text:
    V.P., a child, Petitioner, v. STATE of Florida and Department of Juvenile Justice, Respondents.
    No. 4D11-3001.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      Diamond R. Litty, Public Defender, and Renee M. Rancour, Assistant Public Defender, Vero Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondents.
   PER CURIAM.

A juvenile petitions this court for a writ of habeas corpus arguing that the court exceeded its authority in placing the juvenile on home detention with electronic monitoring and imposing an 8 p.m. curfew pending placement in a moderate risk residential program. The juvenile argues that home detention cannot exceed five days unless the Department of Juvenile Justice [DJJ] requests an additional ten days, which did not occur. We previously issued an order denying the petition. We now explain our decision.

The court adjudicated the juvenile delinquent for first-degree petit theft and revoked probation in three separate cases where the child was charged with battery, second-degree petit theft, and grand theft. In the accompanying detention order, the trial court placed the juvenile on home detention -with electronic monitoring and imposed an 8 p.m. curfew until placement.

Section 985.27(l)(b), Florida Statutes (2011), provides:

(b) A child who is awaiting placement in a moderate-risk residential program must be removed from detention within 5 days, excluding Saturdays, Sundays, and legal holidays. Any child held in secure detention during the 5 days must meet detention admission criteria under this part. The department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after entry of the commitment order, excluding Saturdays, Sundays, and legal holidays, and except as otherwise provided in this section. A child who is placed in home detention care, nonse-eure detention care, or home or nonse-cure detention care with electronic monitoring, while awaiting placement in a moderate-risk program, may be held in secure detention care for 5 days, if the child violates the conditions of the home detention care, the nonsecure detention care, or the electronic monitoring agreement. For any subsequent violation, the court may impose an additional 5 days in secure detention care.

§ 985.27(l)(b), Fla. Stat. (2011).

The juvenile argues that there is no statutory authority for unlimited home detention and that the phrase “must be removed from detention within 5 days” in the first sentence limits all forms of detention to five days. We disagree.

We look first to the language of the statute and its plain meaning. Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). In plain terms, the word “detention” means “a holding in custody.” Webster’s Third New International Dictionary 616 (1996). In the ordinary sense, “detention” is typically understood as a physical “holding in custody” of a person or object. In law, of course, the “holding in custody” may be constructive, that is, legal “custody,” a restraint upon the liberty of the person. “Detention care” is defined to include all forms of detention under Chapter 985: secure, nonsecure, and home detention. § 985.03(18), Fla. Stat. (2011). The first sentence of the subdivision at issue uses the term “detention,” not “detention care.”

The question is whether the legislature limited all forms of “detention” for juveniles awaiting placement in moderate risk programs to five days unless extended on motion by DJJ. We think not for three reasons.

First, section 985.27(1) provides: “The court must place all children who are adjudicated and awaiting placement in a commitment program in detention care. Children who are in home detention care or nonsecure detention care may be placed on electronic monitoring.” (emphasis supplied). This means that a child awaiting placement cannot be released outright. Home detention is the least restrictive form of detention care available to the court. “Home detention” is “physically nonrestrictive.” § 985.03(18)(c), Fla. Stat. (2011) (defining “home detention” as “temporary custody of the child while the child is released to the custody of a parent, guardian, or custodian in a physically nonrestrictive environment under supervision of the Department”).

Second, the subdivision provides:

The department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after entry of the commitment order, excluding Saturdays, Sundays, and legal holidays, and except as otherwise provided in this section.

§ 985.27(l)(b), Fla. Stat. (2011) (emphasis added).

The word “such” means “of the sort or degree previously indicated or implied.” Webster’s Third New International Dictionary 2283 (1996). Black’s Law Dictionary (8th Edition) defines “such” as: “1. Of this or that kind.... 2. That or those; having just been mentioned.” Thus, the “detention” and “continued detention” that are discussed, and which are limited to a maximum of 15 days, is “secure detention,” not home detention. The “detention” that may be “continued,” and which is limited to five days by the first sentence, is secure detention. The time limitations in this subdivision apply only to “secure detention” of juveniles awaiting placement in moderate risk programs.

Third, the subdivision provides for a five-day secure detention sanction for each “violation” and “subsequent violation” of home detention, nonsecure detention, or electronic monitoring. These sanctions would be rendered virtually meaningless if the child must ordinarily be removed from home or nonsecure detention within five days.

Several reported decisions support our reading of the statute. S.C. v. Peterson, 718 So.2d 220 (Fla. 4th DCA 1998) (denying habeas corpus where the juvenile had been on home detention pending placement for more than 60 days); K.P. v. State, 952 So.2d 1229, 1230 (Fla. 5th DCA 2007) (finding that a petition for habeas corpus, which had challenged a 15-day term of secure detention pending placement, was moot because the juvenile was released to unlimited home detention); Q.A. v. Dep’t of Juv. Justice, 858 So.2d 1230, 1231 (Fla. 1st DCA 2003) (accepting DJJ’s concession that the juvenile had to be released from secure detention to home detention with electronic monitoring). These cases recognize that the statute’s time limitation refers only to “secure detention” pending placement. After the time in secure detention has expired, the juvenile must be transferred to home or nonsecure detention, not released outright.

Only by reading section 985.27 in its entirety and in the context of the chapter can the statute be given its logical meaning. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (explaining that “all parts of a statute must be read together in order to achieve a consistent whole”).

[I]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.

E.A.R., 4 So.3d at 629.

Chapter 985 treats the postcommitment detention of juveniles awaiting placement in a residential program differently than precommitment detention. A child committed to a moderate risk residential program but awaiting placement is not “free.” The child’s liberty is restrained in both an ordinary and legal sense. Moderate risk residential programs “provide 24-hour awake supervision, custody, and care, and treatment of residents. Youth assessed and classified for placement in programs at this commitment level represent a moderate risk to public safety and require close supervision.” § 985.03(45)(e), Fla. Stat. (2011) (emphasis added).

Chapter 985 acknowledges that “there is a need for secure placement for certain children alleged to have committed a delinquent act.” § 985.02(4)(a), Fla. Stat. (2011) (emphasis added). In a predisposition posture, the juvenile is presumed innocent, and the chapter limits the uses of precom-mitment “detention.” Postcommitment detention occurs after a juvenile has been adjudicated delinquent and after the court has committed the juvenile to a residential program. Such a juvenile is not merely alleged to have committed a delinquent act; there has been a finding of guilt. See generally §§ 985.24, et seq., Fla. Stat. (2011) (Part V of Chapter 985, discussing the permitted uses and criteria for detention which apply in a pre-commitment posture).

The legislature has structured the po-stcommitment detention statute in a manner that ensures that all committed juveniles awaiting placement in residential programs are physically detained or supervised in some fashion, not released without restrictions. The statute insures that those juveniles who are awaiting placement in low or moderate risk facilities do not languish in secure detention. The length of postcommitment secure detention is commensurate with the risk level of the juvenile and the commitment program.

Conclusion

Because the statute is unambiguous when read in full and in context, we need not look behind the language to determine legislative intent. The legislative history and structure of the statute, as it has evolved over the years, supports our reading and leads to its logical conclusion. For the reasons expressed herein, the petition is denied.

Petition denied.

MAY, C.J., GROSS and CIKLIN, JJ„ concur.

APPENDIX:

Postcommitment Detention of Juveniles Awaiting Placement

The post-commitment detention provisions were created in 1990. Ch. 90-208, § 5, Laws of Fla. The relevant section provided:

When a child is committed to the department awaiting dispositional placement, removal of the child from detention care shall occur within 5 days, excluding Saturdays, Sundays, and legal holidays. A child placed into secure detention care and committed to the department who is awaiting dispo-sitional placement in a commitment program shall be transferred by the department into nonsecure or home detention care if placement does not occur within 5 days after commitment, excluding Saturdays, Sundays, and legal holidays. If the child is committed to a residential program, the department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care or transfer to nonsecure or home detention care shall not exceed 15 days after commitment, excluding Saturdays, Sundays, and legal holidays.

§ 39.044(11), Fla. Stat. (Supp. 1990) (emphasis added). From inception, the statute limited “secure detention” to five days with a possible ten-day extension to be followed by home or nonsecure detention. The initial version did not require the detention of committed juveniles awaiting placement and did not differentiate between juveniles committed to low, moderate, high, or maximum risk residential programs. Secure detention of a juvenile committed to a residential program was limited to five days — with a possible ten-day extension — at the conclusion of which the juvenile was to be transferred to home or nonsecure detention.

