text:
    Zavon PALMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1482.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, for Appellant.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, for Appellee.
   PER CURIAM.

Appellant, Zavon Palmore, is challenging the trial court’s determination that he willfully violated the terms of his plea agreement. Because the evidence was insufficient to establish Appellant willfully failed to appear for sentencing, we reverse.

Facts

The State charged Appellant-with possession of crack cocaine, use of a firearm in the commission of a felony, and misdemeanor possession of marijuana. In exchange for Appellant’s guilty plea, the State agreed to seek a sentence that included a withhold of adjudication, 36 months probation, and 60 days incarceration in county jail. During a plea hearing, the trial court made its acceptance of the plea agreement contingent on Appellant’s agreement to appear at a January 11, 2011, sentencing hearing.

On January 9, 2011, Appellant was arrested in a nearby county for committing new, unrelated charges. Because of his arrest and subsequent incarceration, he was unable to attend the January 11, 2011, sentencing hearing. At the rescheduled hearing, the trial court determined Appellant was no longer entitled to the sentence proposed in his negotiated plea and sentenced him to 18 months in prison. The court based the sentence on “the fact that [Appellant] failed to appear for sentencing.” The only evidence the court heard regarding Appellant’s January arrest was a statement from the State, indicating it had contacted the nearby county’s jail “and received information that on January the 9th, [Appellant] was booked into the [county jail] and was charged with burglary and grand theft.”

Analysis

“Where timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)). It has been repeatedly held that it is crucial a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. See Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008).

Here, the trial court was required to make a factual determination as to whether Appellant’s failure to appear was willful. See Id. (concluding a circuit court cannot declare that a defendant willfully violated the terms of his plea agreement in the absence of competent, substantial evidence to support such a finding); see also Walker v. State, 599 So.2d 233, 234 (Fla. 3d DCA 1992) (reversing a trial court’s finding that a defendant violated the terms of his plea agreement because insufficient evidence was presented to support the finding). Instead, the court merely indicated it was sentencing Appellant to a longer prison term “[b]ased on the fact that [he] failed to appear for sentencing.”

Accordingly, we reverse and remand for the trial court to make a factual determination as to whether Appellant’s failure to appear was willful.

REVERSED.

HAWKES, CLARK, and SWANSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jet VELOSO, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and DSW Shoe Warehouse, Inc., Appellees.
    No. 1D11-3236.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Jet Veloso, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Juandalyn PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-148.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas D. Winokur and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The State has properly conceded that the trial court lacked jurisdiction in Leon Circuit Court Cases 2005-CF-16 and 2006-CF-2734 to impose further criminal punishment based on a finding of violation of probation, where the period of probation had expired before the appellant committed the 2009 and 2010 acts on which the Department of Corrections based its affidavits alleging violations of probation. The trial court erred in finding a violation of probation and in denying the motions to dismiss the untimely filed affidavits. On this concession of error, we VACATE the judgment and sentence and REMAND to the trial court with instructions to enter a dismissal order pursuant to the reasoning in Francois v. State, 695 So.2d 695 (Fla.1997); State v. Summers, 642 So.2d 742 (Fla.1994); and Gonzalez-Ramos v. State, 46 So.3d 67, 69-70 (Fla. 5th DCA 2010) (reversing order finding the defendant in violation of probation and remanding with instructions to the trial court to vacate the prison sentence).

BENTON, C.J., ROBERTS and RAY, JJ., concur.


text:
    POE & ASSOCIATES, LLC, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 1D11-1664.
    District Court of Appeal of Florida, First District.
    Aug. 16, 2011.
    Thomas K. Morrison of Morrison & Mills, P.A., Tampa, for Appellant.
    David S. Hendrix of Gray Robinson, P.A., Tampa, for Appellee.
   PER CURIAM.

DISMISSED. See generally Jensen v. Whetstine, 985 So.2d 1218, 1220-1221 (Fla. 1st DCA 2008).

BENTON, C.J., LEWIS and ROBERTS, JJ., concur.


author: LEVINE, J.

text:
    I-NET TECHNOLOGIES, INC., Appellant, v. Andre SALAZAR, Appellee.
    No. 4D11-40.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.

      Peter J. Malecki of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for appellant.
    Roderick V. Hannah of Roderick V. Hannah, P.A., Davie, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in denying appellant’s motion to transfer due to improper venue. We find that the trial court should have granted appellant’s motion to transfer for improper venue, and we reverse.

