author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Wilson LAZIER, Jr., Appellee.
    No. 4D09-4695.
    District Court of Appeal of Florida, Fourth District.
    March 9, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

We sua sponte withdraw our previously issued opinion and substitute the following in its place.

The State of Florida appeals from a downward departure sentence imposed upon Wilson Lazier. We reverse and remand for resentencing.

Lazier was charged by information with the purchase of cocaine and resisting an officer without violence. Initially Lazier pled not guilty, but pursuant to a negotiated plea, he entered a guilty plea to the purchase of cocaine. The resisting charge was dismissed. Lazier was sentenced to eighteen months probation. The guidelines scoresheet for Lazier showed he scored 84.2 months as the lowest permissible sentence with a fifteen year maximum sentence.

An Affidavit of Violation of Probation was filed against Lazier charging him with failing to report; failing to remain at liberty without violating the law by operating a motor vehicle with an expired registration of more than six months; driving a vehicle with an unassigned tag; and failing to live and remain at liberty without violating the law by committing a simple battery.

A hearing on the violation of probation was held and the trial court found Lazier to have violated his probation by failing to report and downwardly departed from the guidelines in sentencing him to six months in the Palm Beach County Jail. The State objected and asked for a written order stating the reasons why the court downwardly departed. The trial court failed to enter an order with written reasons for the downward departure.

In determining to downwardly depart, the court orally stated:

Because of the nature of the violation I am going to downwardly depart from the Guidelines. I don’t think he’s a probation candidate. I don’t think that’s going to do him any good; but I am going to downwardly depart from the Guidelines and sentence him to six months in the Palm Beach County Jail.

The State argues that the trial court failed to submit a written basis for departure and that its oral basis for departure was not a valid reason for departure under section 921.0026(2), Florida Statutes (2009).

Lazier concedes that written reasons are required and that the decision should be reversed. However, Lazier argues that because his attorney indicated three possible bases for a downward departure sentence at sidebar and the trial court indicated an intention to depart downward, this court should remand for a re-sentencing hearing at which the trial court should be permitted to depart if it finds a legally sufficient reason to do so. We agree. See Jackson v. State, — So.3d —, 2011 WL 536429 (Fla.2011).

Reversed and Remanded With Directions.

DAMOORGIAN and GERBER, JJ., concur.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Eric L. EDENFIELD, Respondent.
    No. 1D10-4780.
    District Court of Appeal of Florida, First District.
    March 10, 2011.

      Michael J. Alderman, Acting General Counsel, and Sandra R. Coulter, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for Petitioner.
    Susan Z. Cohen and David M. Robbins of Epstein & Robbins, Jacksonville, for Respondent.
   VAN NORTWICK, J.

The Florida Department of Highway Safety and Motor Vehicles petitions for a writ of certiorari to review an order of the circuit court which, while sitting in its review capacity, overturned an administrative order suspending the driver’s license of Eric L. Edenfield, respondent. We have jurisdiction pursuant to rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure. While we agree that the circuit court’s order misapplies our case law, under the narrow standard of review applicable to second-tier certiorari review, we cannot conclude that the order violated a clearly established principle of law. Accordingly, we are constrained to deny the petition.

Edenfield was stopped by law enforcement after he was observed driving in excess of the posted speed limit. After an odor of alcohol was detected about Eden-field and he exhibited other signs of impairment, Edenfield was subjected to a breath test which produced a breath-alcohol ratio in excess of the legal limit. Following his arrest for driving while under the influence of alcohol, Edenfield’s license was suspended, and he sought an administrative review of that suspension. Among other witnesses, Edenfield requested of the hearing officer issuance of a subpoena duces tecum for Robert Thomason, the inspector of breath machines for the sheriffs department of Duval County. Thoma-son requested to appear by telephone, and the hearing officer granted the request over the objection of Edenfield. At the hearing, Edenfield refused to examine Thomason. The hearing officer sustained the suspension of Edenfield’s driver’s license.

Edenfield then sought review by a petition for writ of certiorari in the circuit court of the Fourth Judicial Circuit. The circuit court granted the petition and vacated the suspension on the ground that Edenfield was denied the requisite due process when Thomason was permitted to appear telephonically. The circuit court ordered a new administrative proceeding.

The Department now seeks to invoke what is commonly referred to as second-tier certiorari review. The Florida Supreme Court has set forth “certain fundamental principles for the use of certiora-ri to review decisions rendered by the circuit court acting in its appellate capacity from the time common-law certiorari was first recognized in 1855.” Custer Medical Center v. United Automobile Ins. Co., — So.3d —, —, 2010 WL 4340809 (Fla. 2010). District courts apply a two-prong test on second-tier certiorari review: whether the circuit court applied the correct law and whether the circuit court afforded procedural due process. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003). Pursuant to these principles, the district court should grant second-tier certiorari “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Custer, — So.3d at — (citing Combs v. State, 436 So.2d 93, 96 (Fla.1983)); see also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995). In determining whether the circuit court has applied the correct law in its first-tier review, the district court must consider whether the circuit court has failed to apply the correct law as clearly established. Clearly established law can be derived not only from case law dealing with the same issue of law, but also from “an interpretation or application of a statute, a procedural rule, or a constitution provision.... ” Kaklamanos, 843 So.2d at 890. When the established law provides no controlling precedent, however, certio-rari relief cannot be granted because “[without such controlling precedent, [a district court] cannot conclude that [a circuit court] violated a clearly establish principle of law.” Ivey, 774 So.2d at 682 (internal quotations omitted). Further, a misapplication or an erroneous interpretation of the correct law does not rise to the level of a violation of a clearly established principle of law. Id. Housing Auth. of City of Tampa v. Burton, 874 So.2d 6, 9 (Fla. 2d DCA 2004) (“Unlike application of incorrect law, misapplication of correct law by a circuit court sitting in its appellate capacity generally does not constitute a violation of clearly established law resulting in a miscarriage of justice.”); Manatee County v. City of Bradenton, 828 So.2d 1083,1084 (Fla. 2d DCA 2002).

The Supreme Court has explained the policy giving rise to the narrow standard of review applicable to second-tier review, as follows:

the district court’s exercise of its discretionary certiorari jurisdiction should
depend on the court’s assessment of the gravity of the error and the adequacy of other relief. A judicious assessment by the appellate court will not usurp the authority of the trial judge or the role of any other appellate remedy, but will preserve the function of this great writ of review as a “backstop” to correct grievous errors that, for a variety of reasons, are not otherwise effectively subject to review.
Heggs, 658 So.2d at 531 n. 14 (emphasis supplied) (quoting William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 228 (1977)). In other words, this Court has definitively expressed that certiorari cannot be used to grant a second appeal to correct the existence of mere legal error.

Custer, — So.3d at —.

In granting certiorari relief below, the circuit court relied primarily upon Lee v. DHSMV, 4 So.3d 754 (Fla. 1st DCA 2009). Lee holds that a driver in a license suspension proceeding must have a meaningful opportunity to cross-examine the creators of reports introduced by DHSMV in support of suspension. Id. at 757. But Lee does not expressly hold, as the circuit court here believed when granting certio-rari relief, that in-person testimony is required for a party to meaningfully cross-examine the individuals who prepared those reports. In holding that a party had the right to subpoena and then cross examine the author of inspection reports, this court in Lee cited section 322.2615, Florida Statutes, which gives a driver the right to present relevant evidence and to rebut evidence presented against him. Lee, 4 So.3d at 757. This court further cited rule 15A-6.013(5), Florida Administrative Code, which authorizes a hearing officer to receive the testimony of any witness under oath. Lee, 4 So.3d at 756-57. But neither the cited statute nor the cited rule preclude appearance of a relevant witness by telephone.

The parties have not cited any provision of law which allows a party to demand the live appearance of a witness in an administrative proceeding. It should be noted that, in the context of an unemployment compensation proceeding, this court held that telephonic appearance by witnesses is permissible. Greenberg v, Simms Merchant Police Service, 410 So.2d 566, 567-68 (Fla. 1st DCA 1982). Further, appearance by telephone is a common practice in worker’s compensation proceedings. See Rule 60Q-6.116(3), Florida Administrative Code (“Testimony may be taken by telephone with the written agreement of all parties or approval by the judge.”).

While the circuit court has misread our decision in Lee to require the live appearance of a witness in an administrative proceeding regarding a license suspension when a party requests the live appearance, this misreading does not constitute a violation of a clearly established principle of law. Indeed, there is no clear controlling precedent for the issue raised here. Because there is no basis for granting second-tier certiorari relief, the petition for a writ of certiorari is DENIED.

THOMAS, and MARSTILLER, JJ., concur.


author: ROWE, J.

text:
    RIVERWOOD NURSING CENTER, LLC d/b/a Glenwood Nursing Center, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D10-3723.
    District Court of Appeal of Florida, First District.
    March 10, 2011.
    Rehearing Denied April 14, 2011.

      John F. Gilroy, III of John F. Gilroy, III, P.A., Tallahassee, for Appellant.
    Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   ROWE, J.

The appellant, Riverwood Nursing Center, LLC, d/b/a Glenwood Nursing Center (Glenwood), appeals a final order from the Agency for Health Care Administration (AHCA), dismissing Glenwood’s request for an administrative hearing pursuant to sections 120.569 and 120.57, Florida Statutes (2010), as untimely. Glenwood asserts that AHCA erred by dismissing its request on two grounds: (1) Glenwood’s hearing request was not untimely because the filing deadline was equitably tolled; and (2) Glenwood’s hearing request merely amended, or related back to, an earlier request. For the reasons that follow, we affirm.