In R.L. v. State, 578 So.2d 862 (Fla. 5th DCA 1991), the court rejected the argument that this section authorized “unlimited home detention” pending placement, perhaps misreading the statute. It interpreted the statute to limit secure detention to five days after which the juvenile could be transferred to home detention, but the child could be held in home detention only up to fifteen days from the commitment order. Id. at 863.

When R.L. was decided, detention of committed juveniles awaiting placement was optional. The court could outright release the juvenile awaiting placement in a residential program. Any form of detention care ordered pending placement had to be authorized by the statutory criteria governing the use of predisposition detention. See R.W. v. Soud, 639 So.2d 25 (Fla.1994); D.F.M. v. State, 647 So.2d 1075 (Fla. 5th DCA 1994) (concluding that court erred in placing juvenile on home detention pending placement where no findings authorizing home detention were made).

1994 Amendments

In 1994, the legislature amended the postcommitment detention section. Ch. 94-209, § 31, Laws of Fla. The amended section began to differentiate between those juveniles awaiting placement in low or moderate risk programs and those committed to high or maximum risk programs. The legislature for the first time made postcommitment detention mandatory for high and maximum risk juveniles. The statute that became effective in 1995 read:

When a child is committed to the Department of Juvenile Justice awaiting dispositional placement, removal of the child from detention care shall occur within 5 days, excluding Saturdays, Sundays, and legal holidays. If the child is committed to a low-risk residential program or moderate risk residential program, the department may seek an order from the court authorizing continued detention for a specific period of time necessary for the appropriate residential placement of the child. However, such continued detention in secure detention care may not exceed 15 days after commitment, excluding Saturdays, Sundays, and legal holidays and except as otherwise provided in this subsection. Effective July 1, 1995, the court may order that a child be held in home detention of unlimited duration with electronic monitoring while awaiting placement in a low-risk residential program or a moderate risk residential program.

§ 39.044(10)(a), Fla. Stat. (1995) (emphasis supplied). In apparent response to R.L., the 1994 legislature added the emphasized language specifically authorizing the court to order home detention of unlimited duration with electronic monitoring for juveniles awaiting placement in low and moderate risk residential programs. The first sentence was now intended to limit only the secure detention of low and moderate risk juveniles.

The 1994 legislation created new subdivisions (10)(b) and (10)(c), which provided that those juveniles committed to high or maximum risk residential programs “must be held in detention care until placement or commitment is accomplished.” § 39.044(10)(b), Fla. Stat. (1995) (emphasis supplied); § 39.044(10)(c), Fla. Stat. (1995) (emphasis supplied). The new subdivisions made detention care mandatory for high and maximum risk juveniles regardless of whether they qualified for detention care in a preadjudication or predisposition posture.

Importantly, under this new scheme, the legislature provided for a possible 10-day extension of “detention care” for low or moderate risk juveniles. The legislature did not provide for an extension of the time high or maximum risk juveniles could be held in detention care. If the five-day limit in the first sentence applied to all forms of detention care, as petitioner argues, then high and maximum risk juveniles would have to be released from all forms of detention within five days with no allowance for an extension. The legislature could not have intended that high and maximum risk juveniles would be subject to less restrictive postcommitment detention than low or moderate risk juveniles.

As to high-risk placements, the legislature provided: “Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels.” § 985.03(45)(d), Fla. Stat. (2011).

As to maximum risk placements, “Youth assessed and classified for this level of placement require close supervision in a maximum security residential setting. Placement at this level is prompted by a demonstrated need to protect the public.” § 985.03(45)(e), Fla. Stat. (2011). Maximum risk programs “are long term residential and do not allow youth to have access to the community.” Id.

Juveniles committed to high and maximum risk residential placements pose the greatest threat to society, often to themselves, and require the greatest amount of supervision. They have been adjudicated delinquent for serious offenses and committed to secure residential facilities which are “hardware-secure with perimeter fencing and locking doors.” § 985.03(45)(d), Fla. Stat. (2011); § 985.03(45)(e), Fla. Stat. (2011) (“[Maximum-risk residential] [facilities are maximum-custody hardware-secure with perimeter security fencing and locking doors”).

This evolution shows that the five-day time limit of the first sentence applies to the secure detention of low and moderate risk juveniles. A contrary reading would lead to an absurd result. State v. Iacovone, 660 So.2d 1371, 1373 (Fla.1995) (quoting Williams v. State, 492 So.2d 1051, 1054 (Fla.1986), “Statutes, as a rule, ‘will not be interpreted so as to yield an absurd result’ ”).

1996 Amendments

In 1996, the legislature again amended the postcommitment detention subsection. Ch. 96-398, § 5, Laws of Fla. The 1996 amendment removed the sentence expressly allowing “home detention of unlimited duration with electronic monitoring” and added the following:

The court must place all children who are adjudicated and awaiting placement in a residential commitment program in detention care. Children who are in home detention care or nonsecure detention care may be placed on electronic monitoring.

§ 39.044(10)(a)2, Fla. Stat. (Supp.1996) (emphasis supplied). This new section, which remains substantially the same in the present statute, requires postcommitment detention care of all juveniles committed to residential programs, and does not require that the pre-disposition statutory criteria for home or nonsecure detention be met.

The 1996 amendment mandated some form of detention care for all juveniles pending placement, including those committed to low or moderate risk residential programs. No longer could the court outright release the committed juvenile. Although the 1996 amendment removed the language that expressly authorized unlimited home or nonsecure detention, the statute now required some form of detention care for all committed juveniles. Home detention is the least restrictive form of detention care and is by definition, “nonrestrictive.”

In the same legislation, the legislature gave “teeth” to the expanded use of home and nonsecure postcommitment detention.

A child who is placed on home detention care, nonsecure detention care, or home or nonsecure detention care with electronic monitoring, while awaiting placement in a low-risk or moderate-risk program, may be held in secure detention care for 5 days, if the child violates the conditions of the home detention care, the nonsecure detention care, or the electronic monitoring agreement. For any subsequent violations, the court may impose an additional 5 days in secure detention care.

§ 39.044(10)(a)2, Fla. Stat. (Supp. 1996). Again, the statute did not provide for sanctions for high and maximum risk juveniles. Were we to accept petitioner’s reading, the five-day limit in the first sentence would have required high and maximum risk juveniles to be released within five days from all forms of detention, with no possible extension, and with no possible sanctions for violations of home or nonsecure detention. The legislature could not have intended this absurd result.

The Present Statute

The present version of the statute is now found in section 985.27, Florida Statutes, and is titled “Postcommitment detention while awaiting placement.”

In 1998, the legislature added language that required that any child held in secure detention awaiting placement must meet the statutory criteria for secure detention. Ch. 98-207, § 13, Laws of Fla. The April 1, 1998 Staff Analysis for CS/SB 2288 describes the then-existing state of the law and explains: “The youths awaiting placement in a low or moderate-risk residential program can also be held in home detention with electronic monitoring for an unlimited time period.” Id. at 5. The Analysis describes the purpose of the proposed change: “According to the DJJ, this change will prevent a misdemeanant who does not meet detention criteria from being held in secure detention while waiting to be placed in a low-risk or moderate-risk program. (This youth will still be required to be in non-secure or home detention care.)” Id. at 10.

In 2006, this section was renumbered and amended to its present form. Ch. 2006-120, § 37, Laws of Fla. A whereas clause in this chapter law states:

WHEREAS, the Legislature intends for the following legislation to strictly effect a technical reorganization of chapter 985, Florida Statutes, without any substantive change to its contents, for the purpose of simplifying the chapter’s presentation and providing greater clarity for its users.

Id. The amendment divided Chapter 985 into parts organized in chronological order — tracing the procedural progress of a juvenile delinquency case — and was intended to make Chapter 985 easier to follow. The 2006 amendment, which moved the provisions dealing with postcommitment detention of low and moderate risk juveniles pending placement to their own subdivisions, omitted the term “care” from the “detention care” previously in the first sentence. While the restructuring did not change the statute substantively, the manner in which the statute was restructured, and the omission of the legal term “detention care,” further evinces the intent of this subdivision. The first sentence limits “detention” in the ordinary sense, the physical holding of custody of the juvenile, in other words secure, not home detention which is non-restrictive.

Under the present statute, all juveniles who are adjudicated and awaiting placement in a residential commitment program must be placed in some form of detention care. § 985.27(1), Fla. Stat. (2011). The legislature intends that those who have been adjudicated delinquent and are pending placement in a moderate risk residential program be supervised in some fashion, not released without restrictions after five days.

