author: WELCH, Judge.

text:
    Jerry Day HAYES v. STATE of Alabama.
    CR-08-1280.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    Rehearing Denied Dec. 10, 2010.

      David Gespass, Birmingham, for appellant.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   WELCH, Judge.

After the two cases were consolidated for trial, Jerry Day Hayes was convicted of the first-degree robbery of Hanh Ha, in case no. CC-2007-3397, and was convicted of the first-degree robbery of Tammy Stewart in case no. CC-2007-3398. In both cases the indictment charged a violation of § 13A-8-41(a)(1), Ala.Code 1975. The circuit court sentenced Hayes to consecutive terms of life imprisonment without parole, ordered Hayes to pay a $50 assessment to the crime victims’ compensation fund, and assessed costs in both cases. Hayes gave oral notice of appeal immediately following sentencing, and he did not file a motion for a new trial. This appeal followed.

Hayes’s appointed counsel filed a “no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, upon our review of the record, we noticed an issue arguable on its merits that warranted further briefing. In an order issued on April 29, 2010, we granted Hayes’s counsel’s motion to withdraw, appointed new counsel to represent Hayes, and requested that the parties file briefs addressing the following issue:

“[W]hether, in CC-07-3397 wherein the indictment charged the theft of a purse during a robbery, and the victim testified that only a debit card and cell phone were stolen, the trial court, over the objection of counsel, improperly amended the indictment and recharged the jury that one of the elements of the offense was theft of the debit card and cell phone.”

After considering the arguments presented by the parties, we conclude that the circuit court improperly denied Hayes’s motion for judgment of acquittal and erred when it subsequently amended the indictment to charge a new offense. Thus, in case no. CC-2007-3397, Hayes’s conviction for first-degree robbery must be reversed. We affirm his conviction and sentence in case no. CC-2007-3398.

In case no. CC-2007-3397, the indictment charged:

“The GRAND JURY of said County charge, that, before the finding of this indictment Jerry Day Hayes whose name is to the Grand Jury otherwise unknown than as stated, did in the course of committing a theft of property to-wit: a purse and its contents, the property of Hanh Ha, threaten the imminent use of force against the person of Hanh Ha, with intent to compel acquiescence to the taking of or escaping with the property, while the said Jerry Hayes or another participant was armed or represented to a nonparticipant that he was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 1BA-8^11 (a)(1) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 12.)

Hanh Ha testified that she was a respiratory therapist at the University of South Alabama Hospital, in Mobile, Alabama. She had just parked her automobile in the parking lot, opened the door, and stepped out of the automobile, when Hayes rode up on a bicycle. He stopped in front of her, told her he had a gun, then ordered her to “Give me your purse or I’ll shoot you.” (R. 49.) Hayes threatened her once more, saying that he would kill her. He then reached into the front pocket of the “scrubs” she was wearing and took both her cellular telephone and a debit card. He did not steal a purse or its contents, or attempt to do so.

Hayes did not make a motion for a judgment of acquittal in either case at the close of the State’s case. He then rested without presenting any evidence on his behalf, and he did not make a motion for a judgment of acquittal at the close of all the evidence, prior to the charge conference. However, after the court’s initial charge to the jury, before the jury retired to begin deliberation, Hayes did move for a judgment of acquittal in case no. CC-2007-3397, which the circuit court denied, objected to the circuit court’s denial, and objected to the court’s further decision to recharge the jury and to amend the indictment by changing the description of the property stolen during the robbery of Hanh Ha from a “purse and its contents,” as set out in the indictment returned by the grand jury, to a “cell phone and a debit card.” (R2.27.)

Hayes argues on appeal that the circuit court abused its discretion in case no. CC-2007-3397 by denying his motion for a judgment of acquittal and then amending the indictment over his objection. He further contends that there was a material variance between the proof of the property stolen during the robbery at trial and the description of the property alleged to have been stolen as described in the indictment.

The original oral charge to the jury included the following explanation of the offenses:

“Now, let me tell you what armed robbery is or Robbery in the 1st Degree. A person commits the crime of Robbery in the 1st Degree if in the course of committing a theft he uses or threatens the imminent use of force against the person or the owner of the property with the intent to overcome that person’s physical resistance or physical power of resistance and in doing so he’s armed with a deadly weapon.
“So you’ve got to have the defendant, Jerry Hayes, committed a theft, a purse, a cell phone, a credit card,[] that in the course of committing the theft the defendant used force against Hanh Ha, and/or Tammy Stewart, with the intent to overcome their physical resistance or physical power to resist or threatened force against the person with the intent to compel acquiescence to the taking of the property and that he was armed with a deadly weapon.”

(R2.21-22.)

During the charge, the jury was directed to retire, to elect one of their number as a foreman, and to wait until after the exhibits introduced into evidence were delivered to them before beginning deliberation. After the jury retired to elect the foreman, the following transpired.

“THE COURT: Any exceptions?
“MR. HICKMAN [the prosecutor]: No, sir.
“MR. SPECHALSKE [defense counsel]: Yes, Judge — well, the only real — it really isn’t an exception, Judge, because of the way we did this. I neglected at the close of the State’s case, since it was really kind of — I jumbled it. — ask for a motion of acquittal. And I do so now.
“Plus the fact that actually — and just as part of this, the evidence in this — my client pointed out, but I already saw that too, that Ms. Hanh, it said that a purse and its contents is what was stolen. And that was not—
“MR. HICKMAN: I picked up on that too, Your Honor—
“MR. SPECHALSKE: I’m just asking — I’m just asking—
“MR. HICKMAN: Are you done? I didn’t mean to interrupt you.
“MR. SPECHALSKE: I’m just asking for a motion of acquittal on that ground plus normal grounds that ....
“MR. HICKMAN: I believe that he has waived that defect in the indictment by failing to bring pretrial motion and by going ahead and trying the ease with the indictment as it is. I -will go look and see if I can find the Court of [sic] Rule, [sic] dealt with this in a long, long time.
“I want to go look at the Rules of Criminal Procedure. I think the Court has allowed to just say, look, it should — what was tried was the theft of the credit card — I mean, the debit card and the, whatchamacallit it, the cell phone.
“THE COURT: When I was reading it with them I said ‘choke.’ But should I instruct the jury that since the case was tried on the basis of — in the Hanh case, a credit card and cell phone, regardless of what the indictment says, it will be tried on that basis?
“MR. HICKMAN: Yes, sir.
“MR. SPECHALSKE: Judge—
“MR. HICKMAN: I’m sorry.
“I think that’s what the Court is supposed to do, but I can’t, for the life of me, pull the rule out of my head. It’s kind of like a civil case, you know, where—
“THE COURT: Sure.
“MR. HICKMAN: —we have issues tried by consent even though they’re not raised in a complaint or either they’re not raised by a defensive plea, it’s the same thing.
“THE COURT: Yes. I know that what you are doing is sort of amending to make it conform to the evidence.
“MR. HICKMAN: Yes, sir. And the State so moves.
“THE COURT: I’m going to deny your motion, Mr. Spechalske.
“MR. SPECHALSKE: Yes, sir, Judge. “THE COURT: And I’m going to bring the jury out and tell them that all of the indictment reads this way. That that issue has been — well, I’m not going to say waived.
“The case has been tried where it was the credit card and the cell phone and that is the way it is to be taken.
“MR. SPECHALSKE: Judge, of course I’ll object to that.
“THE COURT: Sure.
“MR. HICKMAN: That State notes that the indictment should read credit card and cell phone.
“THE COURT: Okay. I’d like the jury to come back on out.
“(Wherein, the jurors enter the courtroom.)
“THE COURT: All right. If you noticed when I was reading the indictment on that Hanh Ha case, I said theft of property, to-wit: a purse and its contents. That is what this says, but the law is that if a case is tried and all this stuff is gone through, we’ve gone through all this stuff, when we know that the actual articles were a credit card and a cell phone, this is, in effect, amended to be that. Okay.
“It was something that would have had to been called to my attention long before we got this far. So that case is not about a person’s [sic] contents, but about [sic] cell phone and a credit card because that’s how it was tried.
“Okay. Now, that’s it. You can begin your deliberations. I think Sandy will bring you the materials and jfall can start doing what you’re going to do.
“(Wherein, the jurors exit the courtroom.)
“MR. SPECHALSKE: Judge, of course, I’m going to make an objection that that wasn’t specifically the law.
“THE COURT: Okay.
“MR. HICKMAN: Nothing from the State, Judge.
“THE COURT: You think that that corrects it?
“MR. HICKMAN: Yes, sir.”

(R2.26-28.)

The jury retired and, after deliberation, returned to the courtroom. Whereupon the verdict was read.

“THE COURT: .... Read the jury’s verdict in the Hanh Ha ease.
“MR. WRIGHT [jury foreperson]: We, the jury, find the defendant, Jerry Day Hayes, guilty of Robbery in the 1st Degree as charged in the indictment.”

(R2.31.)

However inartfully phrased, Hayes did move for a judgment of acquittal on the ground that there was a variance between the description of the property stolen — a purse and its contents — as set out in the original indictment and the testimony of Hanh Ha that completely different items — a cellular telephone and a debit card — were actually stolen. He contends that the court erred by not granting his motion for a judgment of acquittal and by subsequently amending the indictment in its supplemental charge to the jury.