Facts and Procedural History

Glenwood is a nursing home that elected to participate in the Medicare and Medicaid programs subject to regulation by AHCA and the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS). AHCA is the state agency charged with administering the Florida Medicaid program and licensure and regulation of nursing homes in Florida. As part of AHCA’s regulatory function, it conducts on-site surveys and inspections, and it investigates complaints at nursing homes to determine compliance with Florida laws governing nursing home operation, maintenance, patient care, and state regulations. AHCA also conducts these surveys on behalf of CMS to report compliance with federal laws and regulations governing nursing homes. At the conclusion of the survey, AHCA prepares a report, called a “statement of deficiencies,” which identifies any violations of state law, and federal Medicare/Medicaid laws, observed by the AHCA surveyor. Every violation, or deficiency, is identified in a statement of deficiencies that references the statute or regulation violated, followed by AHCA’s factual findings supporting the reported deficiency. AHCA reports the results of the survey to both CMS and the subject nursing home and requests that the nursing home respond with a plan of correction to remedy the statements of deficiencies — whether based on state or federal law.

AHCA conducted a survey of Glenwood beginning February 5, 2010. On February 12, 2010, AHCA produced two statements of deficiencies concerning Glenwood: one for AHCA to declare deficiencies arising from state law violations and another for CMS to declare deficiencies arising from federal law violations. On February 16, 2010, CMS sent Glenwood an Imposition Notice of Immediate Jeopardy because Glenwood was not in substantial compliance with the federal Medicare/Medicaid participating requirements. The CMS notice listed the remedies sought and imposed fines, and provided that if Glenwood wished to appeal, it was required to file a written request for hearing within 60 days of receipt of the notice. A copy of the CMS notice was sent to the Florida “State Survey Agency,” which is AHCA.

On April 16, 2010, Glenwood sent CMS a letter requesting a hearing and disputing several federal deficiencies. The letter also stated that Glenwood was disputing the state law deficiencies. Glenwood copied an AHCA field office manager on its letter to CMS, but did not provide a copy to the AHCA agency clerk.

On May 21, 2010, AHCA filed an administrative complaint against Glenwood citing the nursing home with deficiencies relating to the February 5, 2010, survey, seeking the revocation of its nursing home license, and imposing conditions, fines, and fees. AHCA e-mailed a copy of the administrative complaint to the law firm of Glen-wood’s counsel. AHCA served the Glen-wood facility by certified mail on May 24, 2010. Attached to the complaint was an Election of Rights form expressly stating that Glenwood was required to file a written request for hearing within 21 days of receipt of the complaint, making the deadline June 14,2010.

However, Glenwood did not file the request for hearing before the June 14, 2010, deadline. Instead, on June 15, 2010, with knowledge that the deadline had expired, Glenwood’s counsel contacted AHCA’s counsel of record, who agreed to accept the belated request for hearing no later than June 18, 2010. Later that day, Glen-wood’s counsel contacted the AHCA agency clerk and asked the clerk to “hold up on any action on this case” since he had “spoken to [AHCA’s counsel] about an extension for the request for hearing.” Glen-wood’s counsel then filed the request for hearing on the afternoon of June 15, 2010.

On June 18, 2010, AHCA issued an order of dismissal without prejudice determining that Glenwood’s request for hearing was untimely, but permitting Glenwood to file an amended hearing request to explain why its untimely hearing request should be accepted as timely. On July 2, 2010, Glenwood filed a response to the order, requesting leave to amend and resubmit its hearing request. In the response, Glenwood asserted that (1) its June 15, 2010, request for hearing should be accepted as timely because the representation by AHCA’s general counsel that the request for hearing would be accepted through June 18, 2010, equitably tolled the filing deadline; and (2) because Glen-wood’s April 16, 2010, letter addressed to CMS requesting a hearing with CMS noted that Glenwood was challenging the state law statement of deficiencies, and therefore, AHCA was on notice of Glen-wood’s challenge to the agency’s action. On July 12, 2010, AHCA issued a Final Order of Dismissal with Prejudice which (1) denied Glenwood’s request for hearing because it was untimely and because Glen-wood’s failure to submit a timely request was not subject to equitable tolling; and (2) revoked Glenwood’s license to operate a nursing home and imposed an administrative fine of $25,000. This appeal follows.

Analysis

Glenwood urges this court to reverse AHCA’s Final Order of Dismissal with Prejudice, raising two issues on appeal. First, Glenwood argues that its untimely request for hearing filed on June 15, 2010, should have been accepted by AHCA because the deadline was equitably tolled by the representation made by AHCA’s office of general counsel that AHCA would accept Glenwood’s filing after the deadline had expired. Second, Glenwood asserts that its April 16, 2010, request for hearing addressed to CMS in which it referenced it was challenging the state law statements of deficiencies should be recognized as its initial request for an administrative hearing with AHCA, and therefore, Glenwood’s June 15, 2010, request for hearing was not untimely because it was merely an amendment to, or related back to, its earlier request. For the reasons that follow, we conclude that Glenwood failed to timely and properly request a hearing under Chapter 120.

We address Glenwood’s equitable tolling argument first. The doctrine of equitable tolling has generally been applied in three circumstances: (1) when a party “has been misled or lulled into inaction,” (2) when a party “has in some extraordinary way been prevented from asserting his rights,” or (3) when a party “has timely asserted his rights mistakenly in the wrong forum.” Machules v. Dep’t of Admin., 523 So.2d 1132, 1134 (Fla.1988). None of these circumstances are present here. Glenwood has not argued that it was misled or lulled into inaction, nor has it argued that it was in some extraordinary way prevented from asserting its rights, or that it timely asserted its rights mistakenly in the wrong forum. Rather, Glenwood claims the deadline for filing its request for hearing should have been equitably tolled because of the representations by AHCA’s counsel that Glenwood’s late filing would be accepted by the agency after the filing deadline had already expired. However, Glenwood admits that it was aware of the June 14, 2010, filing deadline and does not allege that any representative of AHCA extended the deadline by agreement before the deadline expired.

Citing Foley v. Dep’t of Health, 839 So.2d 828 (Fla. 4th DCA 2003), in support of its equitable tolling argument, Glenwood asserts that it detrimentally relied on the representations made by AHCA’s counsel that the agency would agree to accept Glenwood’s request after the filing deadline and argues that AHCA should not be allowed to disavow its agreement. In Foley, the appellant’s Election of Rights form was received after the filing deadline and the department filed a motion for default in the case. Id. at 828. An attorney for the department then agreed to withdraw the motion, but afterwards, the department entered a final order without providing Foley a hearing or notice because of Foley’s untimely filing of his Elections of Rights form. Id. In Foley, the department “confesse[d] error” and acknowledged that it was equitably estopped from entering the order because, based on the attorney’s representations, the appellant detrimentally relied and took no action after filing the Election of Rights form. Id. at 828-29. The Fourth District reversed and remanded the matter "with instruction to the department to conduct a formal administrative hearing. Id. at 829.

AHCA argues that the facts in this case are more analogous to the circumstances in Watson v. Brevard County Clerk of the Circuit Court, 937 So.2d 1264 (Fla. 5th DCA 2006). There, the Fifth District held that the doctrine of equitable tolling did not apply where Watson filed a petition one day after the filing deadline, even though a commission staff member told Watson, after the filing deadline had expired, that she could fax her late petition to the court. Id. at 1265.

While Foley and Watson involve the same issue presented in this case — whether the doctrine of equitable tolling should be applied to late-filed petitions for an administrative hearing — we find the reasoning applied by the Fifth District in Watson more persuasive and a better-reasoned approach to resolving the equitable tolling issue under the facts in this case. Here, the Election of Rights form which AHCA provided to Glenwood states that the form must be returned within 21 days of receipt, and failure to do so would result in the issuance of a final order; and to obtain a formal hearing, a written petition for a request for hearing must be received by the agency clerk within 21 days, in compliance with Rule 28-106.2015, Florida Administrative Code. As in Watson, Glen-wood has alleged nothing to excuse it from following the clear, written directive contained in the Election of Rights form. We find that the doctrine of equitable tolling simply does not apply in this case.

As its second basis for seeking reversal of AHCA’s Final Order, Glenwood argues that its June 15, 2010, request for hearing was not untimely because it merely amended or related back to its earlier request for hearing. This earlier request was purportedly made in the April 16, 2010, letter addressed to CMS requesting a hearing with CMS, in which Glenwood claims that it challenged the statements of deficiencies based on violations of state law through a single sentence included in the letter which reads, “We are also disputing the state tags.” Glenwood argues that because its substantial interests were affected by AHCA’s issuance of the statements of deficiencies, and the April 16, 2010, request for hearing puts its substantial injuries at issue, it was entitled, pursuant to sections 120.560 and 120.57, Florida Statutes (2010), to an administrative hearing to resolve disputed issues of fact.