      . The petition does not provide the offense dates. Chapter 2011-2, Laws of Florida, which adopts the 2011 Florida Statutes, states that it becomes “effective immediately upon publication.'' Having contacted the Division of Statutory Revision, which publishes the Florida Statutes, we were unable to ascertain the precise date of written publication. In the digital age, “publication” as used in this section may refer to electronic publication of the statutes on Florida’s "Online Sunshine” website. Two of the probation violation cases have 2010 case numbers. The bill adopting the 2011 Florida Statutes was approved by the Governor on March 25, 2011, and the Florida Senate’s website lists the effective date as July 6, 2011. Despite the "upon publication" language, courts have construed the reenactment act as effective on the date on which the act became law. Envntl. Confederation of Sw. Fla., Inc. v. State, 852 So.2d 349, 350 (Fla. 1st DCA 2003).
      No changes were made to the relevant statutes during the 2010 or 2011 legislative sessions; the 2009, 2010, and 2011 versions are identical. For ease in reference, we will cite to the 2011 version of the Florida Statutes. Cf. E.A.R. v. State, 4 So.3d 614, 616 n. 1 (Fla.2009) (noting that this court had cited the latest version of the statute at issue, which was identical, but not the version in effect at the time of the offense).

      . The attached appendix discusses the history of post-commitment detention.

      . The May 20, 1996 Final Bill Analysis & Economic Impact Statement for SB 792, which incorporated CS/HB 1441, recognized that, under the law as it existed at the time, "after entry of an order of adjudication, children committed to low or moderate risk residential programs may not be held in secure detention for longer than 15 days while awaiting placement.” Id. at 8. Nothing in the analysis suggests that the 1996 amendment was intended to limit home or nonsecure detention.

      . Chapter 97-238, Laws of Florida, created Chapter 985, Florida Statutes, and renumbered the section at issue without substantial modification.

      . In 2005, the legislature created the "minimum-risk nonresidential” level of commitment — which is not addressed in the postcom-mitment detention section. Ch. 2005-263, § 4, Laws of Fla.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Tilford BAYNHAM, Appellee.
    No. 4D10-1781.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals the trial court’s order discharging appellee from charges of delivery of cocaine based upon speedy trial violations. The court found that the defendant’s earlier stop for a bicycle violation was part of the same criminal episode as the delivery of cocaine. Because we find that the two charges arose out of two separate incidents for purposes of speedy trial calculation, we reverse.

The Broward County Sheriffs Office was running a five-month undercover drug operation. A detective working undercover at the time of the first incident met a man on a bicycle, and the two discussed and conducted a sale of $20 worth of crack cocaine. The detective did not arrest the man at the time because of his undercover status, but he did radio nearby detectives, describing the man.

Deputy O’Brien and Detective Thompson were stationed together and heard the radio report. Within half an hour, they came into contact with appellee when they stopped appellee for riding a bike without a light, “subsequent to an ongoing narcotics operation within the area.” Deputy O’Brien stated that he “had recognized the individual from the description given and had reason to stop him.” The stop occurred very close to the location of the drug transaction (“within two or three blocks”). The detectives attempted to ascertain appellee’s identity, but the name (“Tilford C. Baynham” or “Tilford F. Baynham”) and social security number given by the appellee did not produce any records at that time. Deputy O’Brien then took appellee into custody for using a false name and for a “bicycle violation,” but not for delivery of cocaine. Detective Thompson made a report listing charges only for using a false name and for the bicycle infraction.

The undercover detective arrived at the scene of the stop and identified the man as the same person who transacted drugs with him, approximately fifteen or twenty minutes earlier, though the detective did not participate in the arrest and appellee was not aware of his presence. Deputy O’Brien, who was monitoring the detective over radio, admitted that he otherwise would not have known the identity of the person in the cocaine delivery unless he had “seen that individual through [his] travels and further investigations after that date.”

Eventually, the state dropped the charges for the bike infraction and for providing false information. On March 24, 2009, exactly one year after the incident, the state filed an information against ap-pellee for delivery of cocaine. On December 19, 2009, appellee filed a motion for discharge on the basis of a speedy trial violation, and following a hearing on the matter, the trial court granted the motion to discharge, prompting this appeal.

While an appellate court will generally defer to the trial court’s factual findings, as long as they are supported by competent, substantial evidence, Jeantilus v. State, 944 So.2d 500, 501 (Fla. 4th DCA 2006) (citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957)), the interpretation of the rules and procedures is the subject of de novo i’eview. See State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010).

Rule 3.191, Florida Rules of Criminal Procedure, governs the speedy trial provisions in criminal trials, requiring that “every person charged with a crime shall be brought to trial within ... 175 days of arrest if the crime charged is a felony.” Fla. R.Crim. P. 3.191(a). “For purposes of this rule, a person is taken into custody .!. when the person is arrested as a result of the conduct or cHminal episode that gave rise to the crime charged.” Fla. R.Crim. P. 3.191(d) (emphasis added). In practice:

[T]he speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.

State v. Williams, 791 So.2d 1088, 1091 (Fla.2001).

In general, “[c]rimes are deemed to be part of the same criminal conduct so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.” Clevenger v. State, 967 So.2d 1039, 1041 (Fla. 5th DCA 2007). “[E]ven when the temporal separation is not significant, when different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts.” State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003) (citing Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981)). The conduct needs to be more than “merely related” — it should be “the same conduct.” Walker v. State, 390 So.2d 411, 412 (Fla. 4th DCA 1980).

This case is most similar to State v. Lynch, 445 So.2d 687 (Fla. 2d DCA 1984). In Lynch, plain-clothed officers observed the defendant sniff a substance in a container and suspected it might be cocaine. Id. at 688. The officers approached and identified themselves to the defendant, who then threw the bottle and shoved one officer backwards. Id. The defendant was arrested for battery of a police officer at that time, but not possession because the detective believed he lacked probable cause. Id. The bottle cap was located after the defendant’s arrest, and when lab results came back months later, the defendant was arrested for possession at that later date. Id. The trial court dismissed the possession charge for violation of speedy trial. Id. On appeal, the Second District, relying on the “same conduct” definition in Walker, reversed and held that “[t]he separate alleged offenses of possession of cocaine and battery of a law enforcement officer were related, to be sure, but they were not the result of the same conduct or episode.” Id. at 690.

Appellee relies heavily on Deiches v. Kaney, 375 So.2d 584 (Fla. 5th DCA 1979). In Deiches, officers were advised by radio that there was a person trying to pass forged prescriptions at a local drug store. Id. at 585. When officers arrived, the defendant was leaving and sped off in his car, only to hit a dead end. Id. The officer arrested the defendant for loitering and prowling, but not for prescription forgery. Id. On appeal, the Fifth District found that these two charges arose from the same criminal episode, since “[t]he officers pursued the defendant from the scene of [the prescription forgery] crime and might well have arrested him for the crime when they trapped him in the dead-end alley.” Id.

We agree, however, with the Second District’s comment in Lynch, questioning Deiches for being “overly broad and ... easily susceptible of inconsistent applications,” in part “because it suggests that a charge may be dismissed under Rule 3.191 merely because it is related to another charge which occurred in the same general vicinity during the same general time frame.” Lynch, 445 So.2d at 690. Moreover, Deiches is inconsistent with the premise in Walker that the conduct needs to be more than merely related, but rather should be the “same conduct.” Walker, 390 So.2d at 412.

Here, the trial court misapplied the “criminal episode” standard of Rule 3.191 by placing a great emphasis on the ongoing investigation of the police officers, rather than the actions of the appellee. As noted by Judge Hurley’s dissent in Williams v. State, 409 So.2d 253, 255 (Fla. 4th DCA 1982) (Hurley, J., dissenting), writing on criminal episodes for purposes of severance of charges for trial (emphasis added), “[w]hether crimes form part of a criminal episode depends on the activities of the defendant, not the activities of the police investigating the defendant.” We agree with Judge Hurley’s observation and apply it to the analysis of criminal episode for purposes of the speedy trial rule.

The act of selling crack cocaine and the act of riding a bike without a light or the act of giving a false name to a police officer are separate acts, and, under the standards of both Hanna and Walker, the initial criminal charges are based on separate conduct from the crack cocaine charge. We thus reverse the trial court’s discharge of appellee for a speedy trial violation and remand for reinstatement of the charge.