Hayes was charged with first-degree robbery under § 13A-8-41(a)(l), Ala.Code 1975, which incorporates the elements of § 13A-8-43, Ala.Code 1975, which provides as follows:

“Robbery in the third degree.
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

Therefore, theft of property, or the attempted theft of property, is an element of robbery. See Conner v. State, 955 So.2d 473, (Ala.Crim.App.2006).

Proof of the theft of certain property that varies from the description of the stolen property identified in the indictment is a fatal variance.

“ ‘The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.’ House [v. State], 380 So.2d [940] at 942 [ (Ala.Crim.App.1989) ]. ‘Not every variance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Reviewing a claim of variance requires use of a two step analysis: (1) was there in fact a variance between the indictment and proof, and (2) was the variance prejudicial.’ United States v. McCrary, 699 F.2d 1308, 1310 (11th Cir. 1983). ‘The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused.’ Berger, 295 U.S. at 82, 55 S.Ct. at 630. ‘Variance from the indictment is not always prejudicial nor is prejudice assumed.’ United States v. Womack, 654 F.2d 1034, 1041 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). The determination of whether a variance affects the defense will have to be made based upon the facts of each case. United States v. Pearson, 667 F.2d 12, 15 (5th Cir.1982).”

Smith v. State, 551 So.2d 1161, 1168-69 (Ala.Crim.App.1989).

“The unified theft offense created by § 13A-8-2, [Ala.Code 1975,] while reducing the risk of variance between pleading and proof, did not, however, eliminate the necessity for considering such variances as they might pertain to the nature of the property alleged to have been unlawfully controlled. Nothing in that section transposes ‘currency’ into a bank ‘check.’ And when in this case the charge involved ‘currency’ and the evidence established ‘checks,’ this was a fatal variance. See House v. State, 380 So.2d 940, 942-43 (Ala.1979).

Ex parte Airhart, 477 So. 2d 979, 980-81 (Ala. 1985).

“Section 15-8-90, Ala.Code 1975, provides: ‘An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.’ Section 15 — 8—91 [, Ala.Code 1975,] continues: ‘If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time.... ’ These statutes suggest that where there is a material variance, such as incorrectly describing a person (such as the victim) in the indictment, an amendment of the indictment is appropriate for a valid prosecution.
“In this case, the State made no attempt to amend or dismiss the indictment charging the armed robbery of Melanie Frazier and to reindict Verzone under a new indictment properly charging him with the armed robbery of Ju-liann Bradford. The State’s failure to do so resulted in a fatal variance between Verzone’s indictment and the proof presented at trial, and Verzone’s conviction under the original indictment is therefore void.
“We are persuaded that indicting Ver-zone for the armed robbery of Frazier, when the evidence at trial indicated that Bradford was the robbery victim, ‘expose[d] him to the danger of a second trial on the same charge’ for the robbery of Juliann Bradford. Ex parte A.T.M., 804 So.2d [171] at 173 [ (Ala.2000) ]. We therefore reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion.”

Ex parte Verzone, 868 So.2d 399, 402-03 (Ala.2003).

Although the State argues on appeal that no material variance existed, the cases cited by the State are inapposite. Hampton v. State, 815 So.2d 571 (Ala.Crim.App. 2001), held that an indictment may be amended during the trial court’s jury instructions to add a mens rea element when none is present in the statute defining the offense. Pace v. State, 652 So.2d 321 (Ala. Crim.App.1994), held that a variance between the description of the weapon used in a robbery in the indictment and the proof at trial resulted in no prejudice to the defendant because other counts in the indictment clearly informed the defendant that he was charged with shooting the victims with a pistol; thus, the discrepancy was not a material variance.

Hayes’s conviction for the first-degree robbery of Tammy Stewart in case no. CC-2007-3398 is affirmed. However, it appears that the trial court erred in amending the indictment over Hayes’s objection. Thus, because a fatal variance existed between the allegations in the indictment charging Hayes with the first-degree robbery of Hanh Ha in case no. CC-2007-3397 and the evidence presented at trial, we must reverse that conviction. ‘We note that based on Ex parte Wood, 564 So.2d 860 (Ala.1990), and State v. Saxton, 724 So.2d 77 (Ala.Crim.App.1998), it appears that the State may, if it so chooses, reindict [Hayes] for the first-degree robbery of [Hanh Ha].” Verzone v. State, 868 So.2d 406, 406 (Ala.Crim.App.2003) (opinion on remand from the Alabama Supreme Court).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . On September 29, 2009, we issued an order allowing Hayes to submit any additional issues or points to be considered on appeal. Hayes responded and argued that the judge incorrectly stated, in substance, that the law required him to sentence Hayes to life without parole under the Habitual Felony Offender Act and that that was error. Hayes’s argument is not well taken. Pursuant to § 13A-5-9(4), Ala.Code 1975, because Hayes had previously been convicted of a class A felony, the only sentence that the circuit court could impose in each case was life imprisonment without parole.

      . The trial record up to and including the portion of the trial containing the charge conference is designated as "R.” The court reporter began sequentially numbering the trial transcript anew, beginning with a new page 1 after the court had conducted the charge conference. The court’s instruction concerning closing arguments, the closing arguments, the court’s oral charge, the motion for a judgment of acquittal, the objections to the amendment of the indictment in the court's subsequent charge, and sentencing will be designated "R2.”

      . The testimony of Hanh Ha was that a debit card, not a credit card, was stolen; however, Hayes did not object on this ground.

      "1 For example, if the indictment charged theft of an airplane and the proof showed theft of an automobile, a fatal variance would exist even though both articles of property are means of transportation. There is a similar material distinction between a bank check and a federal reserve note, even though each is a medium of exchange.”


source: Caselaw Access Project

author: CANADY, C.J. PARIENTE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Anthony L. HANKERSON, Respondent.
    No. SC10-1074.
    Supreme Court of Florida.
    April 21, 2011.
    As Revised on Denial of Rehearing June 30, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, James J. Carney and Mark J. Hamel, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   CANADY, C.J.

The State seeks review of Hankerson v. State, 32 So.3d 175 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal reversed Anthony L. Hankerson’s conviction for possession of cocaine for sale, holding that the trial court should have granted Hankerson’s motion to suppress evidence obtained from a search undertaken without probable cause. In its decision, the Fourth District refused to consider the State’s argument on appeal that the evidence was legally discovered following a proper investigatory stop because the theory had not been raised in the trial court. The Fourth District’s refusal to consider the State’s theory expressly and directly conflicts with Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999), which held that “an appel-lee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court before.” We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We conclude that the Fourth District improperly curtailed the State’s argument on appeal and that the trial court properly determined that the search was based on probable cause. We therefore quash the Fourth District’s decision.

I. BACKGROUND

After being charged with possession of cocaine with intent to sell within 1000 feet of a school, Hankerson filed a motion to suppress evidence, asserting that the evidence was obtained from an illegal search and seizure. Specifically, Hankerson asserted that the law enforcement officer who searched him lacked probable cause to believe that he had committed a felony. At the hearing on the motion to suppress, the State contended that the search was properly based on probable cause and presented testimony from two law enforcement officers.

Officer Mark Lucas, of the Delray Beach Police Department, testified that on the afternoon of February 28, 2008, he participated in the surveillance of a residence that, based on information from residents of the neighborhood and confidential informants, was suspected of being the location of illegal drug transactions. Officer Lucas explained that he observed Hankerson arrive at the residence, exit an SUV, and approach a group of people on the front porch. While looking up and down the street, Hankerson opened his hand. Each of three individuals on the porch consecutively took something from Hankerson’s hand — Officer Lucas could not see what the objects were — and “quickly” gave him paper currency in return. Hankerson’s contact with the individuals was “[vjery brief.” Hankerson put the money in his pocket, returned to the SUV, and left. Officer Lucas testified that he had worked with the Delray Beach Police Department’s street-level narcotics unit for eleven years and that based on his surveillance that afternoon and his years of experience, he believed that Hankerson had participated in a narcotics transaction. According to Officer Lucas, “that brief of a contact, the limited eye contact, the way [Hanker-son] was looking up and down the street, and the exchange of paper currency for these items with three different subjects” was consistent with the hundreds of illegal drug transactions he had witnessed as a law enforcement officer. Because Officer Lucas believed that Hankerson had participated in an illegal drug transaction, he radioed to other officers, requesting that they perform a traffic stop of Hankerson.

Officer James Schmidt, of the Delray Beach Police Department, testified that on the afternoon of February 28, 2008, at the direction of Officer Lucas, he used his lights and sirens to pull over a vehicle driven by Hankerson. As he approached the vehicle, Officer Schmidt observed Han-kerson reach toward the center console and then down toward the floor. When Officer Schmidt asked Hankerson to exit the vehicle, Hankerson complied. Office Schmidt asked Hankerson if he had any drugs or weapons. Hankerson stated that he was “out of the game” and lifted his shirt to show his torso. Officer Schmidt asked Hankerson if he had anything in his shoes. Before Officer Schmidt could ask Hankerson to remove his shoes, Hanker-son began doing so. Officer Schmidt testified that Hankerson appeared “a little bit hesitant.” Hankerson began to remove his right shoe and then removed his left shoe instead. When Hankerson did take off his right shoe, he attempted to conceal in his hand a bag that had been in his shoe. The bag contained small, zip-top bags filled with a substance that Officer Schmidt suspected was cocaine. Officer Schmidt arrested Hankerson and field-tested the substance in the bags, which tested positive for cocaine. Officer Schmidt testified that based on his experience, each of the small bags had a street value of about twenty dollars. Officer Schmidt further testified that he found sixty-three dollars in Han-kerson’s right front pocket.