We take no position as to whether Glen-wood’s substantial interests were affected by the statement of deficiencies issued by AHCA or whether Glenwood was entitled to request an administrative hearing challenging the statement of deficiencies before AHCA filed a formal administrative complaint. See § 120.569(1), (2)(a), Fla. Stat. (2010); W. Frank Wells Nursing Home v. Agency for Health Care Admin., 979 So.2d 339, 341 (Fla. 1st DCA 2008). We need not reach that issue because we find that Glenwood’s April 16, 2010, filing with CMS was insufficient as a matter of law to invoke a right to an administrative hearing under Chapter 120. We observe that the June 15, 2010, request for hearing neither refers to the document as an amendment to an earlier request for hearing, nor makes any reference whatsoever to the April 16, 2010, request for hearing addressed to CMS. Further, although the agency is required to grant or deny a request for hearing within fifteen days of the filing of such request, see section 120.569(2)(a), Florida Statutes, the record does not reflect any effort by Glenwood to inquire with AHCA after fifteen days had passed, with no action by AHCA on the purported request. More significantly, Glenwood fails to cite any authority for its argument that its letter requesting a hearing with CMS could simultaneously serve as request for administrative hearing with AHCA. Nor does Glenwood make any argument that Florida law authorizes a party to request a Chapter 120 hearing before a state agency by filing a request with a federal agency. To the contrary, Florida law unambiguously requires a party seeking an administrative hearing before a state agency to file the request with the state agency itself. § 120.569(2)(a), Fla. Stat. (2010).

Second, assuming arguendo, that a request for hearing addressed to a federal agency, absent clear statutory authorization, could operate as a request for hearing under Chapter 120, Glenwood has failed to demonstrate that it properly filed the hearing request with the agency clerk as required by law. See Fla. Admin. Code R. 28-106.104(1). Glenwood argues that by providing an AHCA field office manager with a copy of the April 16, 2010, hearing request addressed to CMS, Glenwood complied with the filing requirements necessary to entitle it to an administrative hearing before AHCA. But, again, Glenwood fails to provide authority for its argument that by sending a copy of the CMS letter to AHCA’s field office manager, it satisfied the filing requirements under Florida law to request an administrative hearing. Indeed, Glenwood’s argument is contrary to the clear language of Rule 28-106.104(1), Florida Administrative Code, which provides, “filing shall mean received by the office of the agency clerk during normal business hours or by the presiding officer during the course of a hearing.” (Emphasis added.) Thus, in order to properly request an administrative hearing with AHCA, Glenwood was required to file the request with the AHCA agency clerk. Because Glenwood never provided a copy of the April 16, 2010, letter to CMS to the AHCA agency clerk, it was not properly filed.

Finding no merit to Glenwood’s arguments, we affirm AHCA’s Final Order of Dismissal with Prejudice.

AFFIRMED.

WEBSTER and WETHERELL, JJ., concur.


author: LAGOA, J.

text:
    Ramon PUENTES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-1822, 3D09-1832, 3D09-1833.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.

      Gennaro Cariglio Jr., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   LAGOA, J.

The defendant, Ramon Puentes (“Puentes”), appeals from his sentence and the denial of his post-sentencing motion to withdraw his plea. Because we find no merit to any of the issues raised on appeal, we affirm.

I. FACTUAL HISTORY

Puentes was charged in case number F04-22159E by amended information filed on March 1, 2006, with racketeering (count 1), conspiracy to commit l'acketeering (count 2), organized scheme to defraud (count 11), third degree grand theft (count 12), and money laundering (count 13). He was charged in case number F04-22169G by amended information filed on August 5, 2005, with racketeering (count 1), conspiracy to commit racketeering (count 2), organized scheme to defraud (count 12), and three counts of third degree grand theft (counts 13, 14 and 15). Puentes was also charged in case number F05-11782 by information filed on May 3, 2005, with burglary of an unoccupied structure (count 1) and first degree grand theft (count 2).

On January 4, 2008, Puentes and the State entered into separate plea agreements in which Puentes entered irrevocable guilty pleas to one count of organized scheme to defraud (count 11 in case number F04-22159E), one count of organized scheme to defraud (count 12 in case number F04-22169G), and one count of burglary of an unoccupied structure (count 1 in case number F05-11782).

All three plea agreements provided in pertinent part, as follows:

2. The Court shall accept Defendant’s guilty plea, shall enter a finding and adjudication of guilt, but shall defer sentence until the Defendant has completed all conditions as set forth below. The Defendant’s guilty plea is irrevocable.
6. If the State determines that the Defendant has satisfied all of the special conditions contained in this Agreement then the parties agree that the Defendant shall be sentenced to a term of imprisonment of eighteen (18) months followed by a term of probation of three (3) years. This sentence shall run concurrent with the sentences imposed [in all three cases]....
7. Additionally, the State agrees that, based upon the extent and value of the Defendant’s cooperation, the Office of the State Attorney in its sole discretion, may provide the Defendant with additional relief at the time of sentencing which could act as mitigation towards his ultimate sentence.
8. If the Defendant violates any of the terms of this Agreement ... the parties agree that the Defendant may be sentenced to the statutory maximum of the offense charged which is stipulated by the parties to be [terms of incarceration of: 5 years in case.F04-22159E 30 years in case F04-22169G and 5 years in case F05-11782],
10. The Defendant shall refrain from the commission of any crime during the pendency of this case and the Defendant’s cooperation. Any violation of this paragraph on the part of the Defendant shall constitute a breach of this plea agreement, and shall render this agreement voidable at the discretion of the State. In the event that the State elects to void this agreement as a result of the Defendant committing a crime, the parties agree that the sanctions as set out in paragraph eight (8) above shall be imposed.

(Emphasis added).

Therefore, under the express terms of the plea agreements, Puentes’s full compliance with all conditions would result in Puentes being sentenced to concurrent terms of eighteen months in prison followed by three years of probation, and payment of restitution. However, if Puentes violated any of the terms of the agreements, he would be sentenced to the statutory maximum sentences of the three offenses to which he plead guilty. Indeed, during his plea colloquy, both Puentes and his counsel specifically acknowledged that the parties had agreed that if Puentes violated the agreements, the statutory maximum sentences would be imposed consecutively for a total term of forty years in prison. On that same day, the trial court ratified the terms of the plea agreements, Puentes entered his irrevocable guilty pleas, and the trial court entered judgments accordingly. The state nolle prossed the remaining counts. Pursuant to the plea agreements, the trial court deferred sentencing until Puentes completed all the conditions of his plea agreements.

It is undisputed that after entering into his plea agreements and entering his guilty pleas, and before he was sentenced, Puentes committed federal criminal offenses, and pleaded guilty to federal criminal charges in January 2009.

After his admitted noncompliance with the term of the plea agreements which provided that he “refrain from the commission of any crime during the pendency of this case,” Puentes gave a sworn statement and appeared for two depositions, but the State did not call him to testify at the trial of his co-defendant, Bert Velunza. Although the plea agreements provided that Puentes would be sentenced to the statutory maximum if he violated the terms of his plea agreements, the State ultimately recommended a sentence of fifteen years in prison, despite Puentes’s noncompliance with the agreements.

Prior to sentencing, Puentes filed an amended memorandum of law asserting that his sentence could not be increased above the agreed upon eighteen months because: (a) the State had not filed a timely motion to vacate the plea agreements pursuant to Florida Rule of Criminal Procedure 3.170(g)(2)(A); (b) the State’s actions constituted an implied waiver of his breach of the plea agreements as the State elected to allow him to continue performing under the terms of the plea agreement; (c) the State’s actions violated the agreements’ implied covenant of good faith and fair dealing; and (d) the State’s conduct violated his right to substantive and procedural due process.

The trial court subsequently conducted sentencing hearings on March 26, 2009, April 30, 2009, and May 12, 2009. Among those who testified at the hearings were Assistant State Attorney Richard Scruggs and Puentes’s attorney, Oscar Rodriguez, Sr.

At a hearing on May 26, 2009, the trial judge announced its findings and sentence. In its subsequent written order, the trial court found that Puentes had breached his plea agreements by committing the acts set out in the federal indictment, and that the sixty day time frame in Rule 3.170(g)(2)(A) did not apply because Puentes had not yet been sentenced at the time of his breach. Moreover, even if Rule 3.170(g)(2)(A) were to apply, the trial court found “by clear and convincing evidence which is both substantial and competent, that the parties agreed to waive any time period. And that was done at the request of the defendant’s counsel.” The trial court also found that “not only is the State acting in good faith, but they are giving the defendant exceptionally reasonable treatment for his small contribution of having pled guilty.” The trial court accepted the State’s recommendation of a sentence to fifteen years in prison, and sentenced Puentes to a term of five years in prison in case number F04-22159E, a term of fifteen years in prison in case number F04-22169G to run concurrently with the sentence in case number F04-22159E, and a term of five years in prison in case number F05-11782 to run consecutive to F04-22159E but concurrent with F04-22169G.

On June 24, 2009, Puentes filed a motion to withdraw his plea arguing that he was never told that the State was seeking to increase his sentence above the eighteen months and that at no point did the State file a motion to void the agreements. The trial court denied the motion on that same day without an evidentiary hearing. The trial court found that Puentes’s argument was duplicative of the issues addressed at the prior hearings and that Puentes had failed to establish the manifest injustice necessary to vacate a plea agreements after sentencing. The trial court also noted that Puentes had been given the opportunity to testify regarding these issues at a previous hearing. This appeal ensued.

II. ANALYSIS

Below we address each of the five issues raised by Puentes on appeal.

A. Rule 3.170(g)

First, Puentes argues that the State could only increase his sentence from the eighteen month agreement by way of a motion, pursuant to Florida Rule of Criminal Procedure 3.170(g)(2)(A), to vacate the plea agreements within sixty days of Puentes’s noncompliance. Because the State did not file such a motion, Puentes argues that the “State is prohibited to void the plea agreement.” The trial court ruled that Rule 3.170(g) did not apply to the instant case because Puentes had not yet been sentenced. We agree and find that the trial court did not err in reaching that conclusion.