In the present case, appellee filed a single-count complaint for breach of contract, alleging that appellant failed to pay appellee for wages and compensation due and owing to appellee. Appellee alleged that he had an employment agreement with appellant. Appellee worked out of his home, which was located in Broward County; he did not perform any services in Palm Beach County. When appellant refused to pay his wages, appellee filed a complaint for breach of contract in Bro-ward County.

Appellant disputed the propriety of Bro-ward County as a venue. Appellant contends there was no employment contract and that appellant maintains an office only in Palm Beach County. Appellant submitted an affidavit which also stated that ap-pellee was allowed to work out of his home for appellee’s convenience alone. Appellant further stated that it conducted business only in Palm Beach County and that it never sent any correspondence to appel-lee in Broward County. The trial court denied appellant’s motion to dismiss or transfer venue. This appeal ensues.

The standard of review for the denial of a motion to transfer venue “is whether the trial court’s factual determinations are supported by substantial, competent evidence or are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.” Vrchota Corp. v. Kelly, 42 So.3d 319, 321 (Fla. 4th DCA 2010). “A complaint is sufficient to allege venue, unless a defendant, by affidavit, challenges venue. Then, the burden shifts to the plaintiff to establish the propriety of the venue selected.” Id. In this case, appellant challenged appellee’s selection of Bro-ward County as the proper venue by filing an affidavit and shifting the burden back to appellee as to whether the venue was proper.

Section 47.051, Florida Statutes, provides that “[ajctions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.” Here, there is no property in litigation, and appellant’s office is located in Palm Beach County. The only remaining reason venue could be established in Broward County is if the cause of action accrued in Broward County-

Appellant contends that the cause of action in this case accrued in Palm Beach County. Significantly, appellant points out that the failure to send payment to appellee took place in Palm Beach County. Palm Beach County is where appellant has its office, and where it generates payment to appellee for all work performed.

In Precision Software, Inc. v. Gauthier, 605 So.2d 592 (Fla. 2d DCA 1992), a former employee filed a breach of an employment contract complaint in Hillsborough County, claiming monies owed for severance. The employee claimed that venue was proper in Hillsborough County because a debtor-creditor relationship existed between him and the employer, and in a debtor-creditor arrangement, venue is proper where the creditor resides. The employer argued that an employer-employee relationship is not a debtor-creditor relationship because the cause of action was for breach of contract, not a suit on a debt. The Second District determined that “[a] cause of action for breach of contract is said to have accrued in the county where the breach occurred. A breach is said to have occurred where failure of performance occurred.” Id. at 594 (citations omitted). In an employment contract dispute, the failure of performance occurs where the employer fails to issue payment of the employee’s salary. Id.

Similarly, in McCarroll v. Van Dyk, 8 So.3d 1256 (Fla. 4th DCA 2009), an employee who lived in Palm Beach County filed a complaint in Palm Beach County against a corporation, with its principal place of business in Broward County, for failure to pay the employee commission payments. The employee attempted to justify venue in Palm Beach County, by reliance on the “debtor-creditor venue rule, which provides that where payment of a debt is the performance called for by a contract, the residence of the payee is presumed to be the place of the required performance and thus where the cause of action accrues.” Id. at 1257. This court concluded that the employee “presented no contrary affidavits or record evidence” to dispute the employer’s sworn statements that the employee collected his salary in Broward County, making that county the place of required performance. Id. at 1258. Significantly, this court, relying on Gauthier, also concluded that “the debtor-creditor venue rule” was “inapplicable” since the cause of action arose “in an employment context.” Id.

Thus, under both McCarroll and Gauthier, the cause of action accrued in Palm Beach County, as appellant allegedly failed to issue payment for appellee’s services in that jurisdiction. Broward County is an improper venue for this action. Venue properly lies in Palm Beach County, so we reverse and remand with instructions for the trial court to transfer this action to the Fifteenth Judicial Circuit in and for Palm Beach County.