The trial court denied Hankerson’s motion to suppress. The trial court found that Officer Lucas had “probable cause to believe that he saw a narcotic transaction, even though he could not identify the substance” and that “all of the other facts and circumstances give cause for the subsequent search of Mr. Hankerson.” After a jury trial, Hankerson was convicted of one count of the lesser included offense of possession of cocaine for sale and sentenced to ten years in state prison.

Hankerson appealed his conviction and sentence to the Fourth District. Hanker-son asserted that because Officers Lucas and Schmidt did not have probable cause to search him, the trial court should have granted his motion to suppress. In response, the State offered two theories as to why the trial court did not err in denying the motion to suppress. The State contended that the officers did have probable cause to search Hankerson and, alternatively, that Officer Schmidt discovered the evidence as a result of a lawful investigative stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which was followed by Hankerson’s voluntary removal of his shoes.

Relying on Coney v. State, 820 So.2d 1012, 1013-15 (Fla. 2d DCA 2002) (holding there was no probable cause to search where law enforcement officers observed the defendant engage in a single hand-to-hand transaction in an area known for drug activity), the Fourth District concluded that the trial court erred in finding that the officers had probable cause to search Hankerson. As to the State’s theory that Officer Schmidt merely conducted an investigatory stop, the Fourth District explained that it did not consider that argument because the State had not raised that theory in the trial court.

The State petitioned this Court for review of the Fourth District’s decision on the basis of express and direct conflict. We granted review based on conflict with Radio Station WQBA, which held that an appellee need not have previously raised a basis for affirming the trial court’s decision in order to assert that position on appeal.

II. ANALYSIS

In the analysis that follows, we first address the conflict between the Fourth District’s decision and our decision in Radio Station WQBA. We then explain why the trial court did not err in denying Hankerson’s motion to suppress.

In Radio Station WQBA, this Court resolved a conflict regarding whether a trial court’s ruling could be affirmed based on a theory or principle of law that was not argued to the trial court. This Court adhered to the principle generally known as the “tipsy coachman” rule, explaining that a trial court’s ruling “will be upheld if there is any basis which would support the judgment in the record.” Radio Station WQBA, 731 So.2d at 644.

This Court then further explained that because a trial court’s ruling must be affirmed where the record supports any legal basis for the judgment, an appellee may raise an argument on appeal that was not raised in the trial court so long as the argument has a reasonable basis in the record.

If an appellate court, in considering whether to uphold or overturn a lower court’s judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court. See MacNeill v. O’Neal, 238 So.2d 614, 615 (Fla.1970). In MacNeill, this Court cited prior cases holding that an appellee “not aggrieved by the lower court’s decision need not file cross-assignments of error in order to have the points considered on appeal.” See Cerniglia v. C & D Farms, Inc., 203 So.2d 1 (Fla.1967); Hall v. Florida Bd. of Pharmacy, 177 So.2d 833 (Fla.1965). “These cases recognize that a party who is content with the judgment below need not assign error in order to support that judgment and is not limited in the appellate courts to the theories of recovery stated by the trial court.” MacNeill, 238 So.2d at 615. While the Rules of Appellate Procedure no longer provide for assignments of error, what the MacNeill court said is analogous to saying that an appellee need not raise and preserve alternative grounds for the lower court’s judgment in order to assert them in defense when the appellant attacks the judgment on appeal.

Id. at 645. In brief, this Court concluded that the reviewing court may not preclude an appellee from raising an alternative basis to support the trial court’s ruling solely because the argument was not preserved.

We adhere to our decision in Radio Station WQBA on this point. A trial court’s ruling should be upheld if there is any legal basis in the record which supports the judgment. It follows that to aid the appellate court in its task, the appellee should be permitted to explicate any legal basis supporting the trial court’s judgment. Accordingly, the Fourth District erred in refusing to consider the State’s argument on appeal that Hankerson voluntarily removed his shoes following a proper investigatory stop.

We need not, however, consider the merits of the State’s investigatory-stop theory because we conclude that the trial court correctly accepted the State’s argument that the officers had probable cause to search Hankerson. See PK Ventures, Inc. v. Raymond James & Assocs., Inc., 690 So.2d 1296, 1297 n. 2 (Fla.1997) (“Once a court obtains jurisdiction, it has the discretion to consider any issue affecting the case.”).

Law enforcement officers have probable cause to conduct a search where “ ‘the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” State v. Betz, 815 So.2d 627, 633 (Fla.2002) (alteration in original) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The United States Supreme Court has expressly stated that a law enforcement officer “may draw inferences based on his own experience in deciding whether probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Supreme Court has further explained that probable cause is a “fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The “standard of probable cause” is “only the probability, and not a prima facie showing, of criminal activity.” Gates, 462 U.S. at 235, 103 S.Ct. 2317 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).

In reviewing a trial court’s ruling on a motion to suppress, the appellate courts defer to the trial court’s factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the factual circumstances. Twilegar v. State, 42 So.3d 177, 192 (Fla. 2010), cert. denied, — U.S. -, 131 S.Ct. 1476, 179 L.Ed.2d 315 (2011). Having reviewed the evidence presented at the hearing on Hankerson’s motion to suppress, we agree with the trial court’s conclusion that Hankerson’s actions on the afternoon of February 28, 2008, would have led a person of reasonable caution to believe that Hankerson had committed a criminal offense.

While a probable cause determination generally is so “multi-faceted” that “one determination will seldom be a useful ‘precedent’ for another,” Ornelas, 517 U.S. at 698, 116 S.Ct. 1657 (quoting Gates, 462 U.S. at 238 n. 11, 103 S.Ct. 2317), the district courts of appeal have found probable cause to exist in cases involving similar factual circumstances. For example, in Knox v. State, 689 So.2d 1224, 1225 (Fla. 5th DCA 1997), the district court determined that the arresting officers had probable cause to search Knox after observing him, while in an area suspected to be the site of illegal drug transactions, engage in a series of transactions during which he leaned into a vehicle and gave the occupant a small object in exchange for cash. In that case, one of the officers testified that based on his experience, the observed transactions were consistent with illegal drug transactions.

Similarly, in Revels v. State, 666 So.2d 213, 214-15 (Fla. 2d DCA 1995), the district court determined that the arresting officers had probable cause to search the defendant where the officers observed a man exit a home known to be the site of illegal drug transactions, approach Revels, and place a small object in Revels’ left hand while Revels held cash in his right hand. Revels was the third person observed that day to have arrived at the house to engage in such a transaction. As in Knox, one of the officers testified that the “overall transaction was very similar to numerous other cocaine transactions that he had witnessed prior to this arrest.” Id. at 214.

Here, Hankerson arrived at a home that had been the subject of complaints about drug activity and engaged in a series of hand-to-hand transactions — exchanging a small item for paper currency — that Officer Lucas described as consistent with hundreds of illegal drug transactions that he had observed.

In addition, Officers Lucas and Schmidt testified about specific details of Hanker-son’s behavior and demeanor that supported the trial court’s conclusion that the officers had probable cause to believe that Hankerson had engaged in criminal activity. Officer Lucas testified that rather than making eye contact, Hankerson looked up and down the street as he interacted with three of the individuals on the porch and that Hankerson’s contact with the individuals was very brief. See Williams v. State, 717 So.2d 1109, 1109 (Fla. 5th DCA 1998) (concluding that officer had probable cause to conduct search where in a location known for frequent drug sales, the defendant looked to see if anyone was watching before extracting a small item from the buttocks area of his pants and exchanging it for an unknown item).

We disagree with the Fourth District’s conclusion that the instant case was so factually similar to Coney as to require suppression of the evidence. In Coney, two law enforcement officers, who were conducting surveillance in an area where many drug arrests previously had been made, observed Coney approach a car and put his closed hand into the car. As the car left, the officers “saw that Coney held money.” Coney, 820 So.2d at 1013. The officers could not see what had been in Coney’s hand but testified that based on their training and experience, they believed that they had observed a drug transaction. The district court concluded that the officers did not have probable cause to search Coney based on their observation of “a single suspicious event.” Id. at 1014-15. Notably, in the instant case, the law enforcement officers observed a series of quick exchanges with three separate individuals, not a single transaction. Officer Lucas saw Hankerson offer several small objects on his open palm to the individuals on the porch, whereas the officers in Coney merely saw the defendant reach into a car with a closed hand. And finally, while Officer Lucas testified that Hankerson repeatedly examined his surroundings rather than making eye contact with the individuals on the porch, Coney does not include any discussion of the defendant’s demeanor during the suspected drug transaction.

When considered in their totality, the factual circumstances of this case support the trial court’s conclusion that Officers Lucas and Schmidt had probable cause to search Hankerson. Accordingly, the trial court did not err in denying Hankerson’s motion to suppress.

III. CONCLUSION

Based on the foregoing, we quash the Fourth District’s decision and remand for proceedings consistent with this opinion.

It is so ordered.

LEWIS, QUINCE, POLSTON, and LABARGA, JJ., concur.

PARIENTE, J., dissents with an opinion, in which PERRY, J., concurs.

PARIENTE, J.,

dissenting.

