constituted a taking for which the Robertses were entitled to compensation. The Rob-ertses timely appeal the trial court’s order, granting the City’s motion to quash their complaint for writ of mandamus. We find the trial court correctly determined that the Robertses were not afforded proper notice; consequently, we hold the Roberts-es are entitled to compensation from the City for the City’s act of demolishing their structure. We further hold that because execution on the judgments was automatically stayed by the City’s filing of a notice of appeal, the trial court did not err when it granted the City’s motion to quash the Robertses complaint for a writ of mandamus.

The City abates a public nuisance pursuant to the City of West Palm Beach Florida 2002 Amendments to the Standard Unsafe Building Abatement Code, 1985 Edition, Ordinance No. 3522-02 (USBAC). Section 101.2, USBAC, authorizes the City to protect the public safety, health and general welfare of the public by protecting against unsafe buildings, structures or premises in the City. Section 301.1.1, US-BAC, requires the building official to inspect, or cause to be inspected, any building, structure or portion which is, or may be, unsafe; once such a finding is made, he is mandated to initiate proceedings to cause the abatement of the unsafe condition by repair, vacation and/or boarding and securing, or demolition or combination thereof. Section 201.11, USBAC, establishes the criteria for when a building and/or structure is considered “unsafe.”

The Robertses owned a small wood-framed house (structure) located in a “historic district” of West Palm Beach. A fire occurred in the structure in 2002, resulting in smoke damage to the interior. In September 2002, the Robertses obtained a permit to repair the damage caused by the fire and performed an interior demolition of the structure, removing a significant portion of the structure’s interior to rectify the damage the fire had caused. After commencing work on the structure, the Robertses discovered that additional work, beyond the scope of the original permit, was needed; as a result, they stopped work, obtained a boarding permit, and secured the property by boarding the windows and doors. The discovery of the additional damage required them to create a comprehensive building plan to remodel the entire house. Because the structure was located in a “historic district,” the City’s permitting process required the Robertses to submit the building plans to the City’s Historic Preservation Planning Division (Historic) of the planning department as a condition precedent to obtaining a building permit for the renovation of the entire structure.

In May 2004, the City’s Building Official inspected the structure and declared it to be unsafe and a public nuisance under the USBAC. Thereafter, Historic approved the modified construction plans submitted by the Robertses and issued them a “certificate of appropriateness” on May 10, 2005, which would have allowed the Rob-ertses to obtain a building permit for the complete renovation of the house. According to the Robertses, during the entire time that they were involved in the permitting process, the structure remained boarded and secured. The Robertses also maintained they did not receive notice that the structure was unsafe or that the City was contemplating demolishing the structure. When the City started demolition proceedings, Historic issued a “do not demolish” order in response. Neal Melick, the City’s chief building official, issued an “override” order to Historic on March 5, 2005, which resulted in the demolition of the structure. Thus, after the Robertses obtained the “certificate of appropriateness” from Historic, but before they obtained the final building permit, the City demolished the structure on August 5, 2005.

After learning that the structure was demolished, the Robertses sued the City for inverse condemnation, claiming that a “taking” had occurred when the City demolished the structure. Following a bench trial, an order was entered by the trial court on March 27, 2008, stating, in pertinent part:

Based upon the testimony and evidence presented, the Court is not convinced that the City provided Plaintiffs with the proper notice required after the building official made a determination to demolish the structure. It makes no sense that an owner who is pursuing permits on the very structure at issue would not contact the City, if notice was given, or to pursue additional remedies. It is noted that a “taking” may consist of an entirely negative act, such as destruction. Kirkpatrick v. City of Jacksonville, 312 So.2d 487 [, 490] (Fla. 1st DCA 1975).

Following a jury trial on damages, the trial court entered a final judgment on February 11, 2009, which incorporated the March 27, 2009 interlocutory order. On November 23, 2009, the Robertses filed a complaint for writ of mandamus, seeking to compel the City to satisfy the judgments. After a hearing, the trial court dismissed the Robertses’ complaint. This appeal followed.

“A trial court’s finding of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, substantial evidence.” Dep’t of Agric. & Consumer Servs. v. Bogorff, 35 So.3d 84, 89 (Fla. 4th DCA 2010) (citing Atl. Int’l Inv. Corp. v. State, 478 So.2d 805, 808 (Fla.1985)). Section 302.1.4, USBAC, provides: .

The notice shall be served either personally or by certified mail, postage prepaid, return receipt requested, to each person at the address as it appears on the official public records. If addresses are not available on any person required to be served the notice, or in the event a notice sent by either registered or certified mail shall be returned undelivered, the building official shall publish a notice of condemnation once (1) a week for four (4) consecutive weeks in a newspaper of general circulation within the City of West Palm Beach and shall mail a notice addressed to such person to the address of the building or structure involved in the proceedings. A copy of such notice(s) and order(s) shall be posted in a conspicuous place at city hall or the courthouse and upon the dwelling or structure involved. The failure of any person to receive notice, other than the owner of record, shall not invalidate any proceedings under this section. Service by certified or registered mail as herein described shall be effective on the date the notice was received as indicated on the return receipt. [Emphasis added].

Here, the trial court found that the City had not sent the proper notice to the Robertses. Thus, the Robertses had been denied the opportunity to contest the finding that the structure was unsafe and required demolition. Competent substantial evidence supports that conclusion, as no evidence showed that when the certified letters to the Robertses were returned unclaimed, a notice was sent by regular mail, as required by the ordinance. Mr. Roberts testified that he had not received any notice, nor did he see a notice of posting on the structure. While the City offered evidence of substantial compliance, the Robertses’ evidence supported the trial court’s findings. Because the City failed to properly notice the Robertses of them decision to demolish, the Robertses had no opportunity to contest the proceedings and prevent destruction of the structure, all the while they were working with Historic to restore the structure.

The City argues that the lower court improperly allowed evidence concerning the propriety of the City’s actions in demolishing the structure and improperly considered this evidence in making its determination that a taking occurred. In Atlantic International Investment Corp. v. State, 478 So.2d 805 (Fla.1985), the supreme court held that “the propriety of the agency action must be finally determined before a claim for inverse condemnation exists,” and “once a party agrees to the propriety of the action and chooses the circuit court forum, it is estopped from any further denial that the action itself was proper.” Id. at 807-08 (citing Albrecht v. State, 444 So.2d 8, 12-13 (Fla.1984)). The Florida Supreme Court affirmed this principle in Department of Agriculture & Consumer Services v. Polk, 568 So.2d 35, 38 (Fla.1990): “[T]he propriety of an agency’s action may not be challenged in an inverse condemnation proceeding.” Id. at 38 (citing § 253.763(2), Fla. Stat. (1985); Dep’t of Agric. & Consumer Servs. v. Mid-Fla. Growers, Inc., 521 So.2d 101, 103 n. 1 (Fla.), cert. denied, 488 U.S. 870, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988)). In Janson v. City of St. Augustine, 468 So.2d 329, 330 (Fla. 5th DCA 1985), the Fifth District held:

Although a challenge to the administrative decision via appeal does not extinguish a suit for inverse condemnation at the conclusion of the appeal, Albrecht, a filing of an inverse condemnation suit forecloses a party from challenging the correctness of an administrative decision. Key Haven [Associated Enters., Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982) ].

However, the doctrine of exhaustion of administrative remedies is a judicial doctrine which must yield where a party’s constitutional rights are infringed in such a manner that the party has no administrative remedy. See State Dep’t of Envtl. Prot. v. PZ Constr. Co., 633 So.2d 76 (Fla. 3d DCA 1994). The Robertses were never properly notified of the City’s intent to demolish. Consequently, the Robertses were denied the opportunity to contest the finding that the structure was unsafe and required demolition. As such, we hold that the trial court properly determined, in the inverse condemnation action, whether a “taking” had occurred and whether the Robertses were afforded proper notice. We further hold that the record supports the trial court’s findings as to both issues.

Finally, the Robertses appeal the trial court’s order granting the City’s motion to quash their complaint for a writ of mandamus. Based on the City’s filing of notices of appeal in connection with the two final judgments entered by the trial court, execution on the judgments was automatically stayed. Thus, the trial court properly granted the City’s motion to quash. See Fla. R.App. P. 9.310(b)(2) & (e); St. Lucie Cnty. v. N. Palm Dev. Corp., 444 So.2d 1133, 1134-35 (Fla. 4th DCA 1984) (“It is apparent that [rule 9.310(b)(2) ] intends that adverse judgments appealed by a governmental agency are automatically stayed.”).

Affirmed.

WARNER, J., and EHRLICH, MERRILEE, Associate Judge, concur.

      . This court consolidated the bifurcated inverse condemnation case, from which the City appeals, with the Robertses’ suit for mandamus, from which the Robertses appeal.

      . At this time, Mr. Roberts was employed as the project manager for Lance Concrete, a state-certified general contractor, which specializes in residential rehabilitation, and which later became the contractor of record for all repairs made to the structure.