Reversed and remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Alternatively, appellee claims that the cause of action accrues where the payment for services under an employment contract was to be received, i.e., the employee’s residence. See Sagaz Indus., Inc. v. Martin, 706 So.2d 374 (Fla. 5th DCA 1998). However, the place of payment venue rule would be inapplicable where the damages sought, like in the present case, are “unliquidated and subject to proof.” Dep’t of Transp. v. Cone & Graham, Inc., 884 So.2d 224, 227 (Fla. 2d DCA 2004) (citation omitted). Damages are unliquidated when the complaint alleges only general damages without demanding a specific amount. Watson v. Internet Billing Co., 882 So.2d 533, 534 (Fla. 4th DCA 2004). Martin involved a former employee’s suit for a sum certain; this case does not.


author: POLEN, J.

text:
    Ami SHINITZKY, Appellant, v. Theresa L. SHINITZKY n/k/a Theresa Lawrence, Appellee.
    No. 4D10-137.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Robin Bresky, Boca Raton, for appellant.

      Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for appellee.
   POLEN, J.

Ami Shinitzky (Former Husband) appeals the trial court’s clarification order on his motion to obtain certain non-disbursed funds based on the Final Judgment of Dissolution of Marriage. This motion followed our remand in Shinitzky v. Shinitz-ky, 16 So.3d 168 (Fla. 4th DCA 2009) (,Shinitzky I), in which we affirmed the final judgment “in toto.” Former Husband argues that the trial court deviated from the final judgment, and thus erred by failing to comply with our mandate. We agree and reverse.

The marriage between Former Husband and Former Wife was dissolved by the Final Judgment entered by Judge Stephen Rapp (“original judge”) on November 20, 2007. In relevant part, the Final Judgment required Former Wife to pay Former Husband half the value of certain investment accounts. Former Wife moved for partial stay of the Final Judgment pending appeal to this court. The trial court denied Former Wife’s motion and granted Former Husband’s motion to enforce the Final Judgment by affixing Former Wife’s signature for the purpose of distribution of funds under Florida Rule of Civil Procedure 1.570(d). Former Wife appealed the trial court’s Final Judgment and Former Husband cross-appealed. This court issued a temporary stay until further order of the court and then extended the temporary stay until the appeal was final. Former Wife was not required to provide a supersedeas bond in connection with the stay order.

This court affirmed the Final Judgment and issued a mandate for the trial court to enforce the Final Judgment. Shinitzky I. Thereafter, Former Husband moved the trial court to determine the amount of funds due to him with interest and to require transfer of accounts to him in accordance with the Final Judgment. Judge Lewis (“successor judge”) granted Former Husband’s motion. The order requested that the financial institutions identified in the Final Judgment transfer the funds with interest to Former Husband and required Former Husband’s counsel to provide Former Wife with an accounting of the funds, including appreciation or depreciation. Former Husband filed a motion to obtain the remaining funds he was owed. A hearing was set on the motion.

At the hearing, Former Husband explained to the court that he was still owed funds from November 2007; thus, he should be entitled to interest for the amounts he did not receive. The court disagreed and ruled that he was not entitled to interest because this court’s issuance of Former Wife’s motion to stay without a supersedeas bond meant the distribution was in-kind. However, this was contrary to the Final Judgment which stated that an equalizing money payment was required.

The issues raised in Shinitzky I concerned the valuation and distribution of certain assets in the Final Judgment. 16 So.3d 168. This court “affirm[ed] the equitable distribution in toto because neither party ... established that the court abused its discretion in valuing or distributing any individual asset, in fashioning the overall scheme of distribution.” Id. at 169. This court primarily addressed whether efforts to recover Former Husband’s non-marital funds resulted in creation of a marital asset. We determined “that the evidence did not establish that marital labor and funds enhanced the asset to warrant the court’s apportionment of some of the settlement funds to Former Wife.” Id. at 171.

On remand, the trial court was to simply enforce the Final Judgment and, in its attempts to do so, it misinterpreted what this court intended. This court reviewed and affirmed the pre-Final Judgment valuation which required Former Wife to pay the equalizing amount of $193,479.50 to Former Husband, plus interest for the years she delayed disbursement. Id. at 170; see also Sheehan v. Sheehan, 943 So.2d 818, 823 (Fla. 4th DCA 2006) (providing that “the trial court has the discretion to award [a party] interest, accruing from entry of the final judgment of dissolution, on those sums that should have been distributed”). Even if Former Wife’s half of the funds diminished due to market conditions, she was still required to pay Former Husband one-half of the investments as of November 2007. If she was unable to pay that one-half from her portion of the funds, she was to use other funds to ensure he still received the same amount he was owed years ago.