I dissent for two reasons. First, I question the majority’s acceptance of jurisdiction in this case on a basis that is not dispositive of the substantive, issue that it addresses. Second, and more importantly, while the facts establish reasonable suspicion for the officer to have engaged in an investigatory stop of Hankerson, I dissent because the majority expands the circumstances under which probable cause would support a search after an officer observes suspected hand-to-hand drug transactions that occur within a matter of seconds. In doing so, the majority fails to enunciate proper guidelines to assist lower courts in these very fact-specific cases and also relies on district court decisions that are materially distinguishable from the case under review.

There is no question that sufficient facts existed to support Officer Lucas’s objectively reasonable suspicion that Hankerson was involved in drug dealing. However, these facts simply do not rise to the level of the necessarily higher threshold of probable cause to believe that Hankerson had committed a crime. See Baptiste v. State, 995 So.2d 285, 291 (Fla.2008) (“Reasonable suspicion is a less demanding standard than probable cause(quoting Alabama v. White, 496 U.S. 325, 380, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990))). I believe that we would be hard-pressed to find a neutral magistrate who would issue a search warrant based on facts related by Officer Lucas at the suppression hearing. If the facts could not support the issuance of a warrant, they certainly cannot justify a warrantless search. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (“The scope of a war-rantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.”).

Reduced to their essence, the operative facts of this case are as follows. Officer Lucas, an experienced narcotics officer, attended homeowners’ meetings at which he received hearsay information that the location in question was a source of drugs. The officer also mentioned receiving information from confidential informants regarding this residence, but he did not relay any history of their reliability. The officer himself did not know Hankerson, nor had anyone identified Hankerson as a drug dealer. No prior arrests had been made at this location. The critical surveillance during which Hankerson exchanged money for items “very small in nature” lasted a matter of “seconds.” Finally, in the course of this exchange, Hankerson made limited eye contact and looked up and down the street. While certainly suspicious, these facts are simply not enough to establish probable cause to conduct a search.

The reason for ensuring that we have a uniform standard for evaluating cases involving surveillance of a suspected hand-to-hand drug transaction was compellingly explained by the Second District Court of Appeal:

There are some citizens who fear that the Fourth Amendment has become a victim in the war against drugs.... [W]e emphasize that society’s legitimate fear of crack cocaine and the ease with which small quantities of this drug can be concealed are not valid reasons to dilute the Fourth Amendment probable cause standard.

Revels v. State, 666 So.2d 213, 217 (Fla. 2d DCA 1995). The difference between reasonable suspicion and probable cause under the Fourth Amendment is critical to ensure that citizens are protected from unreasonable searches and seizures. With probable cause, the officer has the basis not only to arrest the individual but to search the individual without any further showing. See Jenkins v. State, 978 So.2d 116, 126 (Fla.2008) (“[I]t is permissible for a search incident to arrest to be conducted prior to the actual arrest, provided that probable cause to arrest existed prior to the search, and the fruits of the search were not necessary to establish probable cause.”). Whereas with reasonable suspicion, the State must make additional showings in order to justify a search following an investigatory detention and, absent such showings, reasonable suspicion cannot form the basis for an arrest.

As we explained in Popple v. State, 626 So.2d 185, 186 (Fla.1993), there are three levels of police-citizen encounters. The first level is categorized as a “consensual encounter,” during which the citizen is free to leave, there is minimal police contact, and Fourth Amendment protections are not triggered. Popple, 626 So.2d at 186. Under the second and third levels, however, constitutional safeguards are invoked. The second level involves an “investigative stop,” during which a police officer may temporarily detain a person only if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Id. The third level concerns an “arrest” and must be supported by probable cause to believe a crime has been or is being committed. Id. In my view, the majority’s holding blurs the line between the second and third levels.

In light of the critical distinction between reasonable suspicion and probable cause, and the abundance of case law stemming from lower court decisions dealing with situations similar to the one we address in this case, I believe it is necessary for this Court to enunciate proper guidelines to assist the lower courts in applying Fourth Amendment principles to these very fact-specific scenarios.

While all Fourth Amendment cases use a “totality of the circumstances” analysis in determining whether probable cause exists to justify a search, I would adopt the guidelines set forth in Revels to provide a degree of uniformity in this imprecise area of the law in order to distinguish between those circumstances establishing probable cause and those establishing the lower threshold of reasonable suspicion.

In Revels, after examining a line of cases with similar drug-transaction surveillance, the Second District formulated a list of six factors that Florida courts have commonly considered in determining whether observations of such transactions create reasonable suspicion or probable cause:

These cases demonstrate the great difficulty, if not impossibility, involved in delineating the minimum factual basis necessary to establish probable cause under all the circumstances of a drug surveillance operation. These cases do disclose at least six factors that are commonly evaluated at suppression hearings to determine whether the evidence proves probable cause or merely reasonable suspicion in the context of such surveillance.
1. The Training and Experience of Law Enforcement. See Doctor v. State, 596 So.2d 442 (Fla.1992). A well-trained officer with years of drug experience is not necessarily more credible than any other police officer. However, such an officer is more likely to know what to observe and to distinguish innocent behavior from incriminating behavior. See, e.g., P.L.R. v. State, 455 So.2d 363, 364 (Fla.1984) (officer observed that manila envelopes were used to store nickel bags of marijuana in over 100 occasions) ....
2. The Quality of the Surveillance Procedures. A well-controlled surveillance operation with good visibility and with adequate methods to both obtain and preserve evidence allows the state to present detailed proof at the suppression hearing....
3. The History of the Specific Location Under Surveillance. Rumor and reputation are no substitute for fact. Actual proof of ongoing or recent drug activity at a specific location is far more likely to assist in establishing probable cause than a general belief that an entire street or neighborhood is a “high drug area.”....
4. Recent Events at the Location. The fact that drugs were sold at a location last month may not necessarily indicate that drugs will be sold there tomorrow. ... Detailed information proving prior sales to other persons immediately preceding the arrest may establish the difference between reasonable suspicion and probable cause....
5. Prior Knowledge of the PaRies Involved. If the police develop information prior to an arrest concerning the parties’ involvement with drugs, that information may help transform reasonable suspicion into probable cause....
6.A Detailed Description of the Entire Event. The case law is replete with instances in which one or two factual details observed by an officer transforms reasonable suspicion into probable cause. Likewise, case law includes examples of premature arrests made before enough circumstances have occurred to establish probable cause. Whenever an officer recalls a detail on the witness stand that is not in his or her arrest report, the officer’s credibility becomes a significant issue. Although an officer specializing in drug offenses may be more observant of critical evidence, the many transactions that he or she observes must make it difficult to recall each transaction with detail. Thus, detailed testimony of the event, buttressed by a timely written arrest report containing those details, is often critical at a suppression hearing.

Revels, 666 So.2d at 216-17 (citation omitted); see also Strickroth v. State, 963 So.2d 366, 369 (Fla. 2d DCA 2007) (“Factors supporting a finding of probable cause include (1) evidence of the officers training and experience in drug investigations; (2) well-planned and well-controlled surveillance procedures; (3) actual proof of the áreas history of drug activity; (4) detailed proof of prior drug sales immediately preceding the arrest; (5) prior knowledge of a suspects involvement in drug activity; and (6) a detailed written arrest report that confirms factual details that establish probable cause.”).

A thorough application of these guidelines would serve to protect citizens against unreasonable searches and seizures while ensuring adequate police protection. In fact, other district courts have subsequently recognized these factors as significant in determining whether an officer’s observation of a hand-to-hand transaction creates reasonable suspicion or probable cause. See, e.g., Chaney v. State, 956 So.2d 535, 539 (Fla. 4th DCA 2007) (“Florida courts have considered several factors to be significant in determining whether observation of a hand-to-hand transaction created reasonable suspicion or probable cause. These factors include the experience and training of the officer in narcotics investigations, reputation of the location for drug activity, history of previous arrests from that site, prior knowledge of the suspects, quality and extent of surveillance, and detailed description of the event.”); Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006) (noting factors that may be considered in determining whether an officer had a reasonable suspicion of criminal activity to justify “the investigatory stop” include “the officer’s narcotics experience; the reputation of the location for drive-up transactions; the extended period of the surveillance; and the history of previous, multiple arrests from that site” (quoting Burnette, 658 So.2d at 1171)).

As the Second District did in Revels, I would apply those guidelines here and would also urge appellate courts to analyze these types of eases by employing similar standards. In applying the Revels guidelines to the facts of this case, while it is certainly clear that the officers possessed the requisite level of training and experience in the field and gave a detailed description of the entire event, it is also equally clear that the officers lacked actual proof of ongoing or recent drug activity at the specific location in question and had not developed information prior to Han-kerson’s arrest concerning the parties’ involvement with drugs. There was no indication that the officers knew Hankerson’s identity or the identity of any of the individuals to whom he allegedly sold drugs. Thus, applying the factors identified in Revels — a decision upon which the majority relies to affirm the trial court’s finding of probable cause — leads to the conclusion that the totality of facts and circumstances present here supports a finding of reasonable suspicion, not probable cause.

In applying these factors, it is helpful to underscore their importance in relation to the decisions upon which the majority relies: Revels, 666 So.2d at 216-17, Knox v. State, 689 So.2d 1224 (Fla. 5th DCA 1997), and Williams v. State, 717 So.2d 1109 (Fla. 5th DCA 1998). The majority criticizes the Fourth District for relying on Coney v. State, 820 So.2d 1012, 1013-15 (Fla. 2d DCA 2002), in which the Second District found no probable cause where officers observed the defendant engage in a single hand-to-hand transaction characterized by the district court as a “single suspicious event.” However, Revels, Knox, and Williams are materially distinguishable from this case and are not properly relied upon for support of the majority’s holding.