Rule 3.170(g) provides:

(g) Vacation of Plea and Sentence Due to Defendant’s Noncompliance.
(1) Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.
(2) Unless otherwise stated at the time the plea is entered:
(A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.
(B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.
(C) No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.
(D) When a plea and sentence is vacated pursuant to this rule, the cause shall be set for trial within 90 days of the order vacating the plea and sentence.

A reading of the rule makes clear that it applies to a factual circumstance where the defendant has entered a plea and also been sentenced. This section of the rule is entitled “Vacation of Plea and Sentence” and subsection (2)(A) further provides that the State may move to vacate a “plea and sentence.” Indeed, section (g) was added to Rule 3.170 in response to McCoy v. State, 599 So.2d 645 (Fla.1992), a case in which the defendant already had accepted a plea and been sentenced when the State filed a motion to resentence the defendant or allow her to withdraw her plea because of her failure to comply with an agreement to testify truthfully against her “supplier.” Id. at 648. Pending adoption of a permanent rule, the Supreme Court set forth the procedure for the State to file a motion to vacate a plea and sentence. Id. at 649.

Additionally, Rule 3.170 does not apply because the State was seeking to enforce the terms of the plea agreements, not vacate them. Specifically, and contrary to Puentes’s assertion that the State was seeking to vacate or void the plea agreements by recommending a sentence above eighteen months, the State’s position below was enforcement of the express provision of the plea agreements that provided that Puentes may be sentenced to the statutory maximum if he violated any term of the agreements. Additionally, we note that Puentes did not seek to vacate the plea agreements. Indeed, as Puentes’s counsel admitted at oral argument, Puentes did not want the plea agreements vacated, but instead wanted to have the benefit of the bargain, i.e., an eighteen-month sentence, despite his admitted violation of the terms of the plea agreements.

Moreover, in Metellus v. State, 900 So.2d 491 (Fla.2005), the Supreme Court ruled that Rule 3.170(g)(2)(A)’s sixty-day time frame is not jurisdictional. Id. at 495. If the sixty days is not jurisdictional, then waiver applies. At the May 12, hearing, Puentes’s attorney, Rodriguez, testified that he requested that the State “keep an open mind” about Puentes’s sentence after the admitted noncompliance with the plea agreements. Indeed, Rodriguez specifically testified that his goal was to persuade Assistant State Attorney Scruggs to allow Puentes to “go through” with the agreement and to convince the State to continue to use Puentes in the hopes of avoiding a sentence above the eighteen months. Moreover, Rodriguez testified that Scruggs advised him that it was “highly unlikely” that the sentence would be eighteen months. Given this testimony, it is clear that the State did not lull Puentes into believing the agreement for an eighteen-month sentence was still in place, and that the State’s failure to file any motion, even if one were required, was at Puentes’s request.

B. Waiver

Puentes’s second argument is that the State’s actions of allowing Puentes to give a sworn statement and to appear for two depositions after the admitted noncompliance constituted a waiver by the State of its election to void the plea agreements and seek an enhanced sentence. However, the record is clear that, after Puentes’s noncompliance, the State communicated to Rodriguez that it could no longer recommend the eighteen-month sentence, and that it was at Rodriguez’s insistence that the State continued to allow Puentes to cooperate. Rodriguez testified that he wanted Puentes to continue to cooperate in order to hopefully reduce what was now an increased sentence back down to the eighteen months. Accordingly, the record clearly establishes that the State did not waive its right under the plea agreements to recommend a sentence greater than eighteen months, nor did Puentes ever believe that the State had relinquished that right, as that was the impetus for him to continue cooperating.

Finally, the State correctly argues that Puentes still had to perform under the plea agreements because pursuant to the plea agreements, other charges against Puentes were dismissed, and he originally faced over 200 years in prison. The trial court also found in the sentencing order that because Puentes’s plea of guilty was irrevocable, Puentes no longer had a Fifth Amendment privilege not to testify.

C. Implied Covenant of Good Faith and Fair Dealing

Thirdly, Puentes argues that the State violated the agreements’ implied covenant of good faith and fair dealing based on its failure to tell him that the State intended to void the agreements and seek an increased sentence when it learned of his violation, while continuing to use his cooperation. Puentes contends that he was thereby reasonably led to believe that the State would fulfill its promise to recommend a sentence of eighteen months or less. As we already have discussed, Rodriguez’s and Scruggs’s testimony at the hearing establishes that it is clear that the State did not lull Puentes into believing the plea agreement for an eighteen-month sentence was still in place. Therefore, the trial court did not err in finding that the State acted in good faith and did not mislead Puentes.

Puentes also argues that the record does not support the findings in paragraphs 14 and 15 of the sentencing order and that the findings conflict with Scruggs’s testimony. This argument is without merit.

The record does not indicate that Scruggs testified that he definitely would seek a significant sentence or that the only option was a significant or maximum sentence. However, a review of Scruggs’s testimony as well as Rodriguez’s testimony shows that Rodriguez knew, and discussed with Puentes, that Puentes was facing the possibility of a higher sentence based on his violation, but, as requested by Rodriguez, that Scruggs would keep an open mind if Puentes continued to cooperate. Scruggs testified that he told Rodriguez that Puentes violated the plea agreements, that he would be seeking to violate the plea agreements and bring it to the attention of the court, that the violation took away the eighteen-month recommendation, that Rodriguez asked him to keep an open mind about the eighteen months, and that he told Rodriguez that it would be very difficult, but he would try to keep an open mind. As to his discussions with Puentes, Rodriguez testified that he spoke with Puentes concerning the maximum penalty he was facing under the plea agreements, that Puentes knew the agreement was in jeopardy, and that he talked with Puentes about “enough time” (but not forty years). He also testified that he convinced Scruggs to continue to use Puentes so that he could get back to the eighteen months, that Scruggs told him that the eighteen-month sentence was highly unlikely, and that Puentes knew that the possibility of an increased sentence existed. The impetus for Rodriguez to tell Scruggs to keep an open mind was to try and keep the increased sentence for the violation as close as possible to the eighteen months. As stated in his deposition, Puentes knew that he was facing thirty years if he violated the plea agreement and that the agreement provided for such sentence. He merely did not think it was a significant case. Therefore, the record supports the trial court’s findings and it is clear that Puentes knew that he was facing a higher sentence for violating the plea agreements.

D. Violation of Procedural and Substantive Due Process Rights

Fourth, Puentes argues that the State’s conduct violated his rights to procedural and substantive due process. These arguments are also without merit.

As to the alleged procedural due process violation, Puentes contends that the trial court violated its May 4 ruling on the statement of particulars that limited the plea violation to the federal offense. In support of this argument Puentes relies on a portion of the sentencing order, which states that the State could not have used Puentes’s testimony in good faith after it debriefed Velunza. Puentes argues that if he had known that the trial court intended to rely on this testimony, he could have filed a new motion for statement of particulars and called rebuttal witnesses to contest the assertion that Puentes’s statements were not credible.

Puentes correctly contends that the State limited its basis for the plea violation to the federal offense. However, in his amended memorandum of law, filed in anticipation of matters that may be raised at sentencing, Puentes argued that the State did not act in good faith when it continued to use Puentes’s cooperation for its benefit after the commission of the federal offense which led him to reasonably expect that the State would recommend a sentence of eighteen months or less. At the April 30 hearing, Scruggs testified as to his reasons for not using Puentes as a witness at the Velunza trial. Puentes raised a relevancy objection to this testimony. The trial court overruled the objection, stating that this evidence “goes to the sequence of events, which is relevant to Mr. Scruggs’s action and the likelihood or not of what you’re saying, whether or not [Scruggs] led your client down the primrose path and why I should believe that or not....” As stated in the ordei', the trial court merely mentioned this evidence in concluding that the State acted in good faith and in considering the extent of Puentes’s cooperation. Therefore, the trial court did not violate its ruling on the statement of particulars because this evidence did not go to the State’s argument that Puentes violated the plea agreement.

In addition, in his amended memorandum of law, Puentes raised the good faith violation/cooperation issue concerning his testimony in the Velunza case. Therefore, he should have been prepared to present evidence as to his failure to testify in the Velunza case in response to the State’s assessment of his cooperation. Furthermore, the objected-to testimony concerning Puentes’s participation in the Velunza case occurred at the April 30 hearing. That hearing was continued until May 12. At the end of April 30 hearing, Puentes’s defense counsel asked the trial court about Scruggs’s statement that he could not vouch for Puentes’s credibility, precluding him from presenting Puentes as a witness at Velunza’s trial. At the May 4 hearing on the statement of particulars, defense counsel did not further pursue that inquiry or request an opportunity to present any additional witnesses. At the sentencing hearing, which continued on May 12, defense counsel questioned Scruggs concerning the Velunza case. At that time, he had the opportunity to address this issue. Therefore, Puentes was not precluded from contesting Scruggs’s testimony concerning Puentes’s failure to testify in the Velunza case.

As to the alleged substantive due process violation, Puentes argues that the State acted in bad faith by waiting until he cooperated before noticing counsel of the State’s intentions to seek an increased sentence. We reject this argument based on our previous conclusion that “that the record is clear that, after Puentes’s noncompliance, the State communicated to Rodriguez that it could no longer recommend the eighteen month-sentence, and that it was at Rodriguez’s insistence that the State continued to allow Puentes to cooperate. Rodriguez testified that he wanted Puentes to continue to cooperate in order to hopefully reduce what was now an increased sentence back down to the eighteen months ... [and] Puentes [did not] ever believe that the State had relinquished that right, as that was the impetus for him to continue cooperating.” See supra p. 918. (footnote omitted).