The hearing excerpts show that the successor judge was mindful of her limitations when this court had affirmed on appeal the distribution of the Final Judgment. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla.1975) (“A trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so.”); Peterson v. Peterson, 882 So.2d 528, 530 (Fla. 4th DCA 2004) (“ ‘[0]nce the ... case was decided on appeal, the circuit court was bound by the decree as the law of the case and was required to perform the purely ministerial act of implementing the mandate.’ ”).

Despite the successor judge’s recognition of her inability to change the equitable distribution of the Final Judgment, when this court had affirmed it “in toto,” she conducted a hearing, took expert testimony regarding the valuation of the funds, and made significant changes in the terms of the Final Judgment and Enforcement order. Shinitzky I, 16 So.3d at 169. The original judge’s orders enforced the Final Judgment by affixing Former Wife’s signature under Florida Rule of Civil Procedure 1.570(d). The “equalizing payment” of $193,479.50 was derived from a second order which stated that after the transfer of the Former Husband’s half share of the investment funds, the Former Wife then was to pay him the equalizing sum of $193,479.50 from her half. This was to take place within five days from the date of that order, which was issued on December 19, 2007. The equalizing sum was based primarily on October 21, 2005 values used by the original judge.

The original judge’s order was affirmed by this court, but when the Final Judgment was to be enforced below, the order was deviated from in two respects: (1) under the Final Judgment, the valuation of the investment funds at issue primarily was from October 21, 2005, with appreciation as of November 30, 2007, not the November 19, 2009 hearing date; and (2) the equalizing sum of $193,479.50 was due under the original judge’s December 19, 2007 order within five days of that order.

This court reviews construction of a final judgment de novo. Roque v. Paskow, 812 So.2d 500, 503 (Fla. 4th DCA 2002). “A modification seeks to change the status quo and seeks a new benefit for one party,” while “a clarification does not seek to change rights and obligations but to make a judgment more clear and precise.” Id. The terms of the Final Judgment regarding the investment funds were misunderstood and counsel and experts misled the trial court as to the valuation of the funds. The hearing was a general airing of the views of the counsel, experts, and even Former Husband as to how the investment funds should be valued, rather than an adherence to the terms of the Final Judgment and Enforcement order. As noted above, it is clear that the successor judge modified the terms of the Final Judgment and Enforcement order as to the investment funds at issue in this appeal, which this court previously had affirmed.

Accordingly, we reverse the trial court’s order and remand the case with instructions for the court to effectuate Judge Rapp’s Final Judgment and Enforcement order regarding disbursement of the investment funds and equalizing payment to Former Husband precisely as written and affirmed by this court. The equalizing payment is to include interest from the date it was initially due.

Reversed and Remanded with Instructions.

WARNER and TAYLOR, JJ., concur.

      . The judge who entered the order on remand was not the same judge, Judge Stephen Rapp, who had entered the original final judgment.

      . Failure to require a bond does not have the effect of allowing a trial court to deviate from a mandate of the appellate court. See Greenbriar Condo. Ass’n v. Padgett, 583 So.2d 1100, 1102 (Fla. 4th DCA 1991). Posting of a bond merely results in an automatic stay, whereas the absence of a bond simply requires a party to show cause why the stay should be entered. Id. Thus, the fact that this court did not require a bond had no bearing on the language of its mandate and the trial court should have done on remand what this court ordered.


author: TAYLOR, J.

text:
    STATE ROAD 7 INVESTMENT CORP., Appellant, v. NATCAR LIMITED PARTNERSHIP, Lloyd Funding, Inc., City of Plantation, Florida, Best Bid Auto Auction, Inc., Imperial Motor Cars, Inc. and Mega Homes, LLC, Appellees.
    No. 4D09-442.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.

      Eric N. Assouline, Peter E. Berlowe and Glenn A. Saks of Assouline & Berlowe, P.A., Dania Beach, for appellant.
    Robert A. Plafsky of Robert A. Plafsky, P.A., Fort Lauderdale, for Appellee-Nat-car Limited Partnership.
   TAYLOR, J.