For instance, in Revels, two experienced narcotics officers observed a specific house known to be in a location where crack cocaine was sold. Revels, 666 So.2d at 214. In contrast to this case, the officers’ knowledge about the location “was not based on rumor or hearsay, but on the fact that the police had made numerous narcotics arrests for transactions occurring at the house.” Id. (emphasis added). Before arresting the defendant, the officers monitored the house for at least a few minutes, and while doing so, “observed two separate events in which cars pulled up to the curb in front of the house.” Id. (emphasis added). On both occasions, the officers observed hand-to-hand transactions in which currency was exchanged for an unidentified object. Id. Within ten minutes of these transactions, the defendant arrived at the same location on his bicycle. Id. A man from the residence walked over to the defendant and gave him a small object in exchange for money. Id. At the defendant’s suppression hearing, the police officer who made these observations testified that “the overall transaction was very similar to numerous other cocaine transactions that he had witnessed prior to this arrest.” Id.

In contrast, in this case, Officer Lucas’s suspicions of the residence in question appeared to be unconfirmed; he did not make prior narcotics arrests for transactions occurring at the house. Further, Officer Lucas did not witness individuals engage in separate transactions beforehand; rather, the officer witnessed Han-kerson conduct “very brief’ and “consecutive[ ]” contact with three individuals, lasting merely “seconds” in total.

In Knox, prior to conducting a search of defendant Knox, officers observed him for a period of two hours — an important fact that the majority omits. In the Knox case, law enforcement officers experienced in narcotics identification and arrests were assigned to conduct surveillance within the vicinity of a discount beverage store where numerous complaints of narcotics dealings had been previously lodged. Knox, 689 So.2d at 1225. During that two-hour time period, officers witnessed Knox engage in several transactions; he approached vehicles and passed “something” to the vehicles’ occupants in exchange for cash. Id. Although the items exchanged were too small to be seen, one officer testified that “this conduct was consistent with his experience observing narcotics transactions elsewhere.” Id. The Fifth District concluded “from the totality of the circumstances that the officers’ observation of Knox’s conduct during the two-hour surveillance established sufficient probable cause for an experienced officer to believe that Knox was engaged in criminal conduct that justified a search for illegal drugs.” Id. (emphasis added). As I stressed above when distinguishing the instant case from Revels, unlike in Knox, the “series of transactions” Officer Lucas observed were consecutive exchanges that lasted only “seconds” in total; it simply was not an ongoing or lengthy observation on the part of Officer Lucas.

The majority also places too much emphasis on Williams for the proposition that Hankerson’s demeanor during this exchange (i.e., his lack of eye contact and his looking up and down the street) supports the trial court’s finding of probable cause. In contrast to this case, in Williams, the Fifth District concluded that probable cause existed when an experienced narcotics officer observed the defendant, “who was known to the officer as one who hangs out on the streets and ha[d] been subject to various arrests,” extract a small item from the buttocks area “after looking around to assure himself that no one was watching” and exchange it for another unknown item. Williams, 717 So.2d at 1109 (emphasis added). In reaching this conclusion, Williams noted that the buttocks area is “an area that the officer recognizes as a hiding place for contraband.” Id. Clearly, extracting a small item from the buttocks area is a salient factor far different than not making eye contact, which could have multiple, innocent explanations.

Even more noteworthy is the fact that the Williams decision cites to several of the factors the Second District found dis-positive in Revels, including a location that was known for frequent drug sales due to “previous arrests” that took place there and that the defendant was “a person known to the officer as one who hangs out on the streets and ha[d] been subject to various arrests.” Williams, 717 So.2d at 1109. Further, the Williams decision emphasized that the defendant was “well known as a street person.” Id. Here, there was no testimony that Hankerson was known by the officers as one subject to various arrests, nor was there testimony that this location was one at which “previous arrests” had been made.

Finally, the majority criticizes the Fourth District’s reliance on the Coney decision, in which the Second District found probable cause to be lacking. The majority relies on three factors to distinguish that case from the facts we confront today: Officer Lucas observed a series of quick exchanges with three, separate individuals, not a single transaction; Officer Lucas observed Hankerson offer several small objects on his open palm as opposed to reaching into a car with a closed hand; and Officer Lucas referenced Hankerson’s demeanor during the observed exchanges. See majority op. at 507. However, I cannot agree that those distinctions are meaningful enough to warrant a different outcome.

The police in Coney were conducting surveillance in an area where many drug arrests had previously been made. Coney, 820 So.2d at 1013. They observed Coney approach on a bicycle and place his closed hand into a car. Id. The police could not see what was in his hand, but as the car left, they saw Coney holding money. Id. From their training and experience, the officers believed they had seen a drug transaction. Id. The trial court agreed and denied Coney’s motion to suppress. The Second District reversed, noting that the officers did not see what was in Coney’s hand when he reached into the vehicle and did not see Coney involved in more than one transaction. Id. at 1014. Distinguishing the case before it from Revels, where officers observed two, separate hand-to-hand transactions in which a person sitting outside the house approached cars that pulled up to the curb, the Second District stressed that “the officers here observed a single suspicious event.” Id. at 1014-15. In other words, “[w]hile the officers saw money in Coney’s hand after the transaction, and while they had a [reasonable] suspicion that a crime might have occurred, they did not have probable cause to effect Coney’s arrest.” Id. at 1015.

Regardless of Hankerson’s demeanor, which could have had many innocent explanations, or the fact that his palm was open instead of closed, which the majority indicates is of some significance, in my view, the Fourth District’s reliance on Coney was not improper. Certainly, it was not a reason to quash the Fourth District’s decision. Although Hankerson engaged in three transactions — or as the majority describes, a “series of quick exchanges with three separate individuals” — they were not separate incidents of conduct. Majority op. at 507. Rather, this quick exchange, lasting only seconds in total, was in fact nothing more than “a single suspicious event,” much like the conduct the district court found to be dispositive in Coney. Simply stated, when Hankerson approached the location in question, he exchanged items with a group of people consecutively, not with separate individuals at different points in time. Accordingly, I agree with the basis for the Fourth District’s holding that probable cause did not exist:

[I]n this case [Officer] Lucas did not see what [the] defendant exchanged for money. [Officer] Schmidt did not see what was in his shoe. They did not see him similarly involved in more than one occasion. These patterns on which they rely also occur in innocent public transactions and are not unique to narcotics violations. These patterns may be enough to inform a suspicion for further investigation — perhaps even enough for a Terry stop or a stop under the Florida Stop and Frisk Law — but they fall short of the requirements for probable cause. As in Coney, police did not have probable cause to search him without his consent.

Hankerson v. State, 32 So.3d 175, 177 (Fla. 4th DCA 2010) (footnotes omitted).

To conclude, in comparing the case at bar to Revels, Knox, and Williams, noticeably absent from the probable cause equation is actual proof of ongoing or recent drug activity at the residence where Officer Lucas first observed Hankerson (Revels’ third factor), testimony providing detailed information proving sales to other persons immediately preceding the arrest (Revels’ fourth factor), and evidence regarding the officer’s prior knowledge of Hankerson’s personal involvement with drugs (Revels’ fifth factor). Therefore, while the majority properly relies on a talismanic, but nebulous, “totality of the circumstances” analysis, the facts support reasonable suspicion and not the more demanding Fourth Amendment requirement of probable cause. As a result, the State failed to meet its burden of proving that the officers had probable cause to search Hankerson, to request that he remove his shoes, or to seize the contents therein. Accordingly, as the Fourth District correctly observed, the trial court should have granted Hankerson’s motion to suppress.

For all these reasons, I dissent.

PERRY, J., concurs.

      . See, e.g., Ray v. State, 40 So.3d 95 (Fla. 4th DCA 2010); Wallace v. State, 8 So.3d 492 (Fla. 5th DCA), review denied, 19 So.3d 312 (Fla.2009); Chaney v. State, 956 So.2d 535 (Fla. 4th DCA 2007); Strickroth v. State, 963 So.2d 366 (Fla. 2d DCA 2007); Huffman v. State, 937 So.2d 202 (Fla. 1st DCA 2006); Santiago v. State, 941 So.2d 1277 (Fla. 4th DCA 2006); Walker v. State, 846 So.2d 643 (Fla. 2d DCA 2003); Glover v. State, 843 So.2d 919 (Fla. 5th DCA 2003); Belsky v. State, 831 So.2d 803 (Fla. 4th DCA 2002); Ford v. State, 783 So.2d 284 (Fla. 2d DCA 2001); League v. State, 778 So.2d 1086 (Fla. 4th DCA 2001); State v. Gandy, 766 So.2d 1234 (Fla. 1st DCA 2000); D.A.H. v. State, 718 So.2d 195 (Fla. 2d DCA 1998); State v. K.S., 694 So.2d 104 (Fla. 5th DCA 1997); Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995); Walker v. State, 636 So.2d 583 (Fla. 2d DCA 1994) State v. Caicedo, 622 So.2d 149 (Fla. 3d DCA 1993); Elliott v. State, 597 So.2d 916 (Fla. 4th DCA 1992); Winters v. State, 578 So.2d5 (Fla. 2d DCA 1991).


author: PADOVANO, J. WETHERELL, J.,

text:
    Brian TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6626.
    District Court of Appeal of Florida, First District.
    May 23, 2011.
    Rehearing Denied Aug. 1, 2011.