Reversed and remanded.

DAMOORGIAN and GERBER, JJ„ concur.

      . We receded from Williams in Dupree v. State, 705 So.2d 90 (Fla. 4th DCA 1998), and aligned ourselves with Judge Hurley’s dissent. Our sister court in Pittman v. State, 693 So.2d 1133 (Fla. 1st DCA 1997), has likewise adopted the rationale of Judge Hurley's dissent.


author: PER CURIAM.

text:
    Barbara BATES and Susan Michaels, Appellants, v. HARBOR COMMUNITIES, LLC, Appellee.
    No. 4D11-953.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Rehearing Denied Nov. 18, 2011.
    W. Trent Steele of the Law Offices of W. Trent Steele, Hobe Sound, for appellants.
    R. Bowen Gillespie of Gillespie & Allison, P.A., Boca Raton, for appellee.
   PER CURIAM.

Dismissed. See Taggart v. Morgan, 943 So.2d 250 (Fla. 3d DCA 2006).

MAY, C.J., STEVENSON and CIKLIN, JJ., concur.


text:
    Anthony R. WITKIEWICZ and Kathy L. Witkiewicz, Appellants, v. ACANDS, INC., Flowserve Corporation, f/k/a Durametallic, Inc., and Certainteed Corporation, Appellees.
    No. 4D08-1170.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Melissa Damian Visconti, David A. Jag-olinzer, and Case A. Dam of The Ferraro Law Firm, Miami, for appellant.
    Evelyn F. Davis of Hawkins Parnell Thackston & Young LLP, Atlanta, Georgia, for appellee Bayer CropScience, Inc., f/k/a Amchem Products, Inc., CertainTeed Corporation, and Flowserve Corporation, f/k/a Durametallic, Inc.
    Gary L. Sasso, Matthew J. Conigliaro, and Christine R. Davis of Carlton Fields, P.A., Tampa, for appellees.
    Michael R. Holt of Rumberger, Kirk & Caldwell, Miami, for appellees John Crane, Inc. and Weil-McLain Company.
   PER CURIAM.

The Appellants with and on behalf of thirty-five other plaintiffs filed thirty-six appeals of trial court orders dismissing their cases based on their failure to satisfy the requirements of the Asbestos and Silica Compensation Fairness Act (“ASCFA”), section 774.201, Florida Statutes (2005). These appeals had been stayed pending the Supreme Court’s review of Williams v. American Optical Corp., 985 So.2d 23 (Fla. 4th DCA 2008).

On July 8, 2011, the Florida Supreme Court issued its opinion, affirming our decision in Williams. American Optical Corp. v. Spiewak, 73 So.3d 120, 2011 WL 2652189 (Fla.2011). We lifted the stay. On August 29, 2011, the Appellants filed a motion to quash the trial court orders and to remand this case to the trial court. The Appellees filed a response, agreeing to the motion with the exception of six of the cases, which had been voluntarily dismissed.

We therefore grant the motion except as to cases 08-1175, 08-1177, 08-1178, 08-1190, 08-1239, and 08-1244, which can be dismissed for lack of jurisdiction because of the previously filed voluntary dismissals in the trial court. The orders of dismissal are quashed and the trial court is directed to apply American Optical Corp. v. Spiewak, 73 So.3d 120, 2011 WL 2652189 (Fla.2011).

Reversed and Remanded.

MAY, C.J., HAZOURI and LEVINE, JJ., concur.

APPENDIX

Case Style: ANTHONY R. WITKIEWICZ and KATHY L. WITKIEWICZ v. ACANDS, INC., FLOWSERVE CORPORATION, f/k/a DURAMETALLIC, INC., CERTAINTEED CORPORATION, Case No. 4D08-1170.

Additional Case Nos.: 4D08-1175, 4D08-1176, 4D08-1177, 4D08-1178, 4D08-1179, 4D08-1181, 4D08-1183, 4D08-1184, 4D08-1187, 4D08-1189, 4D08-1190, 4D08-1195, 4D08-1198, 4D08-1200, 4D08-1202, 4D08-1203, 4D08-1204, 4D08-1210, 4D08-1215, 4D08-1221, 4D08-1232, 4D08-1234, 4D08-1235, 4D08-1236, 4D08-1237, 4D08-1238, 4D08-1239, 4D08-1240, 4D08-1241, 4D08-1242, 4D08-1243, 4D08-1244, 4D08-1245, 4D08-1246, and 4D08-1248.

Additional Appellants: RONALD STOR-DAHL and ELIZABETH STORDAHL, L.T. Case No. 99-10655 AF; ORVILLE R. RAFFIELD and ELEANA RAF-FIELD, his wife, L.T. Case No. 00-1634 AF; WILLIAM McCARLEY, Case No. 99-7839 AF; CLAXTON REESE, L.T. Case No. 99-1016 AF; ARCHIE YOUNG and ALICE YOUNG, his wife, L.T. Case No. 04-1885 AF; EARL WITT and VIVIAN WITT, his wife, L.T. Case No. 04-1855 AF; RUBY SMITH, as Personal Representative of the Estate of Lester Smith, L.T. Case No. 99-865 AF; RICHARD ROWELL, L.T. Case No. 03-8802 AF; ARTHUR JONES and ISABELLE JONES, his wife, L.T. Case No. 99-826 AF; CHARLES X. MARIANI and ANN MARIANI, his wife, L.T. Case No. GO-4898 AF; FREDDIE PREYER and FRANCES PREYER, Case No. 99-1081 AF; ALBERT WILLIAMS and DOROTHY WILLIAMS, his wife, Case No. 04-1842 AF; JOSEPH W. STEPHENS and DEREMA A. STEPHENS, L.T. Case No. 04-4238 AF; HARRISON SIMMONS and PATRICIA A. SIMMONS, L.T. Case No. 04-2040 AF; DOUGLAS McKENZIE and MARGARET McKENZIE, his wife, L.T. Case No. 03-9406 AF; MORRIS D. MAR-BUT, Case No. 04-3946 AF; GREGORY LEWITZKE and BONNIE LEWITZKE, his wife, L.T. Case No. 03-9284 AF; WILLIAM E. KELBY and LINDA L. KEL-BY, his wife, L.T. Case No. 03-8934 AF; JOHN M. HURLEY and JACQUELINA HURLEY, his wife, L.T. Case No. 502003CA009419XXASAF; PAUL JORIS-SEN and DIANA JORISSEN, his wife, L.T. Case No. 04-4015 AF; GEORGE JACKSON and CORNELIA JACKSON, his wife, L.T. Case No. 04-2066 AF; GERALD GURKA, L.T. Case No. 502004CA002029XXXXMB; GUY D. HENTON and NANNETTE HENTON, his wife, L.T. Case No. 502003CA009304XXASAF; CHARLES H. HOLCOMB and ELSIE M. HOLCOMB, Case No. 502003CA009320XXASAF; WILLIAM J. GRAHAM and JOAN GRAHAM, his wife, L.T. Case No. 99-8389 AF; ERNEST GRANT and IRENE GRANT, his wife, L.T. Case No. 03-11275 AF; CALVIN GARNER and SHIRLEY GARNER, his wife, L.T. Case No. 03-9471 AF; ALBERT FECTEAU and JUNE FEC-TEAU, his wife, L.T. Case No. 99-957 AF; THOMAS COLLINS, L.T. Case No. 04-1867 AF; CHARLES A. CONRAD, L.T. Case No. 502003CA009358XXASAF; WALLACE CHANEY, L.T. Case No. 04-2051 AF; WESLEY CARLTON BROWN and MARGARET J. BROWN, his wife, L.T. Case No. 03-9268 AF; EARL BRANDT, L.T. Case No. 99-973 AF; FREDERICK BEELEY and BEATRICE BEELEY, Case No. 00-5621 AF; ROBERT M. ANDERSON and MARY ANN ANDERSON, his wife, Case No. 04-3934 AF.

Additional appellees: BAYER CROP-SCIENCE, INC., f/k/a Amchem Products, Inc., AMERICAN OPTICAL CORPORATION, JOHN CRANE, INC., and WEIL-McLAIN COMPANY.


text:
    Dentario WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3040.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Demario White, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has filed a motion seeking clarification of his sentence, which this Court will treat as a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant argues that the sentencing court did not impose two years of probation to follow the 41.1 months of incarceration that both the appellant and the court agree was to be imposed. The lower court has rendered an order which states that in March 2010 when the court sentenced the appellant it did impose two years of probation to follow the 41.1 months of imprisonment. However, the court has not attached either the portion of the sentencing hearing transcript or the judgment and sentence, or any other portion of the record, which conclusively refutes the appellant’s claim.