      .The interior demolition included the removal of the plumbing, the partition and interior dividing walls, the ceiling, the drywall, and the existing floor. As a result of the interior demolition, the structure was uninhabitable.

      . This certificate advised: "You may now proceed with the routine building permit process through the building division.”

      . In subsequent orders, the trial court awarded the Robertses $36,066, plus statutory interest, in compensation for the taking; $8,833.83 in costs; $72,786 in attorney's fees; and $3,840 in expert witness costs.

      . The trial court also found that based upon the building inspector’s testimony and onetime inspection from the outside of the structure, it was not clear from the evidence presented that the structure was unsafe. This finding is also supported by competent substantial evidence. Although the building official and his inspector testified as to the conditions that allegedly made the structure "unsafe,” the trial judge, as the trier of fact, found the evidence insufficient to support the City's contention that the structure was actually "unsafe.” The trial court was in the best position to weigh the evidence. We decline to reweigh this evidence on appeal, as the record demonstrates that competent substantial evidence supports the trial court's findings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Keith KNESPLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3521.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

After pleading guilty to burglary of a structure, appellant was sentenced to five years in prison followed by two years of probation, with restitution as a condition of probation. The parties agreed that the amount of restitution would be determined within sixty days. Appellant was not present at the restitution hearing when restitution above an agreed amount was imposed. As the State correctly concedes, the trial court improperly held the restitution hearing without a showing that appellant voluntarily waived his right to be present.

A defendant has the constitutional right to be present at a restitution hearing. C.C.N. v. State, 1 So.3d 1151, 1152 (Fla. 2d DCA 2009). Although a defendant may waive this right and exercise constructive presence through counsel, the court must determine that the defendant’s waiver is knowing, intelligent, and voluntary. See M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006); see also Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998).

Accordingly, we reverse and remand for a new restitution hearing.

TAYLOR, HAZOURI and LEVINE, JJ., concur.

      . The trial court mistakenly believed that counsel had waived appellant’s appearance at the restitution hearing.


text:
    Anthony Howard GATES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5212.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Anthony Howard Gates, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    John JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5210.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    John Joseph, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Reginald BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5172.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Reginald Baker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    James RICHARDSON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5168.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    James Richardson, Jr., pro se, Petition-
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Johnnie L. BATTLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5131.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Johnnie L. Battles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Terrell D. HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5129.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Terrell D. Hunter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Cedric D. DOLES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5111.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Cedric D. Doles, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Jerry CRISMON, Petitioner, v. STATE of Florida/DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D11-4768.

    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Jerry Crismon, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: VILLANTI, Judge.

text:
    Daniel Brian EMMERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1592.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2011.
    Daniel Brian Emmert, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Daniel Brian Emmert appeals the summary denial of three of the claims he raised in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of claims one and seven without further discussion. As to claim 8(b), however, we reverse and remand with instructions to the postconviction court to give Emmert an opportunity to amend this claim if he can do so in good faith.

Emmert was convicted of armed burglary, arson, and burning to defraud in connection with a fire that occurred at his place of employment. In claim 8(b) of his motion for postconviction relief, Emmert asserted that his trial counsel provided ineffective assistance by failing to properly investigate alleged inconsistencies in the various pretrial statements given by State’s witness Patsy Storey. Emmert alleged that this failure resulted in trial counsel being unable to effectively cross-examine Storey during trial concerning these alleged inconsistencies. However, Emmert’s motion failed to identify any of the alleged inconsistencies at issue.

The postconviction court ordered the State to respond to this claim. In its response, the State contended that the claim was facially insufficient because it did not identify the inconsistencies that trial counsel allegedly failed to investigate. After considering the State’s response, the postconviction court denied claim 8(b) as facially insufficient without providing Em-mert with an opportunity to amend the claim.

In this appeal, Emmert contends that he should have been given leave to amend claim 8(b) pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). Spera holds that a postconviction court abuses its discretion if it fails to permit a defendant at least one opportunity to amend a facially insufficient claim in a motion for postconviction relief. Id. at 761. Here, the postconviction court found that claim 8(b) was facially insufficient because it did not identify the inconsistencies about which Emmert was complaining. Having made this finding, the postconviction court should have stricken this claim with leave to amend pursuant to Spera. Instead, it summarily denied the claim, which was an abuse of discretion. Therefore, on this single claim, we reverse and remand for the postconviction court to strike this claim and give Emmert leave to amend it, if he can do so in good faith, for a period not to exceed thirty days. Id. at 761-62.

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

SILBERMAN, C.J., and CASANUEVA, J., Concur.


text:
    Justin WESCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2271.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Justin Wescott, challenges his convictions for grand theft, burglary of a structure, and providing a false name to a law enforcement officer. For the reasons discussed below, we agree that Appellant is entitled to a new trial on all of these charges.

At the conclusion of Appellant’s first trial, the jury returned a unanimous verdict on the charge of providing a false name to a law enforcement officer. The information specifically charged Appellant with providing a false name to Investigator Steve Harvey; however, the State only presented evidence that Appellant provided a false name to Sergeant Bill Starling and the prosecutor argued during closing that the jury should find Appellant guilty because the evidence showed that he provided a false name to Sergeant Starling. It is fundamental error to convict a person of an uncharged crime. Bennett v. State, 823 So.2d 849, 852 (Fla. 1st DCA 2002). “While proof of a crime separate and distinct from the crime charged can constitute a fatal variance, not every variance between allegation and proof is fatal.” Taylor v. State, 672 So.2d 580, 581 (Fla. 1st DCA 1996). In this case, however, the error cannot be considered harmless because Appellant could, in theory, twice be convicted of the same crime because he was convicted of providing a false name to Sergeant Starling even though the State has yet to charge him with that crime.

Prior to the second trial, after a proper inquiry by the court, Appellant decided to represent himself on the remaining charges. During Appellant’s cross examination of Investigator Harvey about the contents of Appellant’s post-arrest statement, Appellant informed the court that he wanted to impeach Investigator Harvey’s testimony by playing the recording of his interview with the investigator. The prosecutor and Appellant’s standby counsel, who represented him during the first trial, informed the court that the recording would need to be redacted to remove references to Appellant’s criminal history. The court found that there was insufficient time to redact the recording, and it gave Appellant the option of playing the recording in its entirety or not at all. After learning that the recording contained a detailed recitation of all of Appellant’s prior convictions, Appellant chose not to play the recording.

The trial court in this case did not specifically find that Appellant’s objection to the inclusion of the prejudicial material was untimely; however, it was the trial court’s concern with having to make the jury wait that caused it to insist that Appellant had to play the entire recording or nothing. There is no requirement that a party must object pretrial to an officer’s legally obtained statements if those objections apply to specific questions or answers within the statement. Sparkman v. State, 902 So.2d 253, 254 (Fla. 4th DCA 2005). Moreover, this case presents a unique situation because Appellant, as a pro se litigant that was incarcerated at the time of the trial, did not have access to the tape or the ability to redact the tape. The trial court’s ruling prevented Appellant from exercising his constitutional right to impeach the witnesses against him on cross examination. See Garcia v. State, 816 So.2d 554, 561 (Fla.2002) (noting that both the United States and Florida Constitutions give defendants the right to confront adverse witnesses). We decline to find that this error was harmless as we are unable to say that there is no reasonable possibility that the jury’s verdict would not have been affected by Appellant’s impeachment of Investigator Harvey’s testimony with this recording. We, therefore, reverse Appellant’s convictions and remand for a new trial. Because Appellant is entitled to a new trial for the reasons stated above, we decline to address the other issues raised on appeal.

REVERSED and REMANDED.

DAVIS, PADOVANO, and ROWE, JJ., concur.

      . The jury failed to reach a verdict as to the remaining counts of the information. The trial court withheld the imposition of judgment and sentence until after the conclusion of Appellant's second trial, at which time a final judgment and sentence was entered as to all counts.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Margarita PEREZ, Appellee.
    No. 2D10-5836.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals a trial court order dismissing, on statute of limitations grounds, the grand theft charge against Margarita Perez. We have jurisdiction. See Fla. RApp. P. 9.140(c)(1)(A). The State argues that “[t]he plain language of [section 775.15, Florida Statutes (1999),] indicates that [Ms. Perez’s] absence from the state in and of itself tolls the limitations period.” We cannot agree. Accordingly, we affirm.

The State filed an information on November 27, 2002, alleging that Ms. Perez committed grand theft between May 1 and August 31, 2000. A capias issued. Section 812.035(10), Florida Statutes (2000), is the statute of limitations for theft. State v. Telesz, 873 So.2d 1236, 1237-38 (Fla. 2d DCA 2004) (reiterating that the specific provisions of section 812.035(10) control for grand theft charges instead of the general five-year statute of limitations for third-degree felonies outlined in section 775.15); see also Brown v. State, 674 So.2d 738, 740 n. 1 (Fla. 2d DCA 1995) (explaining that statutes of limitation that apply are those that were in effect at the time of the incidents giving rise to the criminal charges), superseded by statute on other grounds as stated in State v. Paulk, 946 So.2d 1230, 1231 (Fla. 4th DCA 2007). Section 812.035(10) provides a five-year limitations period. That period can be extended for no more than one year should a defendant be continuously absent from the state. § 812.035(10).