      Matt Shirk, Public Defender; Richard Gordon and Michelle Barki, Assistant Public Defenders, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PADOVANO, J.

Brian Taylor seeks a writ of prohibition to prevent further proceedings in the trial court on the state’s petition to have him involuntarily committed as a sexually violent predator. We conclude that Mr. Taylor was not in lawful custody at the time the petition was filed and that the circuit court therefore lacks jurisdiction to proceed with the case. Accordingly, we grant the petition.

Mr. Taylor was convicted in 1988 of armed sexual battery and sentenced to a term of fifteen years. On May 30, 2002, approximately one week before he was scheduled to be released from the Department of Corrections on the completion of his sentence, the state filed a petition to have him involuntarily committed under the Jimmy Ryce Act, sections 394.910 through 394.932, Florida Statutes. The trial court found probable cause in an ex parte hearing that day and appointed counsel.

An adversarial probable cause hearing was set for July 10, 2002, a date more than thirty days from the finding of probable cause and therefore beyond the time limit for trial. See § 394.916(1), Fla. Stat. (2002). The prosecutor assigned to the case at that time stated that the date for the hearing was set by an informal agreement. She explained that she and the defense lawyer had agreed to an adversarial probable cause hearing beyond the original time limit for the trial, but that they also agreed that, if the trial judge were to find probable cause again, the trial would be held within thirty days of the order. The prosecutor described this arrangement as a “limited waiver of speedy trial.”

The prosecution and defense subsequently agreed to postpone the adversarial hearing, and it did not take place until December 5, 2002. The trial judge found probable cause, but, for reasons that are not apparent from the record, a trial date was not set at that time. Approximately two and one half years later, the court entered an order setting the trial for September 13, 2005.

The state moved to continue the trial beyond the September date, on the ground that one of its expert witnesses had changed his opinion and that he no longer thought that Mr. Taylor met the criteria for involuntary commitment. Mr. Taylor believed this recent development might lead to a settlement and for that reason he did not object to the state’s motion. The state alleged in the motion that Taylor had waived his right to a speedy trial. This was evidently a reference to the limited waiver of the original thirty-day time period for the adversarial probable cause hearing. There is no written waiver of speedy trial in the record. Nor does it appear that Mr. Taylor waived his right to a speedy trial on the record in open court. The state’s motion to continue was granted. The order on the motion did not set a date for the trial.

Nearly five more years passed, and the case had still not been set for trial. Then on February 4, 2010, Mr. Taylor filed a motion to dismiss the state’s petition for involuntary commitment. The remedy he sought in the motion to dismiss was an immediate release from custody. The trial court denied the motion, stating “There is a thirty-day ... statutory right to a speedy trial, but I think there accompanies some obligation on the part of the civil respondent that differs from a criminal case.” The trial court reasoned that the respondent must take some action to protect his right to a trial within the time period allowed by law.

Mr. Taylor asked the trial court to reconsider this ruling in light of this court’s decision in Boatman v. State, 39 So.3d 391 (Fla. 1st DCA 2010) rev. granted, 43 So.3d 690 (Fla.2010), that a respondent is substantially prejudiced if the court grants a request by the state for a continuance at a time when the defendant has already served his criminal sentence. This court denied relief in Boatman, but only because the request for release was made for the first time in the appeal from the final judgment of involuntary commitment. The court concluded that the respondent should have sought immediate release in the trial court after the expiration of the time limit and before the trial. Mr. Taylor argued that the order denying his motion should be reconsidered on the authority of the Boatman case, because he had, in fact, demanded his immediate release in the trial court.

The trial judge reviewed the Boatman opinion and ultimately agreed that Mr. Taylor’s motion to dismiss should have been granted. The judge informed the lawyers that the state’s petition would be dismissed without prejudice. At that point, counsel for the state informed the court that the state would file an appeal from the order dismissing its petition and invoke the automatic stay provision in rule 9.310(b)(2) of the Florida Rules of Appellate Procedure. Counsel for Mr. Taylor argued that the automatic stay should be vacated because the state did not have a reasonable likelihood of prevailing on appeal. The trial judge decided that the automatic stay would remain in place during the course of the state’s appeal.

The order dismissing the state’s petition was filed on July 16, 2010. The state filed its notice of appeal later that day with the clerk of the circuit court, but the clerk did not prepare a certified copy of the notice or otherwise transmit the notice to this court.

On September 30, 2010, the state filed a pleading designated as an “amended” petition under the Jimmy Ryce Act. On the same day, the state dismissed the appeal it had previously taken from the order dismissing its original petition -without prejudice. The trial court entered an order directing that Mr. Taylor be released from custody effective October 1, 2010, but the court is now proceeding over his objection on the state’s “amended” petition for involuntary commitment. Mr. Taylor seeks review by prohibition in this court to prevent the trial court from taking further judicial action on the state’s petition.

Prohibition is an extraordinary remedy that used to restrain the unlawful use of judicial power. See State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 192 So. 175 (1939); English v. McCrary, 348 So.2d 293 (Fla.1977). A writ of prohibition may be issued by an appellate court to prevent a lower court from acting without jurisdiction or in excess of its jurisdiction. See Peltz v. District Court of Appeal, Third District, 605 So.2d 865 (Fla.1992). The district courts of appeal have judicial power to issue writs of prohibition and other extraordinary -writs under the express provision of Article V, section 4(b)(3) of the Florida Constitution. Based on these authorities, we conclude that this court has jurisdiction and that prohibition is the proper remedy.

A proceeding under the Jimmy Ryce Act must be initiated at a time when the respondent is in lawful custody. This requirement is jurisdictional. As the supreme court stated in Larimore v. State, 2 So.3d 101, 103 (Fla.2008), the statute “requires that an individual be in lawful custody when the State takes steps to initiate civil commitment proceedings in order for the circuit court to have jurisdiction to adjudicate the commitment petition.” The respondent in that case was physically in custody at the time the petition was filed. However, his gain time had been forfeited unlawfully and he should have been released by that time. Because the respondent was not in lawful custody when the petition was filed, the supreme court concluded that that circuit court lacked jurisdiction to entertain the petition.

The supreme court referred in Larimore to the respondent’s custodial status at the time “when initial steps were taken” to initiate commitment proceedings. Id. at 117. There can be no question that Mr. Taylor was in lawful custody on May 5, 2002, when the first petition for involuntary commitment was filed. If that is the operative date, there is no need to consider the lawfulness of his custody after the dismissal of the first petition. On the other hand, if the operative date is September 30, 2010, the filing date of the petition that is now before the circuit court, we must determine whether Mr. Taylor was in lawful custody when that petition was filed.

On this preliminary issue we conclude that the circuit court has jurisdiction only if Mr. Taylor was in lawful custody on September 30, 2010, the date of filing the petition that is now before the court. It makes no difference that he was in lawful custody on May, 5, 2002, the date of the state’s first attempt to have him involuntarily committed. It would make little sense to allow the state to file a second petition for commitment after the first one is dismissed for failure to bring the respondent to trial on time, and then to conclude that the court has jurisdiction so long as the respondent was in lawful custody at the time the first petition was filed. A conclusion such as that would vitiate the time limitations set out in the statute.

It does not improve the state’s position that the original petition was dismissed without prejudice or that the state elected to style the second petition as an “amended petition.” The record reveals that the amended petition does not alter or modify the original petition in any respect. Nothing of substance was added or removed. If we were to say that the second petition somehow relates back to the first one and therefore that we need only determine whether the respondent was in lawful custody when the first one was filed, the effect of such a conclusion would be to enable the state to cure a failure to meet the deadlines in the statute simply by refiling the petition. That is plainly not the case. The statutory time limits were put in place for good reason, and the courts have an obligation to enforce those time limits.

This brings us to the question of whether Mr. Taylor was in lawful custody when the state filed the second petition for involuntary commitment. To answer this question, we must first consider the effect of the order dismissing the first petition on the ground that the trial had not been held within the statutory time limit.

Section 394.916(1) states that “[wjithin 30 days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” The supreme court con-eluded in State v. Goode, 880 So.2d 817 (Fla.2002), that the thirty-day time period in this statute is mandatory, but not jurisdictional. Subsequently, in Osborne v. State, 907 So.2d 505 (Fla.2005), the court held that the proper remedy for failure to meet the time limit is a dismissal without prejudice. The court explained that “[a] dismissal of a petition with prejudice would terminate the case on procedural grounds, essentially divesting the circuit court of jurisdiction,” and that would be contrary to the court’s conclusion in Goode that a failure to meet the time is not jurisdictional. Id. at 508.

A dismissal of a petition for involuntary commitment without prejudice is not a decision on the merits of the case and does not therefore preclude the filing of a subsequent petition, but it does finally conclude the pending petition. The defendant is entitled to be released from custody at that point. The state can seek involuntary commitment again in the future, but only if the respondent is taken into custody on another offense. This reading of the Osborne decision is directly supported by the opinion of the Second District Court of Appeal in the case of In re Commitment of Goode, 22 So.3d 750 (Fla. 2d DCA 2009). There the court stated the principle as follows,

Where the State fails to bring a detainee to trial within the thirty-day period, the petition for civil commitment must be dismissed and the detainee must be released. However, unlike the running of a statute of limitations, the expiration of the thirty-day period does not forever foreclose the State from filing a new petition for civil commitment. Rather, it acts as a procedural bar to the continued detention of the detainee at that time. If the detainee is subsequently imprisoned for another offense, the State is free to file a new petition. See Ward v. State, 986 So.2d 479, 481 (Fla.2008).