We therefore reverse and remand for the trial court to either attach documentation conclusively refuting the appellant’s claim or to grant him relief. See, e.g., Moore v. State, 17 So.3d 878 (Fla. 1st DCA 2009) (citing Corp v. State, 698 So.2d 1349 (Fla. 1st DCA 1997) (‘“when denying a cognizable 3.800(a) claim, the trial court must attach portions of the record conclusively refuting that claim’ ”)).

REVERSED AND REMANDED.

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


text:
    Delmart E.J.M. VREELAND, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1880.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Delmart E.J.M. Vreeland, II, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The order of the circuit court denying appellant’s motion seeking the appointment of counsel for postconviction purposes is not among the class of orders appealable by a defendant pursuant to Florida Rule of Appellate Procedure 9.140(b)(1). Accordingly, the appeal is dismissed for lack of jurisdiction. This disposition is without prejudice, however, to appellant’s right to file a proper petition for writ of mandamus seeking to compel a ruling by the circuit court on appellant’s pending motion(s) requesting that he be granted relief from his conviction.

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


text:
    Temika Lashay JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1106.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Michael HOGG, Appellant, v. ARENA SPORTS CAFE, Appellee.
    No. 5D10-2163.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    David W. Glasser, of the Law Office of David W. Glasser, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363 (Fla. 5th DCA 1995) (“[Wjhere the thrust of the argument is fact findings made by the referee, the appellant’s failure to include a copy of the transcript, as part of the record on appeal, is fatal.”) (citation omitted).

PALMER LAWSON and JACOBUS, JJ., concur.


text:
    Tomasita D. CROWELL, Appellant, v. Todd C. CROWELL, Appellee.
    No. 5D10-2198.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Ricardo L. Carmona of The Carmona Law firm, P.A., Maitland, for Appellant.
    John A. Baldwin, of Baldwin & Morrison, P.A., Fern Park, for Appellee.
   PER CURIAM.

Tomasita Crowell, the former wife, appeals from an order dismissing her supplemental petition for modification that was entered at the conclusion of opening statements. We reverse. The former wife’s petition alleged sufficient grounds to support a modification as to child support, time-sharing schedule, and parental responsibility for decisions regarding the minor child’s healthcare. Therefore she should have been afforded the opportunity to try to prove her case.

However, we dismiss the former wife’s appeal of the trial court’s order awarding attorney’s fees to the former husband. Because the trial court only determined entitlement and did not determine the amount of fees, this issue is not ripe for appellate consideration. Revier v. Revier, 45 So.3d 570, 571 (Fla. 4th DCA 2010).

REVERSED and REMANDED in part; DISMISSED in part.

GRIFFIN, TORPY and EVANDER, JJ., concur.


author: TAYLOR, J.

text:
    Angelia Evette HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2427.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Philip J. Massa, Director, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

The defendant, Angelia Harris, appeals her conviction for possession of cocaine with intent to sell within 1,000 feet of a park. Because there was insufficient circumstantial evidence of her intent to sell, we reverse the conviction and remand for entry of a judgment of conviction for possession of cocaine.

At trial, a police officer testified that shortly before noon on August 19, 2007, he was on foot patrol when he entered a recreational park owned by the City of Boynton Beach. There were about thirty people in the park. The officer saw the defendant holding a cell phone with one hand and dangling a clear sandwich bag containing “off color whitish looking pebbles” from her other hand. Based on the officer’s training and experience, he believed the pebbles to be crack cocaine.

As the officer approached the defendant in the park, someone loudly yelled “police.” The defendant turned, saw the officer in police uniform, abruptly closed the cell phone, and crumpled the bag into her fist. The defendant began turning away from him and shoving the bag down the front of her waistband. A female backup officer arrived and conducted a pat-down on the defendant. A bag containing about forty to fifty pieces of suspect rock cocaine was retrieved from the defendant. A forensic scientist later confirmed that the substance was cocaine and determined that the net weight of the substance was approximately five grams.

The officer opined based on his training and experience that the nearly fifty cocaine rocks found in the defendant’s possession were for sale to others. He testified that the distinction between personal use and intent to sell is based on both the amount of the drug in the person’s possession and the presence or absence of drug paraphernalia. Someone possessing crack cocaine for personal use “would have, say, two or three pieces of crack cocaine [and] would also have a crack pipe that would be for personal use, typically.” By contrast, someone with “in excess of 20, 30 or 50 rocks of crack cocaine without a device to ingest that crack cocaine would typically be associated with the sale of cocaine.” The officer testified that he did not find any drug paraphernalia on the defendant. He estimated that the crack cocaine in the defendant’s possession was worth $20 per rock.

The defendant’s motions for judgment of acquittal argued, in part, that the State failed to introduce sufficient evidence that the defendant intended to sell the cocaine. The trial court denied the motions for judgment of acquittal, and the jury found the defendant guilty of possession of cocaine with intent to sell within 1,000 feet of a park.

A de novo standard of review applies when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. (citations omitted). A more stringent standard of review applies, however, if the State’s evidence of guilt is wholly circumstantial. See State v. Law, 559 So.2d 187, 188 (Fla.1989). In drug prosecutions, where the only proof of intent to sell is circumstantial, such proof may support a conviction for possession with intent to sell only if it excludes every reasonable hypothesis that the defendant possessed the drugs for personal use. See Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002).

The quantity or packaging of drugs in a defendant’s possession may indicate an intent to sell. Valentin v. State, 974 So.2d 629, 630 (Fla. 4th DCA 2008). In considering what type of circumstantial evidence is necessary to prove a defendant’s intent to sell, a court may consider quantity and value to be sufficient when the quantity is substantial. Glenn v. State, 824 So.2d 1046, 1049 (Fla. 4th DCA 2002). But in cases where small amounts of narcotics are found, “courts generally require other proof of suspicious circumstances, drug paraphernalia available, or other evidence which circumstantially would indicate an intent to sell.” McCullough v. State, 541 So.2d 720, 721 (Fla. 4th DCA 1989).

The State’s evidence must therefore be inconsistent with the theory that the defendant possessed the cocaine “not for sale, but exclusively for his personal use.” Lesane v. State, 895 So.2d 1231, 1234 (Fla. 4th DCA 2005). For example, in McCullough, the defendant was in possession of 6.15 grams of cocaine rock, which was contained in a film canister and had a street value of $150 or more. 541 So.2d 720. Further, the officers never saw the defendant try to sell any cocaine and there was no evidence of any money on the defendant. Id. We explained that the prosecution offered no testimony to support the contention that this quantity was greater than an individual would possess for personal use; to the contrary, the lab technician’s testimony established that the amount of cocaine in the vial could be used continuously by one person in a matter of about a day. Id. at 721. We thus held that the circumstantial evidence presented by the state was not susceptible only of an inference that the cocaine was possessed with the intent to sell. Id.

Likewise, in Glenn, we reversed the defendant’s conviction for possession of cocaine with intent to deliver, holding that evidence of the defendant’s possession of fifty crack cocaine rocks weighing a total of four grams was insufficient to prove intent to sell. 824 So.2d at 1049-50. There, the defendant was standing alone near a convenience store and was not observed conducting any type of drug transaction. Id. at 1049. The only suspicious activity the officers observed was the defendant reaching into the bushes twice. Id. The defendant stated that he intended to smoke the crack cocaine. Id. Although the State presented testimony of an officer qualified as an expert in street level narcotics, the State never elicited any testimony from the officer that the drugs were to be sold, nor did the officer testify as to the packaging of the crack or whether the amount was consistent with personal use. Id.

Similarly, in Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002), the defendant was found with cocaine which weighed five grams and was packaged in six ring baggies contained within a larger baggie. The Second District reversed the defendant’s conviction for possession with intent to sell. Id. The court explained: “This quantity, even as packaged, was not so large as to imply an intent to sell without other evidence.” Id. (emphasis added). The court found it to be “equally plausible” that the defendant had purchased the six baggies of cocaine for his personal use, noting that individual packaging of similar amounts of cocaine had been deemed insufficient to show intent to sell in other reported cases. Id.