Here, the limitations period began to run on September 1, 2000. See § 775.15(4); Brown, 674 So.2d at 741 (holding that the period of limitations begins to run on the day after the offense is committed and runs until the prosecution is commenced). The information was filed within the limitations period. The capias must be executed without unreasonable delay. § 775.15(5)0»), (6), Fla. Stat. (1999). The capias here was issued within the limitations period but was not executed until September 9, 2010, almost eight years after the State filed the information. See § 812.035(10); Brown, 674 So.2d at 741 n. 2.

At the hearing on her motion to dismiss, Ms. Perez conceded that the State was entitled to a six-year limitations period allowed by section 812.035(10) due to her absence from Florida. Thus, the limitations period would have expired at the end of August 2006. The State urges us to bootstrap the general provisions of section 775.15(5)(b) and (6) onto the specific provisions of section 812.035(10) to toll the limitations period automatically and indefinitely due to Ms. Perez’s out-of-state status.

Section 775.15(5)(b), effective July 1, 1997, provides, among other things, that process must be executed without unreasonable delay:

In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

Section 775.15(6) provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from the state or has not been extradited for prosecution from another state.

Nothing in section 775.15 suggests that it supersedes or adds to the specific limitation provisions for grand theft provided in section 812.035(10). We have recognized that a more specific statute controls over a more general statute. Telesz, 873 So.2d at 1237-38 (holding that section 812.035(10) takes precedent over section 775.15 in theft cases and citing collection of authorities); State v. Guthrie, 567 So.2d 544, 545 (Fla. 2d DCA 1990) (rejecting argument that section 775.15 tolling provision applies to the more specific provision in section 812.035(10) and noting that the latter statute specified that its statute of limitations controls “notwithstanding any other provision of law”); see also Schuster v. State, 21 So.3d 117, 118 (Fla. 5th DCA 2009) (reversing denial of motion to dismiss grand theft charge on statute of limitations grounds; specific statute of limitations for theft controlled over more general limitation provisions for prosecution of crimes). Thus, sections 775.15(5) and (6) yield to section 812.035(10), and the State was limited to a maximum limitations period of six years.

Moreover, the trial court considered the State’s delay in executing the capias. The trial court concluded that the State did not act diligently in trying to locate Ms. Perez, irrespective of her absence from Florida. See Netherly v. State, 804 So.2d 433, 437 (Fla. 2d DCA 2001); Williams v. State, 707 So.2d 897, 897-98 (Fla. 2d DCA 1998); Schuster, 21 So.3d at 118.

Ms. Perez raised the statute of limitations issue. The State had the burden to establish that the offense was not time barred. See Clements v. State, 979 So.2d 256, 260 (Fla. 2d DCA 2007). The statute of limitations must be liberally construed in favor of the accused. Id.; Netherly, 804 So.2d at 436. The trial court found that the State had not attempted to ascertain Ms. Perez’s whereabouts at all during the applicable limitations period. The record supports that finding.

Affirmed.

DAVIS and CRENSHAW, JJ., Concur.

      . Presently numbered section 775.15(4)(b) and (5). See ch. 2005-110, § 1, at 1059-61, Laws of Fla.


author: WHATLEY, Judge.

text:
    Jeffrey W. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4763.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2011.
    James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

Jeffrey W. Simpson appeals an order revoking his probation and sentencing him to 70.5 months in prison. Simpson was originally sentenced to two years of probation for the offense of false imprisonment and was thereafter found to have violated this probation after a hearing. We affirm the revocation of Simpson’s probation and his sentence. However, because the written order of revocation does not conform to the trial court’s oral pronouncement, we remand this case with directions that the revocation order be corrected to conform to the oral pronouncement.

Simpson argues, and the State correctly concedes, that the order revoking Simpson’s probation must be reversed because it does not conform to the trial court’s oral pronouncement regarding the conditions of probation Simpson was found to have violated. At the revocation hearing, the trial court revoked Simpson’s probation after finding that he violated condition one and condition nine by failing to report to the probation officer as instructed, special condition eight by failing to complete community service hours, special condition twenty-four by contacting the victim of the false imprisonment, and special condition eighteen by failing to complete an anger management program. However, the written revocation order states that Simpson’s probation was revoked for violating six additional conditions. Therefore, we remand this case with directions to the trial court to correct the written revocation order to conform to the oral pronouncement. See West v. State, 1 So.3d 1290, 1291 (Fla. 2d DCA 2009).

Affirmed; remanded with directions.

ALTENBERND and DAVIS, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Jennard C. HAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-934.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.

      Jennard C. Ham, pro se.
   KHOUZAM, Judge.

Jennard C. Ham appeals a final order dismissing as untimely his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Because we conclude that the motion was neither untimely nor successive, we reverse and remand for the postconviction court to address the motion on the merits.

Ham originally filed in the circuit court a petition for permission to file a second rule 3.850 motion. The court denied the petition and informed Ham that he had thirty days to appeal the order. Ham filed an appeal, and this court dismissed the appeal as from a nonfinal order. Ham v. State, 36 So.3d 189 (Fla. 2d DCA 2010). We also directed that Ham would have “sixty days following the date that this opinion becomes final to file his rule 3.850 motion for postconviction relief.” Id. at 190.

The record on appeal indicates that Ham filed a substantive rule 3.850 motion within the deadline set by this court. Unfortunately, our earlier opinion also recited that Ham had filed his petition in October 2009, which fell beyond the two-year deadline for filing motions under rule 3.850. Id. at 189; see Fla. R.Crim. P. 3.850(b). Ham actually filed the petition in August 2009, within the two-year deadline. In ruling on Ham’s substantive rule 3.850 motion, however, the postconviction court repeated our incorrect October 2009 date, finding that the petition was filed beyond the two-year deadline. Because this erroneous ground appears to be the postconviction court’s sole basis for finding Ham’s substantive rule 3.850 motion untimely and because Ham’s motion was filed within the sixty-day deadline set in our earlier opinion, we conclude that the motion, though filed about one year beyond the two-year deadline, must be considered timely. See Ham, 36 So.3d at 190; see also Manning v. State, 28 So.3d 971, 973 (Fla. 2d DCA 2010) (“This period [during which the appeal has been pending] should not be considered in evaluating whether [the appellant] has shown good cause for an extension in any postconviction motion that she files in the trial court during the sixty-day period following our issuance of this dismissal.”).

We further conclude that Ham’s substantive rule 3.850 motion was not successive, at least with respect to claims one and two of the three-claim motion. This court’s records in proceeding 2D08-2992, the appeal of the order denying Ham’s first rule 3.850 motion, reflect that claims one and two of Ham’s present motion concern the same subject matter as claims in the first motion that were dismissed as legally insufficient, not denied on the merits. See Fla. R.Crim. P. 3.850(f) (directing that “[a] second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits”).

We therefore reverse and remand for the postconviction court to review Ham’s substantive rule 3.850 motion on the merits.

Reversed and remanded with instructions.

VILLANTI and BLACK, JJ„ Concur.

      . See Ham v. State, 999 So.2d 650 (Fla. 2d DCA 2009) (table decision).


text:
    Robert BATTLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-724.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.
    Robert Battle Jr., pro se.
   WHATLEY, Judge.

In a motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), Robert Battle, Jr., challenged the enhancement of his sentence to life for attempted felony murder with a firearm pursuant to section 775.087(2)(a)(3), Florida Statutes (1999). Battle argued that the State’s information insufficiently alleged that he possessed and discharged a firearm, thereby causing death or great bodily harm to another person. As a result, Battle contended, the information failed to put him on notice that he could receive an enhanced sentence under section 775.087(2)(a)(3). The postcon-viction court summarily dismissed Battle’s rule 3.800(a) motion on the ground that it presented an issue not cognizable in a postconviction motion because it could have been raised on direct appeal.

It is true that a defendant may not collaterally attack his conviction based on a purported technical defect in the charging document that could have been corrected if a timely objection had been made. See Simon v. State, 997 So.2d 490, 491 (Fla. 4th DCA 2008). However, a claim that a sentence was illegally imposed because the information did not charge the defendant with an element required for his sentence is cognizable in a rule 3.800(a) motion. See State v. McBride, 848 So.2d 287, 293 (Fla.2003) (Pariente, J., concurring) (“[T]he very notion of rule 3.800(a) is that it allows the illegality of a sentence to be raised at any time after the judgment and sentence are final — even though the challenge to the sentence could have been raised on direct appeal.”); Leath v. State, 805 So.2d 956, 957 (Fla. 2d DCA 2001) (holding that a claim that the information did not charge the defendant with possession of a firearm is cognizable in a motion to correct illegal sentence); Judge v. State, 596 So.2d 73, 76-78 (Fla. 2d DCA 1991) (opinion on rehearing en banc) (discussing the differences between illegal sentences that may be corrected on direct appeal, under rule 3.850, and under rule 3.800).