In this appeal from a final judgment of foreclosure, State Road 7 Investment Corp. argues that the trial court erred in: (1) granting judgment to appellee Ñatear Limited Partnership while a cross-claim between State Road 7 Investment Corp. and the City of Plantation concerning a lien was still pending; (2) entering summary judgment on a disputed amount of indebtedness on the note and mortgage; and (3) awarding attorney’s fees to Ñatear in the final judgment of foreclosure for litigating priority against the City of Plantation. We reverse as to the first two points raised by State Road 7, but affirm on the third.

The underlying proceedings began on February 13, 2004, when Ñatear Limited Partnership, et al. (Ñatear) filed a foreclosure action against property owner State Road 7 Investment Group (State Road) and the City of Plantation (City). The initial complaint alleged that State Road defaulted under the promissory note and mortgage by failing to pay the City’s code enforcement liens and owed $238,660.99. State Road’s mortgage specifically stated the following:

(3). PAYMENT OF TAXES, ASSESSMENTS AND ENCUMBRANCES: The Mortgagor shall pay all and singular the taxes, assessments, levies, liabilities, obligations, and encumbrances of every nature on the Property, each in accordance with its respective terms, conditions and requirements, pri- or to delinquency and provide proof of payment to Mortgagee prior to delinquency.
* * *
(7) FORECLOSURE OF LIEN: If foreclosure proceedings of any mortgage encumbering the Property or any lien on the Property of any kind should be instituted, the Mortgagee may, at Mortgagee’s option, immediately or thereafter declare this Mortgage and the indebtedness secured hereby due and payable.

Ñatear included the City in the suit because the City could “claim some, right, title or interest” in the mortgaged property by virtue of the City’s Supplemental Order/Claim of Lien, dated March 18, 2002 and recorded on May 1, 2002 in the Bro-ward County official records. The City filed a counterclaim against Ñatear and a cross-claim against State Road to foreclose its enforcement liens; it asserted that any interest of Ñatear was inferior to its code enforcement lien.

Pursuant to Florida Rule of Civil Procedure 1.160(g), State Road moved to file a counter cross-claim against the City. According to State Road, when it purchased the property from Ñatear, it was aware that- the property was encumbered by existing code violations, but it indemnified Ñatear “against any losses they may sustain because of the violation since Ñatear was notified as the owner of the property.” State Road complained, however, that it failed to receive notice of subsequent violations or the claim of lien filed on March 18, 2002; thus, it did not ascertain that there were fines and liens encumbering the property until a later date.

Ñatear filed a supplemental complaint alleging that State Road breached the mortgage when the City initiated foreclosure proceedings against State Road. In response, State Road denied all allegations “as to all counts contained in Plaintiffs Supplement to Complaint and demands strict proof thereof.” Later, Ñatear filed a Second Supplemental Complaint, alleging that State Road failed to pay the outstanding balance on all monies due on November 1, 2006, the maturity date. It further alleged that on that date State Road owed $220,922.49 on the principal of the note, plus interest. State Road filed an answer to Natcar’s Second Supplemental Complaint, denying “all allegations as to all counts contained in Plaintiffs Second Supplement to Complaint.... ”

On January 18, 2007, Ñatear and State Road entered into a Stipulation for Settlement, wherein they agreed that $220,992.49 was the principal due on the note. Ñatear agreed to forebear foreclosing on the property on the condition that State Road make progress payments, complete the work required by the City, and pay off the note within the specified time frames. The trial court entered an agreed order adopting the stipulation.

On January 24, 2007, the City filed an amended counterclaim and cross-claim to foreclose code enforcement liens on the mortgaged property, alleging that, pursuant to “Lien Case No. 4168-01-11, there is due and owing to the City of Plantation, the amount of $657,550.00.” On March 24, 2007, State Road answered the City’s amended cross-claim, denying all of the City’s allegations that it owed any damages on the disputed lien. State Road also asserted four affirmative defenses: (1) breach of contract, (2) setoff, (3) waiver, and (4) accord and satisfaction. Specifically, on the breach of contract allegation, State Road alleged:

On or before October 1, 2002, a settlement was reached between State Road 7 and City at which time the City agreed that the Settlement would be submitted to the City of Plantation Special Master for approval. State Road 7 made payments on the settlement agreement. City breached the settlement agreement by, among other things, failing to have the settlement approved by the City of Plantation Special Master, allowing the fines to continue to accumulate, failing to accept Site Plans that were substantially in compliance with the City’s codes, altering the requirements of the Site Plans and allowing the liens to remain encumbrances on the subject property. As a result of the City’s breach, State Road 7 has incurred damages substantially in excess of $15,000 ... the loss of the subject property based upon the instant action for foreclosure, loss of value of the property....