E. Motion to Withdraw Plea

Puentes’s final argument is that the trial court erred in denying his motion to withdraw his plea without holding an evidentiary hearing. When a motion to withdraw a plea is filed after sentencing, the defendant has the burden of demonstrating “a manifest injustice requiring correction.” State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003). Additionally, a defendant is entitled to an evidentiary hearing on the motion to withdraw the plea “unless the record conclusively refutes his allegations.” Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006). The standard of review of a trial court’s denial of motion to withdraw plea is abuse of discretion. Id.

In his motion to withdraw plea, Puentes argued that the State violated the plea agreements by failing to recommend a sentence of eighteen months and that at no point did the State tell him that it was “seeking the void his plea agreement and seek an increased sentence until after his cooperation was complete.” The trial court denied the motion and the request for an evidentiary hearing, finding that the grounds raised by Puentes were duplica-tive to those raised at the numerous sentencing hearings and that “I don’t find, that on the face of the pleadings, the manifest injustice necessary has been met.” In reaching her conclusion, the trial judge also stated that she recalled “very specifically and very clearly giving Mr. Puentes the opportunity to testify at that time.”

The trial court did not abuse its discretion in denying the motion to withdraw plea without conducting an evidentia-ry hearing. The record conclusively refuted Puentes’s allegation that the State did not tell him that it was seeking an increased sentence. As explained above, there was testimony, previously given before the trial court, that Puentes had been told by Rodriguez that the State would no longer recommend the eighteen-month sentence. Moreover, the trial court specifically found that the State had acted in good faith, and “at all times indicated that 18 months was not going to apply.” Indeed, at the hearing on May 26, 2009, at which the trial judge stated her findings and sentence, the trial judge specifically asked Puentes whether he wished “to allo-cute ... or put on any further evidence.” Puentes’s counsel responded that he did not.

The very issue Puentes asserted in his motion to withdraw the plea was addressed at hearings held on March 26, 2009, April 30, 2009, and May 12, 2009, and was determined at the sentencing hearing of May 26, at which Puentes was given another opportunity testify, but refused. Given this, it cannot be said that the trial court abused its discretion in determining that Puentes was not entitled to another evidentiary hearing on the issue of whether the state breached the plea agreements.

For the above reasons, we affirm Puentes’s sentence and the denial of his motion to withdraw his plea.

Affirmed.

      . After the April 30 hearing, Puentes filed a Motion for Statement of Particulars, seeking, inter alia, to know the specific alleged violation of the plea agreements upon which the State relied. At the May 4 hearing on this motion, the prosecutor stated that Puentes did not comply with the plea agreements based on the federal indictment.

      . Rodriguez testified at the hearing held on March 26 that he told Puentes that because of his violations and breach of the agreements he was facing a higher sentence. Indeed, Puentes testified at his deposition that he knew a violation would expose him to a higher sentence, he just did not believe that his crimes warranted a thirty-year sentence:
      Q. Without going over the same ground again, just to summarize, I had asked you whether or not you had a substantial or significant criminal history, and you had difficulty saying yes to that, so we went through your criminal history, spent a lot of time doing that.
      A. That is correct.
      Q. We found out there are at least five or six arrests and cases that you've had?
      A. Yes.
      Q. You still maintain that you don't have a significant or substantial criminal history?
      A. Yes, I do not.
      Q. You don’t consider it—
      A. I don’t consider it.
      Q. You don't consider any of those cases to be significant, substantial?
      A. No.
      Q. Do you consider this case in which you are testifying to be significant or substantial?
      A. No.
      Q. You heard Mr. Scruggs say that you’ve breached, in his view, your plea agreement?
      A. Yes.
      Q. And we marked it and you identified the three plea agreements as Defendants’ Velunza 1, 2 and 3 for these depositions. Do you remember that?
      A. Yes.
      Q. And in the plea agreements, if you breach the agreement, you're facing thirty years in State prison?

        A. Yes.
      Q. You remember that?
      A. Yes.
      Q. You saw that in the agreement?
      A. Yes.
      Q. You were aware of that at the time that you signed it?
      A. Yes.
      Q. And you still feel that this is not a significant case, a case in which you can get up to thirty years in prison?
      A. No.

      . Scruggs testified that whether or not Puentes faced an enhanced sentence was at the exercise of his discretion at some later date because he was keeping an open mind.

      . The order, in pertinent part, states: "This Court finds not only is the State acting in good faith, but they are giving the defendant exceptionally reasonable treatment for his small contribution of having pled guilty. The fact that the defendant "stood ready” after his violation, to be deposed and testify, is of little moment since his irrevocable plea vitiated any claim he might have had to invoke his 5th Amendment privilege; he had no 5th Amendment privilege remaining in this matter. Further, the State could not in good faith have used his testimony after having debriefed co-defendant Velunza."

      . In the amended memorandum, Puentes asserted that the “State allowed Mr. Puentes to remain on their witness list and arranged for him to appear for a defense deposition. Subsequent to the deposition, the State then intended to use him as a witness at trial until they resolved the case against Bert Velunza. These acts by the State operate as a conclusive election to continue performing under the contract.”


author: JACOBUS, J. TORPY, J.,

text:
    Dwayne Cornelius JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3296.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Existen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Dwayne Jones timely appeals his conviction for burglary of a dwelling with a battery and attempted false imprisonment. Jones raises three issues on appeal, only one of which merits discussion. He contends the lower court erred when it denied his motion to continue the trial. We agree, and reverse and remand for a new trial.

Jones was arrested on March 25, 2009. The public defender was appointed to represent him on April 27, 2009, and trial was set for July 13, 2009. On July 9th, Jones’s attorney filed a motion to withdraw, and conflict counsel was appointed the same day. On July 13th, the matter came before the court for trial. Conflict counsel was present, but he had never received the order appointing him. Jones’s new attorney requested the court to continue the trial to give him time to prepare. The court initially agreed. However, the State objected, arguing that the victim, who was Jones’s girlfriend, was a difficult witness, and it was unsure whether she would appear to testify on a later date. The court then asked Jones whether he would waive his right to a speedy trial, and Jones refused. In light of this refusal, the court denied the continuance. The trial was nevertheless postponed for a few days due to a clerk’s error.

On July 24, 2009, the day of trial, Jones’s attorney again moved for a continuance. He explained that he still had not received full discovery, nor had he been able to speak with the victim. The court inquired whether Jones would waive speedy trial, and again Jones refused. The court therefore denied the continuance. The court took a one-hour recess to allow Jones’s attorney to speak with the victim and then proceeded with the trial. The jury ultimately found Jones guilty of burglary of a dwelling with a battery and attempted false imprisonment. He was sentenced to life in prison.

“As a general rule, the denial of a motion for continuance is within the sound discretion of the trial court, and the action of the court will not be disturbed on appeal unless there is a clear showing that there has been a ‘palpable’ abuse of discretion to the disadvantage of the accused, or, unless the rights of the accused might have been jeopardized by the continuance determination.” Trocola v. State, 867 So.2d 1229, 1230-31 (Fla. 5th DCA 2004). In McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986), the First District Court of Appeal identified seven criteria that should be considered in determining whether the denial of a motion for a continuance amounts to a palpable abuse of discretion. These criteria include: (1) the time actually available to counsel for trial preparation; (2) the likelihood of prejudice from the denial; (3) the defendant’s role in shortening preparation time; (4) the complexity of the case; (5) the availability of discovery; (6) the adequacy of counsel actually provided; and (7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime. Id. at 1282; see also Trocola, 867 So.2d at 1231. While this court has recognized that the McKay factors are not exclusive, they provide a fair, reasonable, and sound basis for evaluating each case. Trocola, 867 So.2d at 1231.

A defendant’s speedy trial rights are also an important consideration in addressing a motion for a continuance. However, speedy trial was not an issue in this case. The first motion to continue was filed July 13th, which was the 110th day after Jones’s arrest. The speedy trial period would not have expired until September 11, 2009. After considering this fact, and the McKay factors, we conclude the trial court erred by denying the continuance. Jones’s conflict counsel was an experienced lawyer, but he had no experience with Jones’s case. His first contact with Jones was the day trial was scheduled to begin, and he never even had an opportunity to interview or depose the victim, who was the State’s key witness. Clearly, Jones’s attorney had insufficient time and resources to prepare for trial. The fact that counsel was able to discuss the case with the victim for an hour before trial was no cure, especially when Jones faced a life sentence if convicted. See McKay, 504 So.2d at 1282 (criminal defendants are entitled to a preparation period sufficient to assure at least minimal quality of counsel).

In sum, under the circumstances of this case, it was a “palpable” abuse of discretion to deny the continuance. Jones is entitled to a new trial with adequately prepared counsel.

REVERSED and REMANDED for new trial.

EVANDER, J., concurs.

TORPY, J., concurs specially with opinion.

TORPY, J.,

concurring specially.

The public defender filed a motion to withdraw on the eve of trial based on the fact that he had represented the victim. There is no indication in the record that Appellant had been previously made aware of the conflict. Ideally, the public defender should have uncovered the conflict earlier in his representation of Appellant and the dilemma avoided. Even if the dilemma was the fault of the public defender, however, the dilemma certainly should not be attributable to Appellant himself, especially in light of the overriding responsibility of the government to afford effective legal representation to an accused. This was a case where Appellant faced life imprisonment, and it came down to a credibility dispute between Appellant and the victim, who had not been deposed or even interviewed by Appellant’s counsel until the morning of trial. Newly-appointed counsel represented to the court that he could not provide adequate representation and, under the circumstances, I would agree.