We nevertheless affirm the postconviction court’s summary denial of Battle’s claim because the record reflects that the language of the information sufficiently alleged the elements of section 775.087(2)(a)(3).

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Wayne ZUEHLKE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-277.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.

      Wayne Zuehlke, pro se.
   NORTHCUTT, Judge.

Wayne Zuehlke appeals the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 8.800(a).

On June 20, 2009, Zuehlke was arrested in case number 2009-CF-017259 for driving under the influence and was released on bond on June 21, 2009. On September 2, 2009, Zuehlke was arrested again for driving under the influence and also for driving while license suspended in case number 2009-CF-017258. He remained in the Sarasota County Jail until he was sentenced on June 21, 2010, in case number 2009-CF-017259 and on June 24, 2010, in case number 2009-CF-017258.

Zuehlke claims that he is entitled to 296 days of jail credit because the trial court incorrectly used December 8, 2009, the day a capias issued in case number 2009-CF-017259, as his arrest date when awarding jail credit. He argues that on that date, the charges in both case numbers were enhanced to felonies from misdemeanors and that only the ease numbers changed. He asserts that it is apparent from the face of the record that his actual arrest date was September 2, 2009, thus entitling him to 296 days of jail credit in both cases.

The postconviction court denied the claim and attached records demonstrating that Zuehlke properly received 296 days of jail credit in case number 2009-CF-017258. But in case number 2009-CF-017259, he received only 196 days of credit. The postconviction court explained that because Zuehlke bonded out in case number 2009-CF-017259 on June 21, 2009, and the capias for the offense was not executed until December 8, 2009, he was only entitled to 196 days of jail credit.

On appeal, Zuehlke argues, and we agree, that the postconviction court erred in denying his motion for additional jail credit because his bond in case number 2009-CF-017259 was revoked on September 3, 2009. Although the capias was not executed until December 8, 2009, Zuehlke began accruing jail credit in case number 2009-CF-017259 once his bond was revoked after he was taken into custody in case number 2009-CF-017258. See § 921.161, Fla. Stat. (2009); see also Clifton v. State, 905 So.2d 1042, 1048 (Fla. 2d DCA 2005); Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002). Thus, he is entitled to jail credit from September 3, 2009, until he was sentenced on June 21, 2010. He has already received 196 days of credit for December 8, 2009, to June 21, 2010.

Accordingly, we reverse and remand for the postconviction court to award Zuehlke ninety-six days of jail credit for the time he spent in jail from September 3, 2009, to December 7, 2009, in case number 2009-CF-017259.

Reversed and remanded.

MORRIS and BLACK, JJ., Concur.


author: WALLACE, Judge.

text:
    ISLANDER BUILDING COMPANY, Appellant, v. Bruno KLAUS and Cheryl Klaus, Appellees.
    No. 2D10-4513.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.
    Terrence L. Lavy of Vernis & Bowling of Southwest Florida, P.A., Fort Myers, for Appellant.
    Glenn N. Siegel of Glenn N. Siegel, P.A., Port Charlotte, for Appellees.
   WALLACE, Judge.

Islander Building Company appeals a final judgment awarding damages against it and in favor of Bruno and Cheryl Klaus on their claim for breach of a construction contract against Islander. Islander argues under issue one on appeal that the circuit court erred in determining that the Klaus-es were entitled to them attorney’s fees under a fee provision in the construction contract. But in the final judgment, the circuit court reserved jurisdiction to determine the reasonable amount of the Klaus-es’ attorney’s fees and did not establish the amount of the fees to be awarded. Thus the final judgment is not a final appealable order on the issue of attorney’s fees, and this court lacks jurisdiction to address Islander’s arguments under issue one. See Ulrich v. Eaton Vance Distribs., Inc., 764 So.2d 731, 733 (Fla. 2d DCA 2000) (“[N]ot-withstanding the finality of the judgment as it relates to the underlying dispute, the attorney’s fee issue is not finally resolved or ripe for appellate review until both entitlement and amount have been determined.”).

Under issue two, Islander argues that the circuit court abused its discretion in admitting the testimony of the Klauses’ expert in accounting and construction on various matters at trial. After a thorough review of the record, we conclude that Islander’s arguments under issue two are without merit and do not warrant further discussion.

Accordingly, we dismiss Islander’s appeal from the final judgment to the extent Islander challenges the circuit court’s determination of the Klauses’ entitlement to attorney’s fees under the construction contract. Islander may again raise its entitlement arguments on appeal from a final order awarding the Klauses their attorney’s fees. We affirm the final judgment in all other respects.

Dismissed in part and affirmed in part.

WHATLEY and NORTHCUTT, JJ., Concur.


author: CRENSHAW, Judge.

text:
    AMERICAN FAMILY MUTUAL INSURANCE COMPANY, and American Standard Insurance Company, Appellants, v. Tammy ALVIS, as Personal Representative of the Estate of Stephen C. Alvis, Deceased, Appellee.
    No. 2D10-2132.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 2011.

      Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, for Appellants.
    Kent G. Whittemore of The Whittemore Law Group, P.A., St. Petersburg, for Ap-pellee.
   CRENSHAW, Judge.

American Family Mutual Insurance Company and American Standard Insurance Company (the Insurers) appeal the final order awarding $155,422 in attorney’s fees to Tammy Alvis, as personal representative of the estate of the deceased, Stephen Alvis, based on her claims for uninsured motorist (UM) insurance benefits. Because the statutory right to attorney’s fees is a substantive right and the sole basis for the fee claim was a Nebraska statute, we conclude that Nebraska law governs the award of attorney’s fees. And because the trial court erred by awarding fees unrelated to the issue of coverage and by applying a multiplier, we reverse and remand for further proceedings.

Background

In May 2006 in Nokomis, Florida, Nebraska resident Stephen Alvis was riding as a passenger in a multipurpose utility vehicle. He was thrown from the vehicle and died as a result of his injuries. Mrs. Alvis, as the personal representative of the deceased’s estate, sought to collect UM insurance coverage under policies issued in Nebraska by the Insurers. Counsel for Mrs. Alvis pursued the insurance coverage claims along with a separate tort claim.

The sole issue under the insurance claims was whether there was coverage under the UM policies in accordance with Nebraska law. Specifically, the narrow issue before the trial court was whether the multipurpose vehicle involved in the accident constituted a “motor vehicle” under the Nebraska policies. The parties stipulated to the coverage amount. In November 2008, the trial court entered a final summary judgment in favor of coverage for Mrs. Alvis under the UM provisions of the policies.

Following the final summary judgment, counsel for Mrs. Alvis filed a motion for attorney’s fees pursuant to section 44-359, Nebraska Revised Statutes (2008). At the hearing on the motion, Mrs. Alvis’s counsel sought $155,422 in fees based on 217.6 hours of work and a 2.5 multiplier. He claimed that he was unable to separate the work on issues relating to the tort claim from issues relating to the insurance coverage claims. Mrs. Alvis’s fee expert testified that he could not apportion the hours because the time spent on the insurance coverage claims and the tort claim was “inextricably intertwined,” and this inextricably intertwined time was recoverable under Florida law. Mrs. Alvis’s fee expert also testified that a 2.5 multiplier was appropriate.

Contrary to Mrs. Alvis’s position, the Insurers argued that Nebraska law governed entitlement to attorney’s fees and therefore Mrs. Alvis was entitled to fees related only to the coverage issue. The fee expert for the Insurers testified that 109 hours was a reasonable amount of time for Mrs. Alvis’s counsel to be involved in representing his client; of those 109 hours, 35.4 hours were spent litigating the coverage issue.

In its final judgment on Mrs. Alvis’s motion for attorney’s fees, the trial court awarded the full amount sought by Mrs. Alvis’s counsel, finding that the claims were “so inextricably intertwined” that an apportionment would be impracticable. The trial court also awarded a 2.5 multiplier. This appeal timely followed.

Analysis

As a preliminary matter, the parties disagree as to which law should apply to the award of attorney’s fees. We review a trial court’s choice of law determination de novo. McNamara v. McNamara, 40 So.3d 78, 80 (Fla. 5th DCA 2010). “Generally, when confronted by a choice of law problem, a court will apply foreign law when it deals with the substance of the case and will apply the forum’s law to matters of procedure.” Siegel v. Novak, 920 So.2d 89, 93 (Fla. 4th DCA 2006). “ ‘As the forum state in this case, Florida law determines whether [the issue of attorney’s fees] is substantive or procedural for choice of law purposes.’ ” Id. (quoting EDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366, 371 (Fla. 4th DCA 2001) (Gross, J., concurring)). Florida courts follow the “American Rule” that attorney’s fees may only be awarded pursuant to an entitling statute or agreement among the parties. Dade Cnty. v. Pena, 664 So.2d 959, 960 (Fla.1995). And contrary to Nebraska law, which treats an award of attorney’s fees as a procedural issue governed by the law of the forum, the Florida Supreme Court has determined that the statutory right to attorney’s fees is a substantive right. Menen-dez v. Progressive Express Ins. Co., 35 So.3d 873, 878-79 (Fla.2010). Here, because the fee claim was based solely upon the Nebraska statute, we conclude that Nebraska law governs Mrs. Alvis’s substantive right to attorney’s fees.