In re Commitment of Goode, 22 So.3d at 752. We agree with this reasoning. A dismissal without prejudice in this context must mean without prejudice to bring the action again at some time in the future. It could not mean without prejudice to hold the respondent in custody until the petition can be filed again.

This analysis puts these kinds of dismissal orders in Jimmy Ryce Act cases in the class of dismissals without prejudice that are appealable as final orders. See Carlton v. Wal-Mart Stores Inc., 621 So.2d 451 (Fla. 1st DCA 1993) (holding that an order dismissing a civil case without prejudice on the ground that the plaintiff failed to make timely service of process is ap-pealable as a final order because it is a final disposition of the case pending before the court); Hunnewell v. Palm Beach County, 925 So.2d 468 (Fla. 4th DCA 2006) (holding that an order dismissing a civil case without prejudice for failure to prosecute is appealable as a final order because it finally concludes the case before the court). The phrase “without prejudice” in these cases means that the action can be initiated again at some point in the future, provided the statute of limitations has not expired. It does not mean that the pleading can be amended, as would be the case if the problem were merely that the original pleading failed to state a cause of action.

Because we conclude that the dismissal order in this case was a final order, the state had a right to appeal the order. The state also had a right to an automatic stay of the order under rule 9.310(b)(2) of the Florida Rules of Appellate Procedure and Mitchell v. State, 911 So.2d 1211 (Fla. 2005). However, we need not decide whether the stay should have been vacated, as defense counsel argued in the trial court. The state voluntarily dismissed the appeal when it filed the amended petition. Assuming the stay was valid, it had no effect once the state dismissed the appeal.

The state could have elected to pursue the appeal it had filed in this court. If the court were to reverse the order, the effect would be to reinstate the original petition, and the state could have proceeded to trial on the original petition for involuntary commitment. But the state did not pursue the appeal. Instead, the state filed the notice of appeal, obtained an automatic stay, thereby preventing Mr. Taylor’s release from custody, refiled the petition for involuntary commitment and then dismissed the appeal. This course of action suggests that the state has misconstrued the effect of the order dismissing the original petition without prejudice. The state was entitled to appeal that order and perhaps to have the respondent held in custody during the appeal, but the state was not entitled to cure the failure to meet the time limit simply by filing another version of the same petition.

Although our decision to grant the petition for writ of prohibition is based on the requirements of the statute, the outcome of the case is also consistent with the broader principles that apply in involuntary commitment proceedings. The United States Supreme Court upheld the validity of the Kansas involuntary commitment statute in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), in part because it contained strict procedural safeguards designed to ensure that the detainee is afforded due process of law. In Westerheide v. State, 831 So.2d 93 (Fla.2002), the Florida Supreme Court noted that the Jimmy Ryce Act shares many of the hallmarks of the Kansas statute, and the court upheld the act because it contains a “range of procedural safeguards” designed to protect the rights of those who are facing involuntary commitment. Id. at 105. In State v. Goode, supra at 826, and again in Mitchell v. State, 911 So.2d 1211, 1218 (Fla.2005), the supreme court stated that it would require “scrupulous compliance” with the thirty-day time limit for bringing the detainee to trial.

The prosecution of the petition in this case falls far short of the mark. After serving a fifteen-year sentence for his crime, Mr. Taylor remained in custody for nearly ten more years, based on nothing more than a finding of probable cause to believe that he should be committed as a sexual predator. The state’s failure to prosecute its petition for nearly five years after the court granted its motion for continuance could hardly be characterized as “scrupulous compliance” with the time limit for bringing the case to trial.

In summary, we conclude that Mr. Taylor was entitled to be released when the court dismissed the original petition. The state had a right to appeal the order and may have been entitled to an automatic stay pending the appeal. However, the state dismissed its appeal in this case when it submitted its amended petition, and the stay was no longer in effect at that point, in any event. The dismissal of the original petition without prejudice left open the possibility of a new commitment proceeding in the future but it did not give the state the right to refile the petition in the commitment proceeding in this case. For these reasons we hold that Mr. Taylor was not in lawful custody when the amended petition for involuntary commitment was filed and that the trial court is without jurisdiction to proceed on the amended petition.

Prohibition granted.

BENTON, C.J., concurs. WETHERELL, J., concurs with opinion.

WETHERELL, J.,

concurring.

I do not read the majority opinion to approve the trial court’s dismissal of the original petition based on Boatman. Indeed, the propriety of that decision is not squarely before the court because the state did not pursue its appeal of the dismissal order. Accordingly, even though I disagree with the trial court that Boatman compelled dismissal of the original petition, I fully concur in the majority opinion.

      . Our decision on this point is limited to a dismissal for failure to comply with the mandatory time limits in the statute in a case in which the respondent has completed his sentence. We do not rule out the possibility that it may be proper in some other context to dismiss a petition with leave to file an amended petition in the same case.

      . Boatman involved a respondent who objected to the state’s motion to continue the trial beyond the 30-day statutory period, whereas this case involves a respondent who, the record suggests, agreed to an indefinite waiver of the statutory trial period for strategic reasons and then did not object to his continued confinement for nearly five years before filing a motion to dismiss. There is persuasive authority suggesting that dismissal is not required under these circumstances. See Kolin v. State, 927 So.2d 198 (Fla. 5th DCA 2006); Curry v. State, 880 So.2d 751 (Fla. 2d DCA), rev. denied, 888 So.2d 17 (Fla.2004). But cf. § 394.916(2), Fla. Stat. (authorizing one continuance of not more than 120 days and stating that "[n]o additional continuances may be granted unless the court finds that a manifest injustice would otherwise occur").


author: MAY, J.

text:
    FOREST RIVER INC., Appellant, v. Joseph GELINAS, Appellee.
    No. 4D10-986.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    Rehearing Denied Aug. 9, 2011.

      John J. Glenn and Wilnar J. Paul of AndersonGlenn, LLC, Boca Raton, for appellant.
    Patrick St. George Cousins of Cousins Law Firm, P.A., West Palm Beach, for appellee.
   MAY, J.

On a return trip to this court, the manufacturer appeals a judgment consisting of attorney’s fees incurred during the arbitration of the refund option in a Lemon Law claim. It argues the trial court erred in its award of attorney’s fees for that arbitration proceeding. We agree and reverse.

This litigation began after the consumer successfully secured a refund of his 1999 vehicle from Florida’s New Motor Vehicle Arbitration Board. Nine months later, the consumer filed a complaint seeking an award of “pecuniary loss[es], litigation costs, reasonable attorney’s fees, and appropriate equitable relief,” pursuant to section 681.112, Florida Statutes (2000).

The manufacturer moved to dismiss the complaint, which the trial court denied. The manufacturer then served the consumer with a Proposal for Settlement in the amount of five thousand dollars. The manufacturer next moved for summary judgment, and argued that the “additional damages” sought by the consumer were not recoverable under the Lemon Law statute.

The trial court granted summary judgment for the manufacturer and awarded attorney’s fees and costs. The consumer appealed. In its first trip to this court, we reviewed the summary judgment entered for the manufacturer on all claims, which consisted of attorney’s fees, costs, and pecuniary losses. It was because the complaint alleged “pecuniary losses” other than attorney’s fees generated in the arbitration proceeding that we found the trial court had erred in entering summary judgment. Gelinas v. Forest River, Inc., 931 So.2d 970 (Fla. 4th DCA 2006). We held that the consumer “was permitted to bring claims for attorney’s fees and costs and pecuniary losses unrelated to refund or replacement of the vehicle in a lawsuit subsequent to Lemon Law arbitration via section 681.112.” Id. at 975. We did so based on the plain language of the statute. Id. We also had to reverse the fees and costs awarded to the manufacturer, pursuant to the Proposal for Settlement, until the underlying claim was finally resolved. We remanded the case back to the trial court for proceedings consistent with our opinion. Id. at 976.

Upon remand, the consumer pursued his action to recover attorney’s fees incurred in the arbitration action and engaged in discovery. The manufacturer again moved for summary judgment and argued the attorney’s fees that accrued exclusively during the arbitration of the refund option were not recoverable in a separate court action under section 681.112. The consumer filed a response along with a cross-motion for partial summary judgment on the issue of entitlement to attorney’s fees.

Based on our opinion in Gelinas, the trial court ruled that the consumer was entitled to “an adjudication of his damages consisting of attorney’s fees, costs and pecuniary losses.” The trial court found the consumer was entitled to a hearing on the amount of fees and costs “even if no evidence is presented regarding other pecuniary losses.”

After an evidentiary hearing, the trial court entered an “Order Determining Attorney’s Fees and Prevailing Party Issue” and awarded the consumer $4606.50 in attorney’s fees incurred in the underlying arbitration. The trial court found the award exceeded seventy-five percent of the Proposal for Settlement and the consumer was the prevailing party on the “significant issues.” The trial court denied the motion for rehearing and/or clarification.