It appeared that the trial judge appreciated the need for a continuance. What he offered Appellant, however, was nothing more than a “Hobson’s choice” — either give up the right to effective representation or give up the right to a speedy trial. While it might be appropriate to require a defendant to choose between the two under some circumstances, this is not one of them. In any event, the court could have postponed the trial for almost two months while still affording Appellant his speedy trial.

Although I am mindful of the broad discretion bestowed on trial judges who must manage crowded dockets under difficult circumstances and with sometimes difficult defendants, this is a case where the judge’s call cannot be sustained.


author: GRIFFIN, J.

text:
    Kenneth DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2303.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Kenneth Dawson [“Dawson”] appeals his judgment and sentence for one count of resisting a law enforcement officer with violence and one count of battery upon a law enforcement officer. Dawson argues that the trial court erred by denying his motion for a mistrial based upon a discovery violation. He asserts that the State failed to disclose both the substance of a statement that allegedly was made by him and the name and address of a nurse who allegedly was a witness to the statement. We reverse.

The State charged Dawson in a four-count information with resisting law enforcement officer, Benjamin Slover, with violence; battery upon law enforcement officer, Nicole Harms; battery upon law enforcement officer, Benjamin Slover; and resisting law enforcement officer, Nicole Harms, without violence. The case proceeded to trial, during which Officer Stephen Koubek [“Officer Koubek”] testified that he arrived on scene after Dawson had been taken into custody and that he transported Dawson to the hospital because Dawson had been tasered. When asked about what happened at the hospital, Officer Koubek explained:

While we were in the hospital, the nurse walked in and asked why are we here. I advised he needed to be medicated, he was fighting and there was a tasering and at that time the defendant stated that he would have whooped that officer’s ass if he hadn’t been tasered—

Defense counsel objected to this testimony on the basis of hearsay and relevance. Defense counsel also asserted that a discovery violation had occurred since the State had failed to disclose Dawson’s alleged statement.

When asked by the trial court whether “any statement” had been disclosed, the prosecutor said: “I did not disclose the statement. I disclosed the officer. I mean he has just as much right to talk to the officer as I do. He could have called him up, he could have deposed him and heard it.” The prosecutor also asserted that she had just become aware of the statement the previous evening.

Defense counsel moved for a mistrial, arguing that the State had a duty to disclose the statement as soon as the State learned of it, that the testimony was prejudicial, that had he known about the alleged statement, he would have deposed the nurse who allegedly was present and he would have prepared for trial differently if he had known about Officer Koubek’s testimony. The State responded by blaming defense counsel’s lack of trial preparation because he had not deposed Officer Kou-bek. Defense counsel replied that:

[Tjhis is something that either this officer should have informed the State or the State should have then informed me prior to the time that he got on the witness stand and blurred [sic] it out to the jury. It’s highly inappropriate. It’s extremely prejudicial and it will have greatly impacted my preparations for this case even before we started here this morning.

Defense counsel also pointed out that the State should have disclosed the nurse as a potential witness since the nurse allegedly was present when Dawson made the statement.

The trial court overruled the objection and denied the motion for mistrial, reasoning that defense counsel could not be prejudiced by the State’s failure to tell him about something his own client said. He also found that the State’s discovery violation was not willful. Defense counsel then requested that the testimony be stricken or that the court continue the trial so that he could try to find the nurse. The trial court denied these motions as well. After the jury returned, Officer Koubek repeated his testimony, defense counsel again objected, and the trial court overruled the objection.

As an initial matter, the trial court properly found that the State had committed a discovery violation. See Rojas v. State, 904 So.2d 598, 600 (Fla. 5th DCA 2005). Pursuant to Florida Rule of Criminal Procedure 3.220(b)(1)(C), the State was required to disclose both the substance of the statement allegedly made by Dawson and the name and address of the nurse who allegedly was a witness to the statement. The State also had the duty to promptly disclose the information as soon as it was discovered. Fla. R.Crim. P. 3.220(j).

The trial court considered whether the discovery violation was willful or inadvertent and made a finding that the violation was not willful, but did not say why not. By her own admission, the prosecutor became aware of the statement the night before calling Officer Koubek as a witness, but did not disclose the statement before Officer Koubek testified to it. No excuse was offered; instead, the prosecutor asserted that she had no duty to disclose it. It is hard to fathom how this omission would not be a willful violation.

Finally, although the trial court did not make a specific finding with respect to whether the discovery violation was trivial or substantial, the discovery violation was plainly substantial. Dawson’s theory of defense was that Dawson had been attacked by Officer Slover and that he did not know Officer Slover was a law enforcement officer because Officer Slover attacked him from behind. He merely tried to “prevent himself from being attacked” by putting “his elbows up over his face;” and to “block the officer from hitting him.” Officer Koubek’s testimony that Dawson said that he would have “whooped that officer’s ass if he hadn’t been tasered” undercuts the theory of the defense because it suggests that Dawson was the aggressor and was aware that the interaction was with a law enforcement officer. Rule of Criminal Procedure 3.220 is designed to encourage the truth-seeking process and to promote efficiency. All sides need to expect the rules will be enforced or there will be a temptation to evade them.

REVERSED and REMANDED.

SAWAYA and PALMER, JJ., concur.


author: ORFINGER, J.

text:
    Shakil KHAN and Dina Khan, Appellant, v. BANK OF AMERICA, N.A., Appellee.
    No. 5D10-3288.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2011.
    Craig R. Lynd, Matthew D. Valdes and Jonathon C. Blevins, of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

Shakil and Dina Khan appeal a final summary judgment of foreclosure entered in favor of Bank of America, N.A. We reverse.

In its amended complaint to foreclose a mortgage on the Khans’ home, Bank of America alleged that it was the owner and holder of the note and mortgage. However, the copy of the note attached to the amended complaint bears an endorsement from Bank of America to Wells Fargo Bank, N.A. as trustee for the holders of Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2006-B. The Khans correctly raised the issue of Bank of America’s standing to prosecute the foreclosure based on the assignment of the note to Wells Fargo Bank.

The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Taylor v. Deutsche Bank Nat. Trust. Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010); BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000). Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

PALMER and EVANDER, JJ., concur.


author: PER CURIAM.

text:
    Kevin James SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0908.
    District Court of Appeal of Florida, First District.
    April 8, 2011.
    Kevin James Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, HAWKES, and ROWE, JJ., concur.


author: CASANUEVA, Chief Judge.

text:
    Dorian Kimberly MATHEWS, Appellant, v. STATE of Florida, Appellee.
    District Court of Appeal of Florida, Second District.
    April 13, 2011.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Chief Judge.

Dorian Kimberly Mathews appeals orders finding her in violation of the terms of her probation, revoking that probation, and imposing a prison sentence. However, Ms. Mathews’ probation may have automatically terminated before the alleged violations because she asserts that she fully complied with a special condition providing for early termination. If she complied, the trial court was without jurisdiction to revoke probation or impose a prison sentence. Accordingly, we reverse the orders on appeal and remand for a new violation of probation hearing.

Ms. Mathews began her probationary term after pleading guilty to three counts of possession of controlled substances. The next month her probation officer filed an affidavit alleging she violated the terms of her probation. At a hearing on that violation of probation, Ms. Mathews’ counsel informed the court that she planned to travel to New Jersey so her mother could take responsibility for her. The trial court reinstated all the terms of her probation but added one condition. It orally pronounced that “[Ms. Mathews] can be released to her sister on Saturday morning at seven a.m. directly to the airport, get on that plane. When you get [to New Jersey], call your probation officer and tell them that you’re there and your probation can terminate.” The trial court memorialized this added condition in a written order that stated, “Once defendant gets to New Jersey she is to call her Probation Officer. Once verified her Probation can terminate.”

Three months later, Ms. Mathews’ probation officer submitted an affidavit of violation of probation alleging that Ms. Mathews had violated (1) condition six by associating with persons engaged in criminal activities, (2) condition seven by possessing Xanax without a prescription, and (3) condition nine by failing to relocate permanently to New Jersey and failing to comply with the instructions of her probation officer. The allegation regarding condition nine asserted that Ms. Mathews informed her probation officer that she never planned on staying in New Jersey and that she refused to comply with the probation officer’s request that she obtain a New Jersey identification card.

At the hearing on this affidavit of violation, Ms. Mathews admitted violating all three conditions. She also explained, through counsel, that she had traveled to New Jersey and called her probation officer. She claimed that she was unable to procure the identification card because the necessary sources of identification were in a storage unit in Florida. The State offered to have the probation officer testify, but the trial court declined. In fact, the court heard no testimony at this hearing. Instead, the court found Ms. Mathews guilty of violating only condition seven by possessing Xanax without a prescription and imposed an eighteen-month prison sentence.

On appeal, Ms. Mathews argues that the trial court lacked jurisdiction to revoke her probation because it had terminated when she called her probation officer from New Jersey. This issue is a question of fundamental error and may be raised for the first time on appeal. See Wright v. State, 47 So.3d 972, 973 n. 1 (Fla. 4th DCA 2010) (addressing an argument that the trial court lacked jurisdiction when the alleged violation occurred after the probationary term ended). Ms. Mathews did not waive the argument by admitting to violating her probation. See id. at 973.

The State answers that Ms. Mathews’ probation did not terminate because she did not comply with her probation officer’s subsequent instructions to obtain a New Jersey identification card and transmit that documentation to him. The State also argues that the trial court intended that Ms. Mathews permanently relocate to New Jersey and not return to Florida. Notably, the State does not argue that Ms. Mathews did not travel to New Jersey or that she did not call her probation officer when she arrived.