We next conclude that the trial court erred as a matter of law in awarding fees unrelated to the coverage issue. Under Nebraska law, “[a]n attorney fee awarded under the provisions of § 44-359 must be solely and only for services actually rendered in the preparation and trial of the litigation on the policy in question.” Young v. Midwest Family Mut. Ins. Co., 276 Neb. 206, 753 N.W.2d 778, 783 (2008) (reversing portions of the attorney’s fee award that dealt with a separate tort claim not related to the insurance policy); see also Nat’l Am. Ins. Co. of Neb., Inc. v. Cont’l W. Ins. Co., 243 Neb. 766, 502 N.W.2d 817, 825-26 (1993) (noting that an award of fees not limited to the insurance policy in question constitutes an abuse of discretion); Hemenway v. MFA Life Ins. Co., 211 Neb. 193, 318 N.W.2d 70, 76 (1982) (reversing the portion of attorney’s fees awarded under section 44-359 that dealt with third-party claims unrelated to the policy at issue). Accordingly, the trial court’s award of fees for the “inextricably intertwined” tort claim was improper.

Additionally, the trial court erred in applying a multiplier because Nebraska law does not provide a basis for a multiplier under section 44-359. The Nebraska Supreme Court has noted that it “has never specifically approved the ‘lodestar multiplier’ approach to calculating court-ordered attorney fees.” Eicher v. Mid Am. Fin. Inv. Corp., 270 Neb. 370, 702 N.W.2d 792, 806 (2005).

Because the trial court misapplied Nebraska law by awarding fees unrelated to the issue of coverage and by applying a 2.5 multiplier, we reverse the award of attorney’s fees and the application of a multiplier. On remand, the trial court shall enter an award of attorney’s fees based on 35.4 hours — the amount of time that the Insurers’ fee expert testified was reasonable in litigating the coverage issue.

Reversed and remanded with instructions.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Neb. Nutrients, Inc. v. Shepherd, 261 Neb. 723, 626 N.W.2d 472, 517-18 (2001) (concluding that the trial court erred in applying the substantive law of Arizona in awarding attorney's fees because an award of attorney’s fees is a procedural issue to be governed by the forum state and there is no Nebraska statute authorizing an award for attorney's fees in an action on a contract).

      . We note that even under Florida law, Mrs. Alvis is not entitled to a multiplier because she failed to demonstrate that she “had any difficulty obtaining competent counsel.” Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1030 (Fla. 5th DCA 2007) (describing factors to consider when applying a multiplier).


text:
    COASTLINE FEDERAL CREDIT UNION, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Jannie Anderson, Appellees.
    No. 1D11-2449.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Samantha E. Giudici of Alexander De-Gance Barnett, P.A., Jacksonville, for Appellant.
    M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Coastline Federal Credit Union (the employer) appeals the final order of the Unemployment Appeals Commission (UAC), entitling Jannie Anderson (Claimant) to unemployment compensation benefits. The appeals referee found that Claimant was not entitled to benefits, but the UAC reversed this determination and found that Claimant’s behavior did not constitute misconduct. The employer argues, and we agree, that the UAC impermissibly rejected the appeals referee’s factual findings when it concluded that Claimant was not discharged for misconduct.

In the recommended order, the appeals referee found that Claimant was discharged for insubordination when she circumvented the employer’s conflict resolution policy, after previously receiving a written warning for insubordination, and when she disrupted the employer’s business. There was conflicting evidence presented to the appeals referee on these issues; however, the referee specifically found that the employer’s witnesses were more credible and the referee’s findings were supported by competent, substantial evidence. When reviewing the appeals referee’s order, the UAC may not reweigh the evidence or substitute its own findings for those of the referee when the referee’s findings are supported by competent, substantial evidence. Watson v. Summit Asset Mgmt., LLC, 22 So.3d 145, 147 (Fla. 4th DCA 2009); Szniatkiewicz v. Unemployment Appeals Comm’n, 864 So.2d 498, 502 (Fla. 4th DCA 2004). In this case, the UAC wrongfully rejected the appeals referee’s findings. Accordingly, we reverse the order of the UAC and direct the UAC to enter an order consistent with the decision of the appeals referee.

REVERSED and REMANDED with instructions.

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


text:
    V. Michelle PARKER, Former Wife, Appellant, v. Robert B. PARKER, Former Husband, Appellee.
    No. 1D11-3422.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Sharon K. Wilson, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 29, 2011, as well as the Order of the Special Master, filed with this Court on September 9, 2011, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Accordingly, the appeal is dismissed.

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


text:
    Mikhail BELOV, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 1D11-3524.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Richard A. Sicking, Coral Gables, for Appellant.
    Lynda S. Slade, Miami, for Appellee.
   PER CURIAM.

The agreed motion requesting remand for a hearing de novo is granted. Accordingly, the final order is reversed and the cause remanded for a new hearing. See Arnold Lumber Co. v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

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


text:
    Randolph C. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4244.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2011.
    Elizabeth Yerington, Assistant Regional Conflict Counsel, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 11, 2011, the Court has determined that the notice of appeal failed to timely invoke its jurisdiction. Accordingly, the appeal is dismissed. The dismissal is without prejudice to the appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

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


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Laconia Cedric SEYMOUR, III, Appellee.
    No. 2D09-4789.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    John E. Hendry, Regional Counsel, Second District, and Jeffrey Sullivan, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order granting Laconia Cedric Seymour, Ill’s motion to suppress physical evidence in conjunction with charges filed against Seymour for loitering and prowling, carrying a concealed firearm, and possession of a firearm by an adjudicated delinquent. We reverse and remand for further proceedings.

The charges against Seymour arose out of an incident in which a Winter Haven Police officer driving a marked patrol car witnessed Seymour and two other men standing on a sidewalk flagging down the car that was driving ahead of the officer. That car slowed but did not stop. The three men then began to flag the officer down while his patrol car was still about fifty feet away from them. The officer slowed down and stopped his vehicle in the middle of the roadway about twenty feet from the men. It was just before 1 a.m., and as the officer exited his patrol car, he activated his emergency lights. The three men immediately began to walk away from the officer, and the two men with Seymour dropped items to the ground as they walked. Seymour, however, carried a backpack. At the hearing on Seymour’s motion to suppress, the officer testified that it appeared to him that Seymour was trying to carry the backpack in front of him as if to shield it from the officer’s view. He further testified that it appeared that the two men with Seymour were attempting to conceal Seymour and his bag from the officer. Based on this suspicious behavior, the officer drew his weapon and ordered all three men to the ground. When backup arrived, the men were questioned as to why they were flagging cars down at 1 a.m. Because the men were unable to explain their actions, the officer placed them under arrest for loitering and prowling. The officer then searched the backpack incident to arrest and found a .22 caliber gun, bandanas fashioned into masks, and bullets. It also was discovered that the items dropped by the men were black gloves and another bandana mask.

In his motion to suppress the physical evidence found at the scene, Seymour argued that when the officer activated his patrol car’s flashing lights, the officer effectuated an illegal detention unsupported by a reasonable suspicion that the three men had committed, were committing, or were about to commit a crime.

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), the Florida Supreme Court explained that

[t]he second level of police-citizen encounters involves an investigatory stop.... At this level, 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. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, artic-ulable suspicion of criminal activity.

(Citation omitted.)

Here, following a hearing on the motion, the trial court granted Seymour’s motion to suppress, quoting the following language from this court’s opinion in Newkirk v. State, 964 So.2d 861, 868 (Fla. 2d DCA 2007): “Florida law consistently holds that when an officer activates his emergency lights, that act initiates an investigatory stop, not a consensual encounter.” The trial court therefore concluded that when the officer here exited his patrol car and activated his lights, he detained Seymour and the two other men. The court also determined that at that point, the officer merely had seen three men standing by the side of the road trying to flag down a car, which the court concluded did not amount to a reasonable suspicion of criminal activity.

The trial court, however, did not have the benefit of the Florida Supreme Court’s opinion in G.M. v. State, 19 So.3d 973 (Fla.2009), which issued after the trial court entered its order. In G.M., the supreme court concluded that there is no per se rule that “the activation of police lights is dispositive of a finding that an individual has been ‘seized’ under the Fourth Amendment” but rather that “activation of police lights is only one important factor to be considered in a totality-of-the-circumstances analysis of whether a seizure in the constitutional context has occurred.” Id. at 974.