More recently, in Valentin, the defendant was charged with possession of cocaine with intent to sell within 1,000 feet of a publicly owned park in violation of section 893.13(l)(c), Florida Statutes. 974 So.2d at 629. The charge was based on the defendant’s possession of seventeen individual baggies with 8.3 grams of cocaine in them, which the officer testified had a street value of approximately $340. Id. at 631. Although the officer testified that this was consistent with an intent to sell, he also admitted that it could be for personal use. Id. Further, the officer did not find any money or drug paraphernalia on the defendant, and there were no other facts which would suggest an intent to sell. Id. Additionally, the officer did not see the defendant do anything to suggest an intent to sell in the park. Id. at 680. Accordingly, we explained: “Not only was the evidence insufficient to show an intent to sell generally, nothing would show that [the defendant] had an intent to sell within the park as required by the statute.” Id. (emphasis added); see also § 893.13(l)(e), Fla. Stat. (“[I]t is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell ... a controlled substance ... in, on, or within 1,000 feet of real property comprising a state, county, or municipal park, a community center, or a publicly owned recreational facility.”) (emphasis supplied).

Following Valentin, we reversed a defendant’s conviction for possession of marijuana with intent to sell within 1,000 feet of a school. See Alleyne v. State, 42 So.3d 948 (Fla. 4th DCA 2010). There, the defendant was found to be in possession of 18 individual plastic bags containing marijuana, with a total combined weight of less than twenty grams. We found that “packaging and weight of the drugs in this case is similar to that in Valentin, giving rise to similar conclusions about [the defendant's intent.” Id. at 950. In rejecting the State’s attempts to distinguish Valentin, we specifically discussed the significance of an officer’s “adamant” opinion that the defendant’s intent was to sell where this conclusion was unsupported by facts that would give it credence:

[W]hile the arresting officer in Valentin admitted the possibility that the recovered drugs could have been for personal use, one officer in this case was adamant in his opinion that Alleyne’s intent was to sell the drugs he possessed. Other than the manner in which the drugs were packaged, no other fact supported this conclusion. The officer’s opinion was unsupported by facts that would give it credence; Alleyne did nothing outside the convenience store before the police pulled up which indicated he was selling drugs. Neither the total amount of marijuana nor the amount of cash recovered was inconsistent with personal use. His flight from the police was as consistent with possession of illegal drugs as it was with the intent to sell them.

Id. at 951.

By contrast, other cases have found that an officer’s testimony was sufficient to present a jury question on the defendant’s intent to sell where the officer provided testimony that the packaging or method of storage was inconsistent with personal use. See, e.g., Richards v. State, 37 So.3d 925, 926-27 (Fla. 4th DCA 2010) (evidence sufficient to submit to jury the charge of possession of cocaine with intent to sell where defendant possessed a coin purse containing seven small plastic bags of white powdery substance, one of which tested positive for cocaine, and the officer testified that the defendant’s method of storage was inconsistent with personal use); Bedford v. State, 995 So.2d 1122, 1123 (Fla. 4th DCA 2008) (“As to inferring intent to sell, the circumstantial evidence observed by the officer, including the number of packages of drugs found, together with the officer’s testimony that the number and type of packaging was consistent with the sale of drugs, was sufficient to submit the issue of intent to the jury.”).

Although there is some tension between the cases discussed above, we find that the present case is more similar to Alleyne, Valentin, and Glenn and compels a similar result. Here, the evidence was insufficient to exclude a reasonable hypothesis that the crack cocaine was for personal use. Although the officer testified that the nearly fifty cocaine rocks found in the defendant’s possession were for sale to others, the officer’s opinion was unsupported by corroborating facts that would give it credence. The cocaine rocks were not individually packaged. There was no evidence that the defendant was carrying any money. Although there were people around, the officer did not observe the defendant attempting to sell the cocaine to anyone. Other than the amount of cocaine and the fact that the defendant did not possess a crack pipe, no other fact supported the officer’s conclusion. But courts have found similar amounts of cocaine to be consistent with a reasonable hypothesis of personal use. See, e.g., Glenn, 824 So.2d at 1049-50 (holding that evidence of the defendant’s possession of 50 crack cocaine rocks weighing a total of four grams was insufficient to prove intent to sell); McCullough, 541 So.2d at 720 (holding that possession of 6.15 grams of cocaine rock was insufficient to overcome reasonable hypothesis of personal use).

Likewise, the mere fact that the defendant did not possess a crack pipe at the time she was arrested does not exclude the reasonable hypothesis that the drugs were for personal use. See Lesane, 895 So.2d at 1238 (holding that evidence was insufficient to exclude a reasonable hypothesis that 20 cocaine rocks weighing 1.8 grams were for personal use, despite police testimony that no crack pipe was found on the defendant and that the amount of drugs was consistent with sale); see also Glenn, 824 So.2d at 1049-50 (stating that “the fact that no drug paraphernalia was found on appellant’s person was not necessarily evidence, as claimed by the state, which was inconsistent with appellant’s theory.”).

Because the State failed to rebut the reasonable hypothesis that the drugs were for the defendant’s personal use, the trial court should have granted a judgment of acquittal on the issue of intent to sell. We therefore reverse the defendant’s conviction for possession of cocaine with intent to sell within 1,000 feet of a park and remand for entry of judgment of conviction for simple possession of cocaine. On remand, the defendant shall be resentenced on the lesser charge of possession of cocaine.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.


author: POLEN, J.

text:
    STATE of Florida, Appellant, v. Andre HARGRETT, Appellee.
    No. 4D10-238.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellant.
    Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal and Civil Regional Counsel, West Palm Beach, for ap-pellee.
   POLEN, J.

The State appeals the order of the trial court, granting Hargrett’s motion to arrest judgment. We hold that the jury’s verdicts in this case are truly inconsistent and affirm the trial court’s order arresting judgment.

Hargrett was charged by information with second-degree felony murder, during the commission of an attempted armed burglary; attempted first-degree murder; and attempted armed burglary. The facts of this case can be summarized as follows: Hargrett alleged that he and his sister’s husband, Otis Edwards, went to Erick Es-quivel’s house on the night in question to buy marijuana from Esquivel’s roommate; however, Esquivel’s roommate was not at the home when Hargrett and Edwards arrived. Esquivel testified that Hargrett and Edwards knocked on his door; when Esquivel began to open the door, Hargrett and Edwards tried to force it open. After Esquivel managed to close and lock the door, Hargrett and Edwards retreated to the parking lot, where their car was parked. When Esquivel opened the door to investigate, Hargrett and Edwards shot at him. Esquivel testified that he shot back in self-defense. Hargrett was shot and Edwards was killed. Esquivel then called the police.

Hargrett requested the jury not be instructed as to any lesser-included offenses. During its deliberations, the jury sent out the following question: “If found not guilty of attempted armed burglary, can the defendant be found guilty of felony murder in the second degree?” The trial court told the jury to refer to the written instructions given to them.

The jury found Hargrett guilty of second-degree felony murder, as charged in the information; not guilty of attempted first-degree murder; and not guilty of attempted armed burglary. The trial court adjudicated Hargrett guilty in accordance with the verdict, and sentenced him to twenty-five years in prison, with a twenty-year mandatory minimum. The trial court then granted Hargrett’s motion for arrest of judgment, finding that the jury rendered inconsistent verdicts when it found him guilty of second-degree felony murder but acquitted him of the attempted armed burglary charge. This appeal followed.

The State argues that the trial court erred in finding that the jury’s verdict acquitting Hargrett of attempted armed burglary required that Hargrett’s conviction for second-degree felony murder be vacated as a “truly inconsistent” verdict. The State argues that under Pitts v. State, 425 So.2d 542 (Fla.1983), the occurrence of an attempted armed burglary is not a prerequisite to a finding of guilt on the second-degree felony murder charge; instead an attempted (unarmed) burglary is sufficient. While the jury made no explicit finding of an attempted (unarmed) burglary, the State argues that it is a logical and plausible inference that the jury found that Hargrett committed an attempted burglary. Thus, the State argues that the order must be reversed and the cause remanded for reinstatement of the judgment and sentence.

“An inconsistent verdicts claim presents a pure question of law and is reviewed de novo.” Brown v. State, 959 So.2d 218, 220 (Fla.2007) (citing Dial v. State, 922 So.2d 1018, 1020 (Fla. 4th DCA 2006)). “As a general rule, inconsistent jury verdicts are permitted in Florida.” Brown, 959 So.2d at 220 (citing Eaton v. State, 438 So.2d 822 (Fla.1983)). There is only one exception to this general rule: The “true” inconsistent verdict exception, which comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent. Id. “[T]rue inconsistent verdicts are ‘those in which an acquittal on one count negates a necessary element for conviction on another count.’ ” Id. (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983)). Consistent verdicts are required when “the underlying felony was a part of the crime charged — without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.” Id. at 220-21 (citing Eaton, 438 So.2d at 823).