On August 28, 2008, Ñatear filed its Third Supplement to Complaint, alleging that State Road owed it the principal amount of $287,221.42, plus interest. Based on State Road’s response to the third supplemental complaint, which Ñat-ear contended did not deny the allegations raised in Plaintiffs third supplemental complaint, Ñatear moved for summary judgment against all defendants on November 4, 2008. Relying on its supporting affidavits, dated May 10, 2004, December 14, 2006, and November 8, 2008, Ñatear argued that there was no factual dispute that State Road owed the principal payment and interest on the note and mortgage.

In the November 3, 2008 affidavit, Marc Berson, the general partner of Ñatear, attested that on or about January 18, 2007, Ñatear and State Road entered into a stipulation extending the principal due date until January 18, 2008, and Ñatear later extended the date until July 18, 2008. Berson said that as of November 30, 2008, State Road failed to make payment and owed $287,221.42 due on the principal of the note, plus interest. In addition, Ber-son stated that the City of Plantation subordinated its purported priority lien to Ñatear by a letter agreement dated July 3, 2008. In the letter, Ñatear agreed to pay the City $72,500 in return for the City’s subordinating its priority lien.

Although the other defendants in the action filed a response in opposition to Natcar’s motion for summary judgment, State Road did not oppose the motion; no opposing affidavits are reflected on the record. After conducting a hearing on Natcar’s motion for summary judgment, the trial court granted it.

Soon afterwards, State Road filed a Verified Motion for Reconsideration; Eviden-tiary Hearing; and Adjustment of the order granting summary judgment. State Road alleged that it erroneously submitted an old affidavit, which was drafted prior to the January Stipulation of Settlement. Regardless, State Road explained, “the reason for these extensions and modifications to the stipulation of settlement was due to the fact that all parties were at the mercy of co-defendant City of Plantation’s bureaucracy.” State Road said it was diligently pursuing bringing the property into code compliance, but at every turn it faced City of Plantation “red tape.” The motion further asserted that summary judgment should not have been entered because State Road’s cross-claim against the City was still pending and could affect the amount owed in the final judgment. Additionally, the motion sought to have the summary judgment order adjusted to reflect the true amount of principal due. The trial court denied State Road’s motion for rehearing.

Meanwhile, Ñatear filed a motion for $34,834.50 in attorney’s fees and $925.00 in costs, which the court granted. On January 22, 2009, the trial court entered Final Judgment of Foreclosure against State Road in the total amount of $338,169.20. This amount represented unpaid principal balance on the note of $287,221.42, interest from May 1, 2008 to January 22, 2009 of $15,126.78, attorney’s fees of $84,656.00 and costs of $1,165.00. State Road appealed the Final Judgment of Foreclosure.

State Road argues that summary judgment was inappropriate given the fact that State Road’s related cross-claim against the City was still pending, the disposition of which could reduce the amount of damages awarded on the foreclosure claim. State Road maintains that Ñatear based the premise of its foreclosure action on State Road’s failure to pay code enforcement violations imposed by the City; yet, the validity and amount of the City’s lien on the mortgaged property was the subject of the cross-claim. Thus, State Road argues, the trial court should have resolved the pending cross-claim before ruling on Natcar’s motion for summary judgment.

Ñatear counters that the cross-claim was independent of its foreclosure action; the cross-claim centered around the amount of the City’s lien rather than on the amount due under its note and mortgage. Essentially, Ñatear argues that resolution of the cross-claim would not be determinative of the amount owed under the note. Ñatear also contends that the amount of the mortgage was never in dispute as State Road admitted, all allegations raised in Natcar’s third supplemental complaint. According to Natcar, “notwithstanding [State Road’s] pending cross-claim against the ‘City’, State Road admitted the mortgage balance to be $287,221.42” when it answered Plaintiffs Third Supplemental Complaint. Therefore, Ñatear argues, there was no issue of material fact precluding summary judgment; State Road admitted that it owed a specific amount on the mortgage.