Considering the totality of the factual circumstances as found by the trial court here, we conclude that the trial court erred in determining that the officer detained Seymour at the time he activated his emergency lights. See Hicks v. State, 929 So.2d 13, 15 (Fla. 2d DCA 2006) (“When reviewing a trial court’s ruling on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, while the trial court’s application of the law to those facts is reviewed de novo.” (internal quotation marks omitted)). The officer stopped in response to three men on the side of the road flagging him down. His car was in the roadway, and it was 1 a.m. As such, he activated the patrol car’s emergency lights as he exited the vehicle. Under these circumstances, the contact between the officer and the men was a consensual encounter for which a reasonable suspicion of criminal activity was not necessary.

Furthermore, the contact did not turn into a detention until the officer drew his weapon and ordered the men to the ground. At that point, however, the officer had the necessary well-founded, articu-lable suspicion to detain the three men. Although the three did not engage in headlong flight upon seeing the officer, once it became apparent that it was a police officer who had stopped, the three immediately turned to walk away, dropping items from their hands and attempting to conceal the fact that they were carrying a backpack. This, combined with the fact that the only reason the officer had stopped in the first place was because the three had flagged him down and had been attempting to flag down other vehicles, amounts to reasonable suspicion of criminal activity.

In conclusion, we reverse the trial court’s order granting Seymour’s motion to suppress, and we remand for further proceedings.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ„ Concur.


text:
    TAMPA HCP, LLC; Emeritus Corporation; HCP, Inc.; and Sotam, LLC (as to Southerland Place n/k/a Emeritus at Northdale), Appellants, v. Nancy BACHOR, as Personal Representative of the Estate of Kathleen Truxell, Deceased, Appellee.
    No. 2D11-505.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2011.

      Kirsten K. Ullman and Bruce D. Peisner of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Tampa HCP, LLC; Emeritus Corporation; HCP, Inc.; and SOTAM, LLC, (collectively referred to as Emeritus) appeal the trial court’s order denying their motion to compel arbitration of the claims brought against them by Nancy Bachor, as personal representative of the Estate of Kathleen Truxell. The trial court concluded that Ms. Bachor had not knowingly and voluntarily waived the right to trial by jury. We reverse because the trial court’s factual findings are not supported by competent, substantial evidence and its construction of the arbitration agreement was erroneous as a matter of law.

As a result of Kathleen Truxell’s stay at an Emeritus facility, Ms. Bachor filed a lawsuit against Emeritus asserting negligence and violations of chapter 429, Florida Statutes. All of Ms. Truxell’s admissions documents related to her stay at Emeritus were executed by Ms. Bachor, pursuant to a durable power of attorney. Relevant to this case is the two-page arbitration agreement signed by Ms. Bachor. The agreement was clearly labeled “RESIDENT AND FACILITY BINDING ARBITRATION AGREEMENT (READ CAREFULLY).” It read, in relevant part:

[A]ny legal dispute, controversy, demand or claim ... that arises out of or relates to that certain Resident Admission Agreement ... executed by the Resident and the Facility, or any service or health care provided by the Facility to the Resident, shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the parties, or in the absence of such agreement, at the Facility, in accordance with the Florida Arbitration Code (which is incorporated into this Arbitration Agreement), and not by a lawsuit or resort to court process except to the extent that applicable state or federal law provides for judicial review of arbitration proceedings or the judicial enforcement of arbitration awards.

The agreement did not contain any limitations on damages, discovery, appellate rights, or any other limitations typically associated with nursing home or assisted living facility arbitration agreements. It provided that any damages awarded in arbitration would be “determined in accordance with the provisions of the state or federal law applicable to a comparable civil action.”

The agreement clearly stated that the person signing

understands that (1) he/she has the right to seek legal counsel concerning this Arbitration Agreement, (2) the execution of the Arbitration Agreement is not a precondition to the furnishing of services to the Resident by the Facility, and (3) this Arbitration Agreement may be rescinded by written notice given to the Facility by the Resident within thirty (30) days of signature.

(Emphasis added.) Immediately before the signature line, it read:

THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND JURY.

The evidence presented to the trial court also reflects that Ms. Bachor signed the arbitration agreement three days before her mother moved into the facility. The meeting in which the admissions documents were signed was ten to fifteen minutes long, partly because Ms. Bachor may have been returning to work after the meeting. No one affirmatively told Ms. Bachor that she was required to sign the arbitration agreement in order to have her mother admitted to the facility. There was no suggestion that anyone at the facility “tricked” or induced her to sign the agreement. However, Ms. Bachor subjectively believed that she needed to sign all the documents in the admissions packet given to her — including the arbitration agreement — in order to have her mother admitted to the facility. She testified that no one expressly told her that the arbitration agreement was optional and that she was afraid there would not be a room available for her mother if she did not immediately sign all the documents and pay a deposit. In Ms. Bachor’s words:

Q. You mentioned that you wanted to get your mother admitted to this facility and you were handed a packet of documents to sign. Did you feel that you were in any way forced or coerced into signing these ... documents ... including the Arbitration Agreement?
A. I felt that we were — we were told that there was a room available that was becoming — or that was available for her. So I didn’t feel forced. I felt that I was on a short time line to get her admitted. And she was ready to be released, so we had a lot — my sister and I had a lot to prepare for once the paperwork was signed. We had to get movers and pack her belongings, and we were trying to get her settled into Southerland before — before her release. So we wanted to get all her furniture moved in and ready to go. And that was all within a few days time of this happening.

(Emphasis added.)

The arbitration agreement was presented to Ms. Bachor as part of an admissions “packet,” and no one affirmatively prevented her from reading any of the documentation. In fact, she asked questions during the meeting, but they were related to services to be provided to her mother. Several of the documents in the packet required Ms. Bachor to affirmatively select or decline specific services for her mother, and she made those choices. Although she received copies of the documents she had signed, she did not know if she reviewed them. And she did not exercise the right of rescission set forth in the arbitration agreement.

At the hearing on Emeritus’ motion to compel arbitration, Ms. Bachor argued that the arbitration agreement was both substantively and procedurally unconscionable. After considering the parties’ arguments, the trial court denied arbitration, concluding that Ms. Bachor “did not make a knowing and voluntary waiver.” Under the circumstances of this case, the trial court’s ruling was error.

When a trial court’s ruling is based in part on factual findings, our review of its factual findings is limited to whether they are supported by competent, substantial evidence. Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008). But we review de novo the court’s construction of the arbitration provision and its application of the law to the facts. Id.

Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscion-ability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006). If the arbitration agreement is not procedurally unconscionable, the court does not reach substantive uncon-scionability. Id. at 257; Eldridge v. Integrated Health Servs., Inc., 805 So.2d 982, 982 (Fla. 2d DCA 2001).

Procedural unconscionability relates to the manner in which the contract was made. Bland, 927 So.2d at 256. It involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. Id. A court can find a contract unconscionable if important terms are “hidden in a maze of fíne print,” minimized by deceptive sales practices, or if the contract has a “take it or leave it” approach with an absence of meaningful choice on the part of the consumer. See Orkin Exterminating Co., 872 So.2d at 265; Powertel, Inc. v. Bexley, 748 So.2d 570, 574 (Fla. 1st DCA 1999).

To determine if an arbitration agreement is procedurally unconscionable, “a court must look to the ‘circumstances surrounding the transaction’ to determine whether the complaining party had a ‘meaningful choice’ at the time the contract was entered.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2003) (quoting Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965)). On facts very similar to the facts of this case, the First District in Weston rejected the trial court’s finding that an arbitration agreement was procedurally unconscionable.

In Weston the nursing home resident’s daughter met with the nursing home admissions personnel during her lunch break, in a meeting that lasted fifteen to twenty minutes. Id. at 281. She did not ask questions about the admissions contract, had no substantive discussions about the document with the facility’s personnel, and claimed that she did not read it before signing. Id. at 281. The daughter did not ask to take the document home to review it or to seek a lawyer’s advice before signing. Id. There was no evidence that the mother would have been denied admission to the facility if the daughter had declined the arbitration agreement. Id. The trial court found the arbitration agreement unconscionable, but the First District reversed, finding that the agreement was not procedurally unconscionable. Id. at 280.

The First District focused on whether the evidence presented to the trial court reflected an absence of meaningful choice at the time the contract was signed— whether the contract was presented as a “take-it-or-leave-it” deal. Id. at 281. Among the factors influencing the district court’s decision in Weston were the following: (1) any haste associated with reviewing and signing the admissions document was self-imposed by the resident’s daughter, (2) there was no suggestion the admissions document had been presented to the daughter on a “take-it-or-leave-it” basis, (3) there was no evidence that the arbitration provision would not have been deleted if the daughter had so requested, and (4) there was no evidence that the resident would have been rejected had the daughter declined to sign the agreement. Id. at 285. To the extent the daughter failed to read the agreement, nothing the nursing home did or said caused her failure read it. Id. at 287-88. After looking at all the circumstances surrounding the transaction, it was “simply not reasonably possible to reach the conclusion that [the daughter] had no ‘meaningful choice’ at the time she executed the Admission Contract.” Id. at 288. The court concluded: “To permit one to avoid the requirements of the arbitration provision on the basis of the evidence presented to the trial court would stand contract law on its head.” Id. The same can be said in this case.