In Brown, Brown was charged with armed robbery and first-degree felony (robbery) murder in the shooting death of a participant in a drug deal whose wallet the defendant and two co-perpetrators were attempting to steal. Brown, 959 So.2d at 219. As reflected in the jury verdict form, Brown was charged with two legally interlocking offenses: Count I included the charged offense of first-degree murder as well as the lesser included offenses of second-degree murder and manslaughter; Count II included the charged offense of armed robbery with a firearm as well as the lesser included offenses of robbery and petit theft. Id. Attempted robbery was not listed as a lesser included offense in Count II. Id. (emphasis in original).

The jury found Brown guilty of petit theft as a lesser included offense of the armed robbery charge and guilty of first-degree felony murder. Id. The trial court vacated Brown’s felony murder conviction as ‘“legally inconsistent’ with the theft conviction, on the theory that an acquittal of armed robbery, implied by the guilty verdict of the ‘lower’ offense of theft, precluded the finding that the defendant had committed that felony, as required for a felony murder conviction.” Id. at 220. On appeal, the Third District reversed and instructed the trial court to reinstate Brown’s first-degree felony murder conviction:

[Tjhere is no true legal inconsistency because of the rational possibility (which is, in fact, consistent with the evidence in this case) that the guilty verdict as to first degree felony murder was based on a finding that, as the felony statute provides and as the jury was instructed, the death occurred in the course of an attempted robbery, rather than a completed one. Because attempted robbery was not instructed upon as a lesser included offense of the robbery count, and was thus not rejected by the jury, the two verdicts logically can be reconciled, thus requiring reversal.

Id. On review, the supreme court quashed the decision of the Third District and held:

[I]n Mahaun and Redondo, this Court explained that convictions for lesser included misdemeanors of a separately charged underlying felony negate the essential underlying felony element of felony murder. In Mahaun, Patricia Mahaun was convicted of third-degree felony murder and misdemeanor culpable negligence. Mahaun, 377 So.2d at 1159. This Court stated that “Mrs. Ma-haun’s conviction for culpable negligence effectively holds her innocent of the aggravated child abuse charge.” And, “[b]ecause the aggravated child abuse felony was an essential element of the felony murder,” this Court vacated Mrs. Mahauris felony murder conviction. Id. at 1161. Similarly, in Redondo, the jury convicted Redondo of misdemeanor simple battery and possession of a firearm during the commission of a felony. Redondo, 403 So.2d at 955. This Court explained that “the jury in effect acquitted petitioner of the felonies of aggravated battery and attempted aggravated battery when it found [Redondo] guilty of the lesser included offense of simple battery, a misdemeanor.” Id. at 956. We held that Redondo could not be convicted of the possession count since “[t]he existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony.” Id.
Based upon the decisions in Mahaun and Redondo, the jury in Brown returned true inconsistent verdicts. The jury found Brown guilty of petit theft as a lesser included misdemeanor of the separately charged underlying felony and guilty of first-degree felony murder. By finding Brown guilty of a lesser included misdemeanor of the separately charged underlying felony, the jury effectively acquitted him of the essential felony element of first-degree felony murder. In other words, an essential element of felony murder was missing by virtue of the jury’s other verdict. Therefore, the verdicts for first-degree felony murder and petit theft are truly inconsistent.

Id. at 221. The court declined to uphold the verdicts based upon Pitts:

In Pitts, this Court upheld jury verdicts finding the defendant not guilty of aggravated battery and guilty of possession of a firearm during the commission of the aggravated battery. Id. at 548. We held that “the jury’s acquittal on the aggravated battery charge did not preclude its finding of guilt on the possession charge” since a finding of attempted aggravated battery would be sufficient to supply the felony element of the possession charge. Id. This Court then stated that “while the jury made no explicit finding of an attempted aggravated battery, it [was] a logical and plausible inference on their part based on the evidence before them.” Id. However, in Pitts, “the jury made no such affirmative finding that defendant was guilty of a lesser included offense of the crime of aggravated battery.” Id. at 544. We explained in Pitts that “[s]uch a finding would have brought [Pitts ] within the ambit of our holdings in Ma-haun and Redondo.” Id. Therefore, Pitts expressly explains that if the jury finds the defendant guilty of a lesser included offense of the separately charged underlying felony, Mahaun and Redondo apply and not Pitts. In this case, the jury in fact did make an affirmative finding that Brown was guilty of a lesser included offense of armed robbery, namely petit theft. Because the jury found Brown guilty of petit theft rather than simply acquitting him of armed robbery, this case falls within the ambit of our holdings in Mahaun and Redondo.

Id. at 221-22. The court further explained:

As the Third District observed, it is certainly possible that, despite the jury finding Brown guilty of petit theft in the separate offense, Brown’s jury based its verdict regarding felony murder on a finding of attempted robbery. This reasoning rests upon the fact that attempted robbery was included in the felony murder instruction as an alternative to armed robbery as the underlying felony but was not listed on the verdict form as a lesser included offense in the separate armed robbery count. Therefore, Brown’s jury was not given the opportunity to choose attempted robbery as a lesser included offense in count II. On the other hand, since the jury found Brown guilty of a lesser included misdemeanor of the separately charged underlying felony, it is also possible that the two verdicts are irreconcilable. If so, then Brown was wrongfully convicted of felony murder.

Id. at 222.

We hold that the jury’s verdicts in this case are truly inconsistent. Regarding the second-degree felony murder verdict (Count I), the jury found Hargrett guilty, specifically finding that Hargrett actually possessed and discharged a firearm. The jury made no finding with respect to an underlying felony in connection with Count I. In Count III, the jury found Hargrett not guilty of attempted armed burglary. We find that the logical inference to be drawn from these two verdicts is that Hargrett possessed and fired a gun but did not do so during the commission of an attempted armed burglary. Because the jury acquitted Hargrett of attempted armed burglary, while finding that he was in fact armed, we hold that the verdicts reflect that the jury found that Hargrett did not commit an attempted burglary. We find that the State’s “logical and plausible inference” argument (that the jury found that Hargrett committed an attempted burglary) lacks merit. Consequently, we affirm the trial court’s order arresting judgment.

Affirmed.

WARNER and GERBER, JJ., concur.

      . Mahaun v. State, 377 So.2d 1158 (Fla.1979).

      . Redondo v. State, 403 So.2d 954 (Fla.1981).


author: MARX, KRISTA, Associate Judge.

text:
    The MILLS CORPORATION, d/b/a The Broward Mall, Appellant, v. Maria AMATO and Frank Amato, Appellees.
    No. 4D10-2832.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    James P. Waczewski of Luks, Santaniel-lo, Perez, Petrillo, Gold & Jones, Tallahassee and Jack D. Luks of Luks, Santaniello, Perez, Petrillo, Gold & Jones, Fort Laud-erdale, for appellant.
    Mara Shlackman of Law Offices of Mara Shlackman, P.L., Fort Lauderdale, for ap-pellees.
   MARX, KRISTA, Associate Judge.

The Mills Corporation, Inc. (“The Mills”) challenges the trial court’s denial of its motion to set aside default judgment and argues the judgment is void due to improper service. We agree and reverse. Our ruling on this issue renders moot all other issues raised in this appeal.

Maria and Frank Amato, based upon a trip and fall accident at the Broward Mall, filed this personal injury action. On the date of the incident in August, 2005, the Broward Mall was owned and operated by a company that was a subsidiary of The Mills.

On May 4, 2007, Simon Property Group, Inc. (“Simon Group”) acquired The Mills and its subsidiaries, including the Broward Mall. On this same date, the CEO of The Mills was terminated from his position.

The Amatos filed their complaint on November 26, 2007 and attempted to effectuate service upon The Mills on January 5, 2008 by serving the former CEO at his home in Maryland. At that time, the former CEO no longer had any association with The Mills or Simon Group.

Records of the Florida Department of State, Division of Corporations, showed that on August 22, 2007, The Mills filed an “Application by Foreign Corporation for Withdrawal of Authority to Transact Business or Conduct Affairs in Florida.” That document provided, in pertinent part:

This corporation is no longer transacting business or conducting affairs within the State of Florida and hereby voluntarily surrenders its authority to transact business or conduct affairs in Florida.
This corporation revokes the authority of its registered agent in Florida to accept service on its behalf and appoints the Department of State as its agent for service of process based on a cause of action arising during the time it was authorized to transact business or conduct affairs in Florida.
The following is a current mailing address for the corporation:
225 W. Washington Street, P.O. Box 7033, Indianapolis, IN 46207-7033.