We summarily reject Natcar’s argument that State Road’s Answer to the Third Supplemental Complaint admitted the allegations therein. Despite a scrivener’s error in cross-references to the multiple complaints filed by Ñatear, it is apparent from the context of State Road’s response to the Third Supplemental Complaint that State Road intended to deny the allegations therein.

We also disagree with Natcar’s position that the trial court properly granted summary judgment while State Road’s cross-claim against the City was pending. Natcar argues that the cross-claim concerned the City lien, not the amount of its mortgage. Although State Road’s cross-claim against the City regarding the propriety of the lien did not need to reference the amount of the mortgage owed to Ñat-ear, the amount of mortgage principal owed to Ñatear could have been impacted by the City’s lien. As State Road points out, “Even if Ñatear had properly produced sufficient evidence to demonstrate that the principal increased as a result of paying the City Payment [allegedly made to subordinate the City Lien], the trial court erred in prematurely granting Summary Judgment to Ñatear because the validity of the City Lien was still pending adjudication” in the cross-claim. In other words, even if Ñatear had not failed to demonstrate (or even allege) that the stipulated amount of principal owed by State Road increased by over $66,000 as the result of Natcar’s payment to the City to subordinate its lien, had the trial court first adjudicated the cross-claim and ruled for State Road, there would have been no City lien for Ñatear to subordinate in the first place. In that case, Ñatear would have overpaid the City and improperly increased the principal amount owed, resulting in unwarranted damages charged to State Road. State Road cites to Davar Corp. v. Tropic Land Improvement Corp., 380 So.2d 482, 483-84 (Fla. 4th DCA 1976), as instructive on this point.

In Davor, we reversed a summary judgment in a case where a lienor moved to foreclose a mechanic’s lien while the landowner’s counterclaim was still pending. 330 So.2d at 483. The landowner had counterclaimed for damages as a result of the lienor’s breach of contract. We stated that a better practice in such situations would be to:

grant the motion for.partial summary judgment on plaintiffs claim in a specific amount but withhold final judgment thereon until the outcome of the counterclaim is determined, or to grant plaintiff a final judgment but suspend execution thereon until the counterclaim is determined.

Id.

Similarly, in this case, the trial court should have adjudicated the pending cross-claim before ruling on the motion for summary judgment and entering final judgment.

State Road next argues that the trial court erred in granting summary judgment because there was a genuine issue of material fact regarding the principal amount owed on the indebtedness. State Road maintains that the trial court erred in finding that- the principal amount was $287,221.42, which was $66,298.93 more than the parties had agreed to in the court-approved January 18, 2007 Stipulation. Because the record reflects that the amount of the principal indebtedness was a genuine issue of material fact, entry of summary judgment was precluded. Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Florida, 981 So.2d 654, 655 (Fla. 4th DCA 2008) (explaining that Florida courts have long established that for a trial judge to grant summary judgment, there can be no issues of material fact in dispute).

Finally, we find no error in the trial court’s award of attorney’s fees to Ñatear for time spent litigating the city lien priority issue, as this was connected to its “collection of any or all such sums of money” on the note and mortgage. We thus affirm on this issue.

Affirmed in part; Reversed in part.

GERBER, J. and PEGG, ROBERT L„ Associate Judge, concur.

      . On April 26, 2007, State Road filed its Amended Cross-Claim Complaint against the City of Plantation alleging breach of contract, declaratory judgment, preliminary and permanent injunctive relief, action to enforce the settlement agreement, and action to vacate existing fines and liens. The trial court subsequently dismissed State Road’s action to vacate the lien.

      . Ñatear had previously filed a motion for summary judgment on its first complaint and then again on its second supplemental complaint.


text:
    Jason BARKER, Appellant, v. Shelila RODRIGUEZ, Appellee.
    No. 4D10-2617.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Jason Barker, Fort Lauderdale, pro se.
    Shelila Rodriguez, Tamarac, pro se.
   PER CURIAM.

Appellant challenges the trial court’s entry of a final judgment of injunction for protection against domestic violence with minor child, which also gave temporary custody of the child to the mother. In his pro se brief, he claims that by failing to hear his case the trial court did not provide him with due process. However, the final judgment shows that both parties were present at the final hearing. “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979). Thus, the trial court should be affirmed where the record brought forward by the appellant is inadequate to demonstrate reversible error. Id. at 1152. The record, which does not include a transcript of the proceedings, is insufficient to show that appellant was denied the opportunity to present evidence, that the judgment was not supported by competent substantial evidence, nor that the judgment is erroneous on its face. As such, we must affirm.