The evidence here did not show procedural unconscionability. No one at the facility told Ms. Bachor that she was required to sign the arbitration agreement in order to have her mother admitted to the facility. Ms. Bachor was not rushed by anyone to sign the agreement, and any haste in signing the agreement was self-imposed. The arbitration agreement clearly stated that she had the right to review the agreement with a lawyer, that signing the agreement was not a precondition to admission to the facility, and that she could rescind the agreement within thirty days of signing it. See Bland, 927 So.2d at 256 (noting that resident’s daughter did not exercise right to rescind the arbitration agreement within three days, as provided in the contract). The fact that Ms. Bachor chose not to read the arbitration agreement before signing it does not relieve her of the bargained-for deal. See Estate of Etting ex rel. Etting v. Regents Park at Aventura, Inc., 891 So.2d 558, 558 (Fla. 3d DCA 2004). The fact that the facility representative did not voluntarily explain the arbitration agreement to the literate daughter or expressly tell her that she did not have to sign it is not enough to support a conclusion that the agreement was procedurally unconscionable. See Bland, 927 So.2d at 256. The totality of the circumstances reflects that Ms. Bachor had a meaningful opportunity to review the arbitration agreement, to obtain guidance, and to accept or reject the terms of the arbitration agreement. She also had an opportunity to reconsider her decision during the revocation period. Consequently, on these facts, the agreement was not procedurally unconscionable. Because of our ruling, it is not necessary to address substantive unconscionability. See Bland, 927 So.2d at 257.

Reversed and remanded.

LaROSE and MORRIS, JJ., Concur.

      . Ms. Bachor is Ms. Truxell’s daughter.

      . In its ruling, the trial court used language reminiscent of the analysis applicable to a waiver of jury trial in a criminal case. As explained in this opinion, in the context of a motion to compel arbitration, the question is whether the nursing home or assisted living facility resident knowingly and voluntarily assented to the terms of the parties' contract.


author: MAY, C.J.

text:
    M.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1600.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

A juvenile appeals his disposition order, having been found guilty of resisting arrest without violence. He argues the trial court erred in denying his motion for judgment of dismissal because the law enforcement officer was not executing a lawful duty when he ordered the juvenile to stop. We agree and reverse.

Officer # 1 received a dispatch from an anonymous caller regarding a large group of juveniles fighting in the vicinity of 6th Avenue and Commercial Boulevard. The tip did not include a description of the individuals involved. When Officer # 1 arrived, he saw four juveniles, and noticed that one of them, not the defendant, looked “disheveled,” as if he had “been in a fight.” The juvenile’s hair was “messed up.” His T-shirt was stretched out and the collar ripped. Those were the only observations that led the officer to conclude that the juvenile had been in a fight.

Officer # 1 asked the four juveniles to speak with him about the “possible fight in the area.” Two of them stopped to speak with him, one of them was the juvenile who appeared disheveled. The other two — including the defendant — proceeded southbound on 6th Avenue, ignoring the request to stop.

A second officer arrived as backup. Officer #2 saw the four juveniles, but did not see anyone fighting or running away. He observed two of the juveniles speaking to Officer # 1, and two others walking briskly across the street toward him. Officer # 1 then instructed Officer # 2 to stop the two juveniles who walked away.

Officer # 2 approached and instructed the two juveniles to stop, but they kept walking. Officer #2 then yelled “stop.” This time one juvenile stopped, but the defendant continued walking. Officer # 2 once again yelled “stop.” This time the defendant turned around and responded: “don’t raise your f — ing voice at me.” At this point, Officer #2 testified that the defendant stood in an “aggressive manner ... almost like a fighting stance.”

Officer # 2 then told the defendant to sit down. According to Officer #2, the defendant began to sit down, but did not sit down completely. Officer # 2 thought the defendant was going to flee. As the defendant started to get up, he attempted to strike the officer. Officer # 2 then turned and grabbed on to the defendant’s shirt. Officer # 2 testified that the defendant again tried to punch him, so he turned, and returned two punches to the defendant’s face. The officer struck the defendant twice more, then apprehended and handcuffed him. The State charged the defendant with resisting arrest with violence.

After the State rested, the defense moved for a judgment of dismissal, arguing that Officer # 2 was not engaged in the lawful execution of a legal duty, as required under section 843.01, Florida Statutes (2008), because he lacked reasonable suspicion to stop the juveniles. The trial court denied the motion. Defense counsel renewed the motion for judgment of dismissal at the close of its case; the trial court again denied the motion. The court found the defendant guilty of the lesser included offense of resisting arrest without violence, withheld adjudication, and ordered him to perform “ten hours of community service, attend and complete counseling/anger management, and [abide by] a court-imposed curfew.”

We review a trial court’s decision on a motion for judgment of dismissal de novo. W.W. v. State, 993 So.2d 1182, 1184 (Fla. 4th DCA 2008).

The defendant argues the court erred in denying his motion for judgment of dismissal because Officer #2 was not engaged in the lawful execution of a legal duty when he stopped the defendant; specifically, he contends the officer lacked reasonable suspicion that the defendant had engaged or would engage in illegal activity. We agree. Our decision in Fuentes v. State, 24 So.3d 1231 (Fla. 4th DCA 2009), controls.

The State must prove: “(1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s action constituted obstruction or resistance of that lawful duty” to establish the crime of resisting arrest without violence. W.W., 993 So.2d at 1184. To conduct an investigatory stop, a law enforcement officer must have “ ‘a reasonable suspicion’ that a ‘person has committed, is committing, or is about to commit a crime.’” Fuentes, 24 So.3d at 1234 (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)).

To determine whether an officer had reasonable suspicion for an investigatory stop, we look at the totality of circumstances. Id. Law enforcement must be able to articulate a well-founded suspicion of criminal activity in light of the officer’s training and experience. Popple v. State, 626 So.2d 185, 186 (Fla.1993). “Mere suspicion is not enough.” Id.

When an anonymous tip prompts a police investigation, it will justify a stop as long as it can be corroborated. Fuentes, 24 So.3d at 1235. This requires the officers to observe “ ‘unlawful acts, unusual conduct, or suspicious behavior’ ” when they arrive on scene. See id. (quoting Baptiste v. State, 995 So.2d 285, 296 (Fla.2008)). Here, that did not occur.

As in Fuentes, two police officers responded to an anonymous tip. The anonymous caller failed to provide a description of any of the juveniles involved. When Officer # 1 arrived on scene, he saw only four juveniles, one of whom looked disheveled. That juvenile stopped to talk to Officer # 1 when requested. The defendant and another juvenile continued walking. Neither of them appeared disheveled, and no one witnessed any unlawful act, unusual conduct, or suspicious behavior. There was simply insufficient corroboration of the anonymous tip to provide reasonable suspicion for Officer #2 to conduct an investigatory stop of the defendant.

The State argues the arresting officer had reasonable suspicion to stop the defendant because he was in the vicinity where an anonymous caller reported a fight, and he was in the company of another juvenile who appeared disheveled. Neither of these factors, however, provided either officer with reasonable suspicion that the defendant was involved in criminal activity. See, e.g., Levin v. State, 449 So.2d 288, 289 (Fla. 3d DCA 1983) (“being out on the public street during late and unusual hours cannot constitute a valid basis to temporarily detain and frisk an individual.”).

Reversed and Remanded for entry of a judgment of dismissal.

STEVENSON and CIKLIN, JJ„ concur.

      . The issue of whether the officer was engaged in the lawful execution of a legal duty applies equally to the crime of resisting an officer with violence under the facts of this case. § 843.01, Fla. Stat. (2008); Tillman v. State, 934 So.2d 1263, 1266 (Fla.2006). The defendant however has only argued the issue as to the crime of resisting arrest without violence, of which the trial court found him guilty.


text:
    Samantha Holly WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1410.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Samantha Holly Wilson appeals the judgment and sentence of the trial court, adjudicating her guilty of attempted child abuse and sentencing her to six months in prison, followed by three years of probation. We reverse Wilson’s conviction because of the improper admission of extrinsic evidence, introduced solely for impeachment on an irrelevant and collateral matter.

Wilson was charged by information with child abuse in violation of section 827.03(l)(b), Florida Statutes. A.K. is the child of J.R. and B.K. J.R. and B.K. separated when A.K. was about a year and a half old; the two split visitation. Wilson is B.K.’s girlfriend. There was conflicting testimony adduced at trial. A.K.’s preschool teacher, Ms. White, testified that A.K. was reluctant to go home with Wilson when Wilson first started coming to pick her up from school; that A.K. told her that Wilson locked her in a closet; that A.K. said Wilson pulled her hair; and that A.K. told her that Wilson “pulled my ears because I was a bad girl.” White relayed this information to her supervisor, who informed J.R. During cross-examination, White testified that she is friends with J.R. but said they rarely talk. J.R. testified similarly to White. J.R. reported the matter to DCF. B.K. testified that he never let Wilson discipline his daughter and that A.K. never told him Wilson hit her. C.K., B.K’s mother and A.K.’s grandmother, testified that she was friendly with J.R. and Wilson. She never heard A.K. say that Wilson pulled her hair, her ears, or put her in a closet. J.R. further testified that the only time A.K. mentioned Wilson was to say she missed Wilson or wanted to play with Wilson; B.K. never heard A.K. say anything bad about Wilson.