The condition’s plain language required Ms. Mathews to do two things — travel to New Jersey and call the probation officer from there. If Ms. Mathews’ statements are true, then she complied fully with both of these court-imposed requirements and her probation instantly terminated upon their completion. See Manning v. State, 890 So.2d 531 (Fla. 1st DCA 2005) (holding that once defendant had fulfilled an orally pronounced special condition that allowed his probation to automatically terminate, the trial court could not find him guilty of a violation that occurred subsequent to the date he complied with the special condition); Gipson v. State, 997 So.2d 1276 (Fla. 4th DCA 2009) (holding that the defendant’s probation automatically terminated after five years when the trial judge, when pronouncing sentence, said “probation will early terminate at the end of five years”). The trial court is divested of jurisdiction over a probationer once the term of probation expires. See Francois v. State, 695 So.2d 695, 697 (Fla.1997). If Ms. Mathews called from New Jersey, her probation terminated at that time and she had no legal responsibility to comply with her probation officer’s subsequent demands regarding the New Jersey identification card.

Consequently, we reverse the orders on appeal and remand for a new violation of probation hearing. On remand, the trial court shall first take testimony to determine whether Ms. Mathews traveled to New Jersey and called her probation officer from there. If the trial court determines that she complied with both those requirements, it shall dismiss the affidavit of violation of probation for lack of jurisdiction.

Reversed and remanded with instructions.

VILLANTI and MORRIS, JJ., Concur.


text:
    William T. McLEOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3372.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2011.

      William T. McLeod, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   AMENDED OPINION

ORFINGER, J.

William T. McLeod seeks review of the trial court’s summary denial of his motion seeking additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The issue that we address is whether a defendant can, as part of a plea agreement, waive jail credit, which results in the defendant serving a term of imprisonment that exceeds the statutory maximum for the offense that he committed. We conclude that such a sentence is illegal and reverse the order under review.

McLeod’s original sentence for a third-degree felony included a period of probation. The maximum sentence allowed by law for a third-degree felony is a term of imprisonment not to exceed five years. See § 775.082(B)(d), Fla. Stat. (2007). Following his second violation of probation, McLeod entered into a plea agreement with the State wherein he admitted his most recent violation in exchange for a five-year prison sentence, suspended upon the successful completion of five years of drugoffender probation. Included in the written plea agreement was the following language: “CTS from arrest on any future V.O.P.” The trial court accepted the plea agreement and the agreed-upon sentence was imposed.

Not surprisingly, McLeod violated his probation yet again, and the court reimposed the previously suspended five-year prison term. The trial court awarded McLeod only 92 days of jail credit, apparently the amount of time that he spent in jail from the date of his most recent arrest to the date that his suspended sentence was reimposed. In his motion for additional jail credit, McLeod claims entitlement to a total of 318 days spent in the county jail awaiting the disposition of his various probation violations, and an additional 177 days for the time that he spent in a residential drug treatment facility. The trial court concluded that the language “CTS from arrest on any future V.O.P.” amounted to a waiver of all jail credit except for the 92 days that it awarded.

“[Although a defendant can waive jail credit as a condition of a plea, the waiver must be knowing and affirmatively appear as a condition of the plea agreement.” Canada v. State, 1 So.3d 338, 339 (Fla. 5th DCA 2009) (quoting Hill v. State, 985 So.2d 1216, 1217 (Fla. 5th DCA 2008)). We, however, do not view the statement “CTS from arrest on any future V.O.P.” as conclusive evidence that McLeod knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled. Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007). Consequently, reversal is required to allow the trial court to demonstrate that McLeod knowingly and voluntarily waived any jail credit by providing a copy of the plea and sentencing transcript.

The issue of waiver notwithstanding, it appears that McLeod’s sentence exceeds the five-year maximum period set forth by law for the felony that he committed, and thus, constitutes an illegal sentence. See Henderson v. State, 720 So.2d 1121, 1122 (Fla. 4th DCA 1998). Even with a defendant’s agreement, a court is without jurisdiction to impose a sentence in excess of the statutory maximum. See Collins v. State, 697 So.2d 1305, 1307-08 (Fla. 4th DCA 1997). If McLeod served 318 days in jail prior to his various sentencing hearings (an allegation that the State does not contest), then his five-year prison sentence allowing only 92 days of jail credit will cause him to serve, in the aggregate, more than the five-year statutory maximum.

For these reasons, we reverse the order denying McLeod’s motion for additional jail credit and conclude that a defendant may not, as part of a plea agreement, waive jail credit, which would result in the defendant serving a term of imprisonment that exceeds the statutory maximum for the offense committed.

REVERSED AND REMANDED.

TORPY and JACOBUS, JJ., concur.

      . The record fails to disclose the sentence that McLeod originally received.

      . "CTS” means credit for time served. "V.O.P.” means violation of probation.

      . We reach this conclusion by beginning with McLeod’s five-year sentence, adding the 318 days served to it, and subtracting the 92 days of credit awarded. The net time of the sentence is five years and 226 days without regard to gain time.


text:
    Bruce E. PAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5862.
    District Court of Appeal of Florida, Second District.
    April 15, 2011.
    Bruce E. Payton, pro se.
   PER CURIAM.

Bruce E. Payton challenges the summary denial of his motion for leave to file a belated postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. Because Payton’s appeal is from a nonfi-nal, nonappealable order, it is dismissed. See Manning v. State, 28 So.3d 971, 972 (Fla. 2d DCA 2010) (dismissing an appeal from an order denying a motion for extension of time to file a postconviction motion and holding that “the issue must be appealed after the filing and disposition of the postconviction motion”).

Payton shall have thirty days following the date that this opinion becomes final to file his rule 3.850 motion for postconviction relief, at which time the trial court can determine the issues of timeliness and suc-cessiveness and dispose of the motion on the merits, if appropriate. See Ham v. State, 36 So.3d 189, 190 (Fla. 2d DCA 2010). We note that if Payton chooses to file a rule 3.850 motion, it would be the second such motion he has filed. The postconviction court denied his first motion as untimely, and this court affirmed the order. See Payton v. State, 44 So.3d 589 (Fla. 2d DCA 2010) (table). Accordingly, this opinion should not be interpreted as a determination that the postconviction court is precluded from finding that Payton’s second motion, should he file one, is procedurally barred.

Dismissed.

SILBERMAN, MORRIS, and BLACK, JJ., Concur.


author: MAY, J.

text:
    GENERAL MOTORS LLC, Appellant, v. Sheri Marlene BOWIE, Appellee.
    No. 4D10-387.
    District Court of Appeal of Florida, Fourth District.
    April 20, 2011.
    David B. Shelton, Charles P. Mitchell and Steven I. Klein of Rumberger, Kirk & Caldwell, Orlando, for appellant.
    Patrick St. George Cousins of Cousins Law Firm, P.A., West Palm Beach, for appellee.
   MAY, J.

Florida’s “Lemon Law” — Does it authorize an award of attorney’s fees incurred during arbitration of the refund option? That is the question in this appeal. An auto manufacturer appeals a judgment awarding the vehicle owner such fees. It argues that the “Lemon Law” does not provide for such an award. We agree and reverse.

The owner purchased a car, but sought relief under Florida’s Lemon Law after experiencing trouble with it. The owner initially filed a claim with the Council of Better Business Bureaus, Inc. (BBB). The manufacturer responded by offering to repurchase the car and provide a full refund. Because the owner wanted to recover attorney’s fees, she rejected the settlement offer and the BBB decision.

The owner then proceeded to arbitration through the Florida New Motor Vehicle Arbitration Board. In a letter to the owner’s counsel, the manufacturer reiterated its offer to repurchase the car and make a net refund of $11,000. Once again, the owner rejected the offer because it did not include attorney’s fees.

The owner then filed a complaint in circuit court, pursuant to section 681.112, Florida Statutes (2006), seeking recovery for pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief. The owner moved for partial summary judgment on the entitlement to recover attorney’s fees incurred in the arbitration. At the hearing, the owner’s attorney advised: “We are only seeking attorney’s fees and litigation costs ... for the arbitration itself and the fees for seeking fees in this case.” The trial court granted the motion; the owner then moved to determine the amount of attorney’s fees.

The manufacturer subsequently filed its own motion for summary judgment on the issue based on a newly issued opinion, General Motors Corp. v. Sanchez, 16 So.3d 888 (Fla. 3d DCA 2009). The court denied the motion, and entered a final judgment against the manufacturer in the amount of $19,350, which included $5,000 for fees incurred in the arbitration and $14,350 for fees incurred in the lawsuit. The trial court also awarded expert witness fees and taxable costs.

We have de novo review of the issue as it involves a matter of statutory interpretation. Am. Honda Motor Co., Inc. v. Cerasani, 955 So.2d 543, 545 (Fla.2007).

On appeal, the manufacturer argues that attorney’s fees incurred in arbitrating a Lemon Law claim do not constitute “damages” under section 681.112. The owner responds that our opinion in Gelinas v. Forest River, Inc., 931 So.2d 970 (Fla. 4th DCA 2006), authorized the fee award. The manufacturer replies that Gelinas did not decide the issue. Alternatively, if Ge-linas did decide the issue, it was wrongly decided.

We begin our analysis by reviewing the pertinent statutory language of section 681.112.

A consumer may file an action to recover damages caused by a violation of this chapter. The court shall award a consumer who prevails in such action the amount of any pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief.