Following a recent decision in General Motors Corp. v. Sanchez, 16 So.3d 883 (Fla. 3d DCA 2009), the manufacturer requested the trial court to revisit the issue. The trial court declined.

In a separate hearing, the trial court determined the amount of fees and costs incurred in litigating the attorney’s fees issue. The trial court entered an Amended Final Judgment, awarding a total of $221,700.37. Due to an error in the calculation, the trial court entered a Second Amended Final Judgment, and awarded a total of $187,475.84 for fees, costs, and prejudgment interest. The manufacturer now appeals.

Our court and the Third District Court of Appeal have had the occasion to address the underlying issue of whether “damages” as used in section 681.112, includes attorney’s fees incurred during the arbitration of the refund option. See Gen. Motors LLC v. Bowie, 58 So.3d 934 (Fla. 4th DCA 2011); Sanchez, 16 So.3d 883. Following the lead of the Third District in Sanchez, we held that “damages” do not include attorney’s fees incurred in arbitrating the refund option in a Lemon Law claim. Bowie, 58 So.3d 934 Significantly, the consumer did not claim any other “pecuniary loss.”

For the same reason, we reverse and remand this case to the trial court for entry of a judgment in favor of the manufacturer and for re-consideration of the Proposal for Settlement.

Reversed and Remanded.

DAMOORGIAN and LEVINE, JJ., concur.

      . The Florida Supreme Court denied review. Forest River, Inc., v. Gelinas, 954 So.2d 27 (FIa.2007).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Mohammed Sharique SHAIKH, Appellee.
    No. 5D10-2515.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.
    Rehearing Denied July 20, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State seeks reversal of an order granting the motion of the appellee, Mohammed Sharique Shaikh, for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Mr. Shaikh’s motion, his third, was based on the opinion of the United States Supreme Court in Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), concerning the consequences of inadequate legal advice in connection with the risk of deportation at the time of the entry of a plea. The trial court found that his nolo contendere plea to violation of a domestic violence injunction was involuntary because of the purportedly erroneous advice given to him by his attorney. We reverse.

Mr. Shaikh’s plea was entered on October 29, 2007, well before Padilla was handed down. We agree with that part of the decision of our sister court in the third district in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), holding that Padilla should not be applied retroactively. As Mr. Shaikh is not entitled to relief on his claim, we reverse the order granting post-conviction relief and remand to the trial court to reinstate the judgment and sentence in case number 48-2007-CF-5935.

REVERSED and REMANDED with instructions.

MONACO, C.J., and LAWSON and JACOBUS, JJ., concur.


text:
    Martin McCRAY, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-2025.
    District Court of Appeal of Florida, First District.
    June 8, 2011.
    Rehearing Denied July 21, 2011.
    Martin McCray, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed and the motion for relief from judgment is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. James SMOTHERS, Appellee.
    No. 4D09-4597.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Rehearing Denied Aug. 9, 2011.
    Philip E. Ward, Jeffrey T. Kuntz, Roland E. Schwartz and Evan D. Appell of GrayRobinson, P.A., Fort Lauderdale, for appellant.
    James C. Spitz of Law Offices of James C. Spitz, West Palm Beach, and Bard D. Rockenbach and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   MAY, J.

The Florida Insurance Guaranty Association (FIGA) appeals an award of attorney’s fees against it, pursuant to section 631.70, Florida Statutes (2008). It argues the trial court erred in finding that it denied coverage by affirmative action other than delay. We agree and reverse.

Atlantic Preferred issued an insurance policy to the insured, which was in effect when the insured’s property was damaged by Hurricane Wilma. The insured made a claim to Atlantic Preferred, which evaluated the damage and determined the amount of loss did not exceed the insured’s deductible. Atlantic Preferred did not pay the claim.

Subsequently, Atlantic Preferred was placed in receivership and, pursuant to section 631.57, FIGA stepped in to provide a mechanism for the payment of “covered claims.”

FIGA reviewed the claim and agreed to send an independent third party adjuster to inspect the property and prepare an estimate of the damage. The estimate sent to the insured showed that it dealt only with “Coverage A” and broke down damage valuations by category including: “roof,” “exterior,” “patio,” and “interior.” The estimate noted there was “NO VISIBLE STORM DAMAGE TO THE INTERIOR.”

FIGA wrote to the insured indicating that it was paying $3,841.35 minus the applicable deductible for a total payment of $981.35. The letter did not indicate that FIGA was denying coverage. The record does not indicate that the insured objected to the amount tendered.

The insured then filed suit to recover additional monies under the same insurance policy. FIGA moved to compel an appraisal and stay the action. The parties agreed to proceed with the appraisal process. An appraisal award was executed, determining the amount of loss to be $21,889.00 for Coverage A, $675.00 for Coverage B, and nothing for Coverage C and D. FIGA paid the appraisal award of $18,057.65 for Coverage A and $675.00 for Coverage B, including deductions for prior payments.

The insured claimed that FIGA denied his claim by refusing to pay the additional amount prior to the filing of the lawsuit. The insured argued that because the appraisal yielded an amount greater than FIGA’s initial payment, FIGA denied the claim, entitling him to attorney’s fees and costs pursuant to sections 631.70, 631.50 and 627.428. FIGA responded that attorney’s fees could not be awarded against FIGA because it did not deny the insured’s claim by affirmative action other than delay.

The trial court found that FIGA denied the claim by affirmative action when the independent adjuster found “NO VISIBLE STORM DAMAGE TO THE INTERIOR.” The trial court granted the insured’s motion to determine attorney’s fees and costs. FIGA filed a motion for reconsideration based upon the Third District’s decision in Sunshine State Insurance Co. v. Davide, 15 So.3d 749 (Fla. 3d DCA 2009). Without a hearing, the trial court denied the motion for reconsideration, and entered a final judgment, from which FIGA appeals.

We review the trial court’s interpretation of sections 631.70 and 627.428 de novo. Fla. Ins. Guar. Ass’n v. Soto, 979 So.2d 964, 966 (Fla. 3d DCA 2008).

FIGA is a statutory creature, “subject to special rules specifically formulated by the Florida legislature.” FIGA v. R.V.M.P. Corp., 874 F.2d 1528, 1532 (11th Cir.1989). While created to cover claims under policies issued by insolvent carriers, “the full gamut of a defunct insurance company’s liabilities was not intended to be shifted onto FIGA.” Williams v. Fla. Ins. Guar. Ass’n, 549 So.2d 253, 254 (Fla. 5th DCA 1989). Chapter 631 was designed to manage, but not bankrupt the statute’s funding and payment mechanism. Id.

The FIGA Act limits the liability of FIGA and bestows upon FIGA all policy defenses as well as any defenses available under common law. § 631.57(l)(b), Fla. Stat. (2008). In no event is FIGA obligated to a policyholder or claimant in an amount in excess of the statutory maximum or in excess of the obligation of the insolvent insurer under the policy from which the claim arises. Jones v. Fla. Ins. Guar. Ass’n, 908 So.2d 435, 453-54 (Fla. 2005) (citing § 631.57, Fla. Stat. (2008)). FIGA cannot be held liable for any penalties or interest. § 631.57(1)(b), Fla. Stat. (2008). And, FIGA is not responsible for the payment of an insured’s attorney’s fees and costs unless it denies the claim by affirmative action other than delay. Jones, 908 So.2d at 453 (citing § 631.70, Fla. Stat. (2008)).

Here, FIGA never denied coverage. The insured submitted a claim, and FIGA assumed limited responsibility, pursuant to chapter 631. FIGA hired an independent adjuster to inspect the claim and tendered payment. Nothing in FIGA’s payment transmittal letter indicated that it denied the claim, and the insured never claimed more than the amount tendered. Within twenty-three (23) days of the insured filing the complaint, FIGA requested an appraisal.

Section 631.70, Florida Statutes, states: The provisions of s. 627.428 providing for an attorney’s fee shall not be applicable to any claim presented to the association under the provisions of this part, except when the association denies by affirmative action, other than delay, a covered claim or a portion thereof.

Section 631.70 unambiguously creates the boundaries of FIGA’s liability for attorney’s fees. FIGA is responsible for attorney’s fees only when it “denie[s] coverage by affirmative action,” other than delay, and there is an “underlying entitlement to fees pursuant to Section 627.428, Florida Statutes.... ” Fla. Ins. Guar. Ass’n v. Jacques, 643 So.2d 101, 102 (Fla. 4th DCA 1994). Here, FIGA did not deny the insured’s claim; therefore, section 631.70 bars the application of section 627.428.

The Third District recently concluded that a dispute as to the amount to be paid is not a denial of coverage. Sunshine State, 15 So.3d at 750-51. We also recently held that FIGA’s filing of affirmative defenses at the direction of the court is not a denial of coverage. Fla. Ins. Guar. Ass’n v. Ehrlich, — So.3d -, 2011 WL 1661386 (Fla. 4th DCA 2011).

To sustain the award of attorney’s fees would render the Legislature’s creation of section 631.70 meaningless. Therefore, we hold that a dispute about the amount of damages does not constitute a denial of coverage by affirmative action, other than delay, exposing FIGA to attorney’s fees under section 631.70. As there was no denial of coverage by affirmative action, we therefore reverse the judgment for the insured and remand the case to the trial court for entry of judgment for FIGA.

Reversed and Remanded.

DAMOORGIAN and LEVINE, JJ., concur.