Wilson testified she picked up A.K. from day care maybe five times by herself. Wilson testified that she and J.R. did not get along very well. Wilson further testified that about four months before this incident, J.R. reported Wilson to DCF, but after an investigation, the case was thrown out. Wilson said that after DCF was called the first time, she made a point not to have A.K. alone as she didn’t want to take the chance of that happening again. Wilson testified that she never noticed the hair problem, but that she and B.K. had noticed bruising on one of A.K.’s ears; A.K. said she fell down and bumped herself on a table. On cross-examination, the following then transpired:

STATE: What about Kristy White? Are you mad at her?
WILSON: I don’t know her.
STATE: Okay. Do you remember a conversation you had with her a few hours ago?
WILSON: Kristy White? I didn’t have a conversation with her a few hours ago.
STATE: Do you remember words that you yelled out at her?
WILSON: I didn’t yell anything out at her.
DEFENSE: Objection, your Honor. She didn’t yell at Kristy White. I think he’s referring to what happened in court. She was telling me it was a different day care [that Xavier attended] when [she] called out to me and said it wasn’t that day care.
STATE: I’ll clarify the question, your Honor.
COURT: All right.
STATE: Do you remember following Kristy White in the parking garage and yelling out that she’s a fucking bitch and a fucking liar?
WILSON: No.
DEFENSE: I would object to that. That’s unsubstantiated and obviously his clients are trying to just, you know, add more to this trial that is—
COURT: I’ll overrule the objection. He just asked the question whether she said it.
STATE: Did you say that?
WILSON: No.
STATE: Okay. And a video from the parking garage wouldn’t show you walking behind her?
WILSON: Me and my boyfriend walked out behind her.
The State re-called White as a rebuttal witness and elicited the following:
STATE: All right. As you were going to lunch, did you have any contact with the defendant?
WHITE: When I was walking to my car, I heard some obscene things being said about me and I happened to turn around and it was Samantha and B.K. and she was—
STATE: Okay. What type of things did you hear Samantha yelling?
WHITE: She was saying, she said you’re not J.R.’s, oh, you’re not J.R.’s friend? You’re not J.R.’s friend? You’re a fucking liar. You’re a fucking bitch. And at that time I turned around to see who it was because, to be honest with you I was a little scared, and I turned around and I just kept walking, didn’t make any gestures and I just got to my car.
STATE: Okay. Did it sound like she was angry?
WHITE: Yes.
STATE: Sound like she was upset?
WHITE: Yes, sir.
STATE: Lost her temper with you?
WHITE: She was just making obscene language to me and I was kind of scared.
STATE: Okay. And after that lunch break I found you and you relayed that story to me?
WHITE: Yes, sir.

The jury found Wilson guilty of the lesser-included offense of attempted child abuse, a third-degree felony. This appeal followed.

Wilson argues that the trial court erred in allowing the State to elicit rebuttal testimony regarding an irrelevant, non-material collateral issue: An alleged verbal confrontation during a trial recess wherein Wilson followed White in the parking lot and yelled obscenities at her because Wilson thought White lied during her testimony. Wilson argues that this prejudicial collateral issue was not one that could support the calling of a rebuttal witness for the purposes of impeachment, and the verbal confrontation was irrelevant to the issues giving rise to the prosecution (whether or not Wilson pulled AK.’s hair out and/or bruised her ears).

The State argues that Wilson’s threats to White during trial were relevant because the evidence tended to show that Wilson had a violent temper, which was relevant to the crime of child abuse, a violent crime. Moreover, the defense in this case was that the victim’s mother, J.R., was vengeful toward Wilson, and White (as a friend of J.R.), had a reason to lie about the abuse suffered by the child. Therefore, the State argues that Wilson’s feelings of anger toward White were relevant, and the rebuttal testimony was proper impeachment of Wilson’s claim that she was not angry with White for testifying against her.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2009) (emphasis added). “Any party, including the party calling the witness, may attack the credibility of a witness by ... [pjroof by other witnesses that material facts are not as testified to by the witness being impeached.” § 90.608(5), Fla. Stat. (2009) (emphasis added). “In determining if the issue is collateral so that collateral impeachment by extrinsic evidence is disallowed, the question to be posed is whether the impeaching evidence would be admissible for any purpose other than contradiction.” Correia v. State, 654 So.2d 952, 954 (Fla. 4th DCA 1995) (citing Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991)). “Two types of evidence pass this test: 1) evidence which is relevant to independently prove a material fact or issue; and 2) evidence which would discredit a witness by pointing out the witness’s bias, corruption or lack of competency.” Id. (citing Dempsey, 589 So.2d at 377). “It is well-established that if a party cross-examines a witness concerning a collateral matter, the cross-examiner must ‘take’ the answer, is bound by it, and may not subsequently impeach the witness by introducing extrinsic evidence to contradict the witness on that point.” Id. at 955 (citing Caruso v. State, 645 So.2d 389 (Fla.1994)). However, “[i]n Florida, an exception to the so called collateral-matter rule exists where the collateral extrinsic evidence sought to be introduced concerns matters testified to by the witness on direct examination” because the witness is said to have opened the door. Mills v. State, 681 So.2d 878, 880 (Fla. 3d DCA 1996) (citing Segarra v. Mellerson, 675 So.2d 980, 983 (Fla. 3d DCA 1996)).

In Dupont v. State, 556 So.2d 457 (Fla. 4th DCA 1990), the issue was “whether evidence of an out-of-court verbal confrontation which occurred during the trial was properly admitted in evidence.” Id. at 458. Dupont began to date the victim’s ex-wife. Id. Dupont was charged with battery after a fístfíght with the victim, which was witnessed by the victim’s girlfriend. Id. On direct examination, Dupont testified that he struck the victim in self-defense. Id. On cross-examination, Dupont denied he verbally threatened the victim in an elevator as they departed the courthouse after a trial recess. Id. The State presented rebuttal testimony to prove the elevator verbal threat took place. Id. On review, this court held that “[t]he elevator verbal threat which happened several months after the fistfight was irrelevant....” Id. This court concluded that:

[Dupont] did not put his character trait for violence in issue. Even if he had, opinion testimony is the recognized method of proving character, section 90.405(1), Florida Statutes (1987), and error occurs when the prosecution is allowed to introduce rebuttal evidence of specific acts of violence or turbulence where the defendant only places his or her general reputation for being a peaceful person in issue.

Id. (citing Cornelius v. State, 49 So.2d 332, 335 (Fla.1950)).

Whether or not Wilson yelled obscenities at White during a trial recess was not evidence tending to prove or disprove a material fact in the case; the evidence would not tend to prove or disprove that Wilson committed child abuse on A.K. Thus, the evidence was not relevant to the crime charged and did not serve to discredit Wilson by establishing bias, corruption or lack of competency. Moreover, the first question posed to Wilson regarding the incident with White was made by the State on cross examination; thus, pursuant to Mills, the exception to the collateral matter rule is inapplicable, as Wilson did not open the door to this line of questioning on direct. Under nearly the same factual scenario as here, this court in Du-pont held the admission of rebuttal testimony erroneous and harmful error. Accordingly, we hold that the trial court abused its discretion and committed reversible error by allowing the State to elicit rebuttal testimony from White because the testimony concerned a non-material collateral matter. We also find that this error was compounded by the State when, during closing argument, the prosecutor improperly focused the jury’s attention on White’s improper rebuttal testimony.

Reversed and Remanded for New Trial.

WARNER, J„ and EHRLICH, MERRILEE, Associate Judge, concur.

      . The child is referred to as "A.K.,” who was two years old when the charges were filed. A.K.'s mother and father are referred to as "J.R.” and "B.K.,” respectively. A.K.'s grandmother is referred to as C.K.

      . White had noticed three big bald spots on A.K.'s head.

      . During the State's closing, the prosecutor argued, in part:
      [S]ome of the foggy memories that people had, you know, that the defendant didn’t remember losing her temper and cussing out Kristy White in the parking lot. But she did. The, she, the defendant said, as Kristy White said, she was scared because the defendant sounded angry, sounded mean like she lost her temper and scared her. And Kristy White’s a teacher, a nurse now. She’s not a little two-year-old child like [A.K.] is. Again, the Judge is going to tell you what you're supposed to base your verdict on. That’s the evidence that you heard. And again, accurate memories, people being honest and straightforward up there, testimony agreeing with other testimony, inconsistent statements. Again, you’re going to have to rely on your conclusions about each witness. But I'm confident when you go back there, you’re going to remember the testimony.
      Since the proposed rebuttal testimony from Ms. White will not be allowed on retrial, this part of the State’s closing argument similarly will not recur.