§ 681.112(1), Fla. Stat. (2006) (emphasis added). The plain language of the statute allows a consumer to “file an action to recover damages” and provides for attorney’s fees to a prevailing consumer, but only in “such action.” The plain language does not authorize an action solely for attorney’s fees.

We discussed the term “damages” as used in section 681.112 in King v. King Motor Co. of Fort Lauderdale, 780 So.2d 937, 941 (Fla. 4th DCA 2001).

Section 681.112(1) uses the term “damages” and indicates that a prevailing consumer may recover “the amount of any pecuniary loss.” When discussing the replacement/refund option, the statute uses the terms “refund,” “replacement,” “relief,” and “compliance” with an arbitration decision.' This difference in terminology indicates that the statute uses the term “damages” to mean something other than the replacement/refund option. As used in section 681.112(1), “damages” should be given its plain and ordinary meaning of pecuniary compensation recovered by a person who has suffered a loss caused by a violation of Chapter 681.

Id. at 941 (emphasis added) (citation omitted).

The Third District Court of Appeal has similarly held that “damages” in section 681.112(1) do not envision attorney’s fees incurred in Lemon Law arbitration. Gen. Motors Corp. v. Sanchez, 16 So.3d 883, 884-85 (Fla. 3d DCA 2009). As Judge Schwartz wrote, “[it is] well established in Florida, which fully endorses the so-called American Rule on the question, that each party, including the successful one, in litigation must ordinarily bear the burden of his own attorneys’ fees. Of the narrow exceptions to this doctrine, the only one which even conceivably applies arises when fees are authorized by statute.” Id. at 884 (citations omitted). We concur with the Third District that “simply put, the term ‘damages’ does not include attorneys’ fees.” Id.

To the extent that the owner interprets Gelinas as authorizing an action under section 681.112 solely for fees incurred in an arbitration proceeding seeking the refund option, we held no such thing. As the manufacturer argues, this court was not asked to decide that issue in Gelinas. Rather, we were asked to decide whether the trial court had erred in granting a summary judgment precluding the claimant from bringing a cause of action for other pecuniary losses unrecoverable in a Lemon Law claim. We held that section 681.112 provided recovery for damages “unrelated to refund or replacement of the vehicle.” Gelinas, 931 So.2d at 975. We decided nothing more.

Here, the owner filed suit solely for the recovery of attorney’s fees incurred in pursuing the refund option in arbitration. If the owner had sought recovery for some “damage” other than attorney’s fees and prevailed, then the fee provision of section 681.112 would have been triggered. But, “damages” under section 681.112 do not include attorney’s fees incurred in pursuing the refund option through arbitration.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ„ concur.

      . § 681.112, Fla. Stat. (2006).

      . This holding is also consistent with our supreme court’s decision in Hubbel v. Aetna Casualty & Surety Co., 758 So.2d 94, 97 (Fla. 2000).


author: KHOUZAM, Judge.

text:
    Greyson MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-864.
    District Court of Appeal of Florida, Second District.
    April 27, 2011.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Greyson Mills appeals his convictions for trafficking in illegal drugs (oxycodone), possession of morphine, providing a false name or identity to law enforcement, and loitering and prowling. Mills argues that the trial court should have granted his motion to suppress dispositive evidence because the officers had no reasonable suspicion to stop or probable cause to arrest him for loitering and prowling. We reverse the denial of the motion to suppress because the officers did not have probable cause to arrest Mills. As the lack of probable cause to arrest compels us to reverse, we do not reach the issue of whether the officers had reasonable suspicion to stop Mills.

On February 17, 2009, at about 12:30 a.m., two police officers were patrolling the East Gateway area of downtown Clear-water — which they considered to be a high crime area and which had been recently hit with a series of “smash-and-grab” burglaries — when they saw a man walking out from behind a closed business complex. The officers circled around the block, and the man turned to walk back the way from which he had come. Because the man’s behavior had drawn their attention, the officers pulled behind the business complex. There, they observed the man standing in a dark area “up against the building, behind a tree in ... some overgrowth.” The officers put a spotlight on the man, and he walked toward them. When they asked him what he was doing, he stated that he had walked behind the business because he had gotten nervous when he saw the police cruiser. He told the officers that his name was David Mills.

The officers arrested Mills for loitering and prowling. When they searched him, they discovered prescription pills (oxyco-done and hydromorphone). Upon finding the pills, the officers read Mills his Miranda rights. Mills told them that the pills were for his blood pressure and heart. He explained that he was living at the motel next to the business complex (the two buildings were linked by a parking lot). The officers later discovered that the man’s name was actually Greyson Mills. There were no 911 calls reporting criminal activity in the immediate area at the time the officers stopped Mills.

In an appeal of a motion to suppress, we must accept the trial court’s findings of fact if they are supported by competent, substantial evidence. Simms v. State, 51 So.3d 1264, 1265 (Fla.2d DCA 2011). We review the trial court’s application of the law de novo. Id.

To justify arresting Mills, the officers needed probable cause to believe that he had already committed, was currently committing, or was about to commit a crime. See Caldwell v. State, 41 So.3d 188, 196 (Fla.2010). Here, the officers arrested Mills for loitering and prowling. See § 856.021, Fla. Stat. (2008). There are two elements to the crime of loitering and prowling. Ferguson v. State, 39 So.3d 551, 553 (Fla. 2d DCA 2010).

First, “‘the accused must loiter or prowl in a manner not usual for a law-abiding citizen. This conduct must come close to but fall short of the actual commission or attempted commission of a substantive crime and suggest that a breach of the peace is imminent.’ ” Id. (quoting Rucker v. State, 921 So.2d 857, 859 (Fla. 2d DCA 2006)). The first element requires more than a “vaguely suspicious presence.” J.S.B. v. State, 729 So.2d 456, 457 (Fla. 2d DCA 1999). And a defendant’s “response to the police pursuit cannot be used retroactively to support an imminent suspicion of criminal activity.” Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008).

Second, “ ‘the factual circumstances must establish that the accused’s behavior is alarming in nature, creating an imminent threat to public safety.’ ” Ferguson, 39 So.3d at 553 (quoting Rucker, 921 So.2d at 859). In this context, “drug possession does not pose a threat to persons or property.” Stephens v. State, 987 So.2d 182, 184 (Fla. 2d DCA 2008). Both elements of the offense of loitering and prowling must occur in the officer’s presence and must be completed before the officer takes action. J.S.B., 729 So.2d at 457. Additionally, “[a] defendant’s explanation of his presence is not an element of the crime [of loitering and prowling].” Simms, 51 So.3d at 1267.

Because of its potential for abuse, the loitering and prowling statute must be applied with special care. Id. at 1268. “ ‘It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention.’ ” Id. (quoting L.C. v. State, 516 So.2d 95, 97 (Fla. 3d DCA 1987)). “Instead, the proper application of this statute ‘requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.’” L.C., 516 So.2d at 97 (quoting State v. Ecker, 311 So.2d 104,107 (Fla.1975)).

The officers in this case did not have probable cause to arrest Mills for loitering and prowling. Because they did not observe Mills committing both elements of the crime, they could not provide an objective, articulable justification for arresting him. See Simms, 51 So.3d at 1268; Watts v. State, 583 So.2d 792 (Fla. 2d DCA 1991); Woody v. State, 581 So.2d 966 (Fla. 2d DCA 1991).

In Woody, a police officer on patrol at 6:40 p.m. noticed a group of several men congregating in a residential neighborhood known for drug activity. Upon seeing the officer in his marked vehicle, the men fled. One of the men, Arthur Woody, hid in dense foliage about thirty to forty feet away from nearby homes. When the officer approached Woody and questioned what he was doing, he replied that he was “just hanging out.” Woody, 581 So.2d at 966. The officer, unsatisfied with the explanation, arrested Woody for loitering and prowling. In a search incident to the arrest, the officer discovered a crack pipe with cocaine residue. The officer testified that he had arrested Woody to prevent him from robbing or kidnapping passersby. This court held that the officer did not have probable cause to arrest Woody for loitering and prowling, stating that the officer’s concern for the safety of passersby was “not supported by any articulable facts which could reasonably warrant such a concern.” Id. at 967. The court further clarified that the officer’s concern was “based on pure speculation; there was nothing to suggest any independent criminal activity afoot.” Id.

Much like the officer in Woody, the officers in this case arrested Mills based on “pure speculation.” Mills was at most a vaguely suspicious presence. While he was in a high crime area that had been hit with a series of “smash-and-grab” burglaries, there had been no report of a burglary in the area at the time the officers encountered him. Mills’ conduct of walking out from behind a closed business, turning around when he saw the officers, and walking back behind the closed business did not come close to the actual commission or attempted commission of a substantive crime. Nor did it suggest that a breach of the peace was imminent.. Additionally, Mills’ behavior did not raise alarm or suggest an imminent breach of the peace or threat to persons or property.

Mills attempted to avoid the police and, when the officers pursued him, he concealed himself. But when the officers spoke to him, he came out from his hiding place, identified himself, and provided some explanation for his behavior. While his explanation that the police made him nervous was vaguely suspicious, it was not enough to raise alarm or suggest an imminent threat.

And though the officers later discovered that Mills had provided a false name and had illegal drugs on him, these facts cannot be used retroactively to support the officers’ suspicion of imminent criminal activity. See Stephens, 987 So.2d at 184. Furthermore, evidence of these two types of crimes would not- support a finding that Mills was an imminent threat to persons or property. See id.

Because the officers did not have probable cause to arrest Mills, the evidence obtained during the search should have been suppressed. Accordingly, we reverse.

Reversed.

KELLY and BLACK, JJ„ Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).