The principal address listed for The Mills was the same address as the corporate headquarters of Simon Group because at the time of the Amatos’ attempted service, Simon Group was the parent corporation of the Broward Mall.

The Mills failed to answer the complaint and the clerk of court entered a default. On September 22, 2008, after a jury trial in which The Mills did not participate, the trial court entered a default final judgment for damages. The Mills filed a motion to set aside default judgment, arguing that the judgment was void due to improper service. The trial court denied the motion. This appeal followed.

The standard of review for an order denying a motion to vacate a default judgment, where the motion is premised on the alleged insufficiency of service of process, is abuse of discretion. BoatFloat, LLC v. Cent. Transp. Int’l, Inc., 941 So.2d 1271, 1272 (Fla. 4th DCA 2006). In evaluating whether a trial court abused its discretion, the appellate court often finds it determinative whether or not the trial court applied the law correctly, and thus the issue is reviewed de novo. See Woodward v. Berkery, 714 So.2d 1027, 1031 (Fla. 4th DCA 1998).

We recently explained, in Vidal v. SunTrust Bank, 41 So.3d 401 (Fla. 4th DCA 2010):

[sjtrict compliance with the statutory provisions governing service of process is required in order to obtain jurisdiction over a party. See Schupak v. Sutton Hill Assocs., 710 So.2d 707, 708 (Fla. 4th DCA 1998); Sierra Holding, Inc. v. Inn Keepers Supply Co., 464 So.2d 652, 654 (Fla. 4th DCA 1985); Baraban v. Sussman, 439 So.2d 1046, 1047 (Fla. 4th DCA 1983). This strict observance is required in order to assure that a defendant receives notice of the proceedings filed. See Electro Eng’g Products. Co., Inc. v. Lewis, 352 So.2d 862, 865 (Fla. 1977). As we noted in Haney v. Olin Corp., 245 So.2d 671, 672 (Fla. 4th DCA 1971), “The major purpose of the constitutional provision which guarantees ‘due process’ is to make certain that when a person is sued he has notice of the suit and an opportunity to defend.”

41 So.3d at 402-03.

Although there was no evidence to support the contention that The Mills automatically became, a dissolved corporation upon its acquisition by Simon Group, it is apparent from the record that the parties and the trial court acted under the assumption that The Mills was a dissolved corporation at the time of service. Further, the corporate records filed with the Florida Division of Corporations gave sufficient notice to the Amatos that The Mills had withdrawn its authority to transact business in Florida, and had appointed the Secretary of State as its agent for service of process. Therefore, regardless of whether The Mills was a dissolved corporation on the date of attempted service, the proper method of service in this case is dictated by section 48.081, Fla. Stat. (2007).

Section 48.101, Florida Statutes (2007), titled “Service on dissolved corporation,” provides that process shall be served in accordance with Section 48.081, Florida Statutes (2007). Section 48.081, titled “Service on corporation,” provides, in pertinent part:

(1)Process against any private corporation, domestic or foreign, may be served:
(a) On the president or vice president, or other head of the corporation;
(b) In the absence of any person described in paragraph (a), on the cashier, treasurer, secretary, or general manager;
(c) In the absence of any person described in paragraph (a) or paragraph (b), on any director; or
(d) In the absence of any person described in paragraph (a), paragraph (b), or paragraph (c), on any officer or business agent residing in the same state.
(2) If a foreign corporation has none of the foregoing officer or agents in this state, service may be made on any agent transacting business for it in this state.
(3)(a) As an alternative to all of the foregoing, process may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent.

Section 48.081 does not authorize service on former presidents, officers, or directors, etc., of a dissolved or existing corporation. Florida courts have interpreted the above statute, according to its plain language, as authorizing service under subsections (1) and (2) only upon persons who were serving in such positions at the time of service. Int’l Steel Truss Co. v. Artec Grp., Inc., 824 So.2d 340, 342 (Fla. 2d DCA 2002). The Second District specifically explained:

[sjervice on a corporation may be accomplished by serving a person listed in section 48.081(1) only if the person legally fills the position described at the time of such service. See ARW Exploration Corp. v. Kartsonis, 576 So.2d 1369, 1370 (Fla. 1st DCA 1991) (holding jurisdiction over corporation was not obtained by serving person who had resigned as corporation’s vice president and left his employment with it prior to service); Sunrise Beach, Inc. v. Phillips, 181 So.2d 169, 170 (Fla. 2d DCA 1965) (same).

824 So.2d at 342—43.

The records filed with the Florida Department of State demonstrate that The Mills had merged into Simon Group at the time the suit was filed and service of the complaint was attempted. Service upon The Mills could have been perfected by serving the Secretary of State and then mailing the suit papers to Simon Group’s corporate headquarters. Alternatively, the Amatos could have served individuals in described positions enumerated in the statute who were presently serving in that capacity for Simon Group. The purpose of service of process — to be certain that a person or entity being sued has notice of that suit and an opportunity to defend— was not accomplished by serving the former CEO who no longer had any affiliation with either The Mills or Simon Group.

In sum, the trial court did not properly acquire jurisdiction over The Mills in compliance with section 48.081. In this case, service upon the former CEO cannot be deemed, as a matter of law, as service upon The Mills. The trial court erred in not setting aside the final default judgment as void. We reverse and remand for proceedings consistent with this ruling.

DAMOORGIAN and GERBER, JJ., concur.


text:
    William J. HASEY Jr., Appellant, v. Mary Jo METZGER, Appellee.
    No. 4D10-3356.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Alison C. Guerino and Jeff M. Brown of Lavalle, Brown and Ronan, P.A., Boca Ra-ton, for appellant.
    Mary Jo Metzger, Pompano Beach, pro se.
   PER CURIAM.

Appellant timely appeals the summary denial of his motion for costs following appellee’s voluntary dismissal of her petition for injunction against domestic violence. This case is indistinguishable from Harrison v. Francisco, 884 So.2d 239 (Fla. 2d DCA 2004), where the court reversed for an evidentiary hearing following the summary denial of appellant’s motion for costs. The cases cited by appellee are distinguishable, as they address an award of attorney’s fees, which is not the subject of this appeal. Accordingly, we reverse and remand with instructions for the trial court to hold an evidentiary hearing on appellant’s motion for costs.

Reversed and remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    WILLOW WOOD MID-RISE CONDOMINIUM I ASSOCIATION, INC., Appellant, v. VANCO CONSTRUCTION & SUPPLY, INC., Appellee.
    No. 4D09-174.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.

      Ronald E. D’Anna of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellant.
    Scott J. Topolski and Sally Still of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellee.
   PER CURIAM.

We find the notice of appeal filed in this case on January 15, 2009, directed to the trial court’s order of December 16, 2008, denying appellant’s renewed motion for rehearing was timely, and was in essence directed to the final judgment entered October 20, 2008.

On the merits, we find no error in the trial court’s rulings, and affirm.

Affirmed.

MAY, C.J., WARNER and POLEN, JJ., concur.


text:
    Arthur SOSNOWSKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-768.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Barbara J. Scheffer, Palm Beach Gardens, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We sua sponte redesignate this case as an appeal from ah order denying a rule 3.850 motion, reverse appellant’s sentence and remand for resentencing. After appellant was convicted by a jury in another case of attempted second degree murder, he entered into a plea agreement in this case and was sentenced to 10 years in prison to run concurrently with his sentence in the attempted murder case. At sentencing in this case, the attempted murder conviction was included in the scoresheet computation. Later, the conviction in the second degree murder case was reversed on appeal. See Sosnowsky v. State, 989 So.2d 686 (Fla. 4th DCA 2008). When that case was remanded to the circuit court, the state nolle prossed the charges. Because appellant was sentenced concurrently with the sentence in the reversed case, and because the record does not “conclusively demonstrate that appellant would have received the same sentence using a corrected scoresheet,” we reverse the order denying postconviction relief and remand for resentencing. President v. State, — So.3d —, 2011 WL 2462644 (Fla. 4th DCA 2011).

We have fully considered the other points raised on appeal and hold that appellant is not entitled to withdraw his guilty plea in this case.

POLEN, GROSS and CONNER, JJ., concur.