Affirmed.

WARNER, POLEN and GERBER, JJ., concur.


text:
    Earl CONEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1958.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Earl Coney, Punta Gorda, pro se.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred in failing to hold a proper Faretta inquiry prior to permitting appellant to represent himself at trial. We find that the trial court conducted an adequate Faretta inquiry prior to the commencement of trial and affirm appellant’s conviction. However, we must remand this case for resentencing, as the trial court did not renew the offer of assistance of counsel to appellant prior to sentencing. Fla. R.Crim. P. 3.111(d)(5); Monte v. State, 51 So.3d 1196 (Fla. 4th DCA 2011). We affirm appellant’s conviction in all other respects.

Affirmed in part, reversed in part, and remanded for resentencing.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    T.T., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-1869, 4D10-1870.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.

      Carey Haughwout, Public Defender, and Nicole M. Ramos, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the circuit court’s finding that appellant violated his probation. The affidavit of violation specified that appellant had violated a condition of probation by skipping school or being tardy on specific dates. There was no evidence presented at the hearing that appellant violated his probation on those dates. This case is similar to Cherington v. State, 24 So.3d 658, 661 (Fla. 2d DCA 2009), in which the second district held that it was error to find a probation violation where Cherington had admitted to possessing and using cocaine on some undetermined date rather than on the date specified in the affidavit of violation. The court reasoned that the unspecified date

was not the conduct explicitly charged in the affidavit.... Accordingly, because the State did not prove its allegations concerning the violation of condition (4), the trial court erred in finding that Cherington had violated this condition of his probation.

Id.; see also Perkins v. State, 842 So.2d 275, 278 (Fla. 1st DCA 2003) (reversing where the affidavit of violation of probation alleged that probationer’s failure to remain confined to approved residence had occurred in April, and the trial court found that such a failure did not begin until May). “To revoke probation based on conduct not charged in the affidavit constitutes a deprivation of the defendant’s right to due process of law.” Cherington, 24 So.3d at 660.

Reversed and remanded.

STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E„ Associate Judge, concur.


text:
    Nasra ARAFAT, Appellant, v. Mohamed IBRAHIM, Appellee.
    No. 4D10-1181.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Nasra Arafat, Coral Springs, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    T.S.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-969.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, T.S.W., timely appeals the order finding him guilty, but withholding adjudication of delinquency for carrying a concealed weapon in violation of section 790.001, Florida Statutes (2009). The issue before us is whether the trial court erred in denying Appellant’s Motion for Judgment of Dismissal after concluding that the knife appellant carried was not a common pocketknife. We reverse and hold that the trial court erred because the evidence presented by the State established that the characteristics of the knife at issue were those of a common pocketknife and not a weapon as defined by section 790.001(13).

The only evidence relied upon by the State to establish that the knife was a weapon and not a common pocketknife was the testimony of the arresting officer and two photographs of the knife. The officer testified that the blade of the knife was approximately three and a quarter inches and folded into the handle. When fully opened the knife measured almost eight inches long. The cutting edge of the blade consisted of a combination of a smooth and serrated portion. The first inch and a half was smooth with the next inch having a serrated edge. When folded the knife handle was slightly curved with a camouflage pattern on each side of the handle. The handle had grooves to allow the user to hold the knife securely, which could prevent a hand from slipping when cutting a fishing line or skinning a deer.

At the end of the State’s case, Appellant moved for a judgment of dismissal, and renewed its motion after the defense rested on the grounds that the evidence established that the knife found on Appellant was a common poeketknife, which is exempt from the definition of a weapon under section 790.001(13). The State responded that the knife was a combat-style knife and not a common poeketknife. The court denied the motion, concluding that the knife was not a common poeketknife.

The standard of review for a motion for judgment of dismissal in juvenile cases is the same de novo standard we apply to review a judgment of acquittal in an adult criminal case. R.H. v. State, 56 So.3d 156,157 (Fla. 4th DCA 2011); A.L.J. v. State, 12 So.3d 873, 874 (Fla. 4th DCA 2009).

Our supreme court has defined a common poeketknife as “ ‘[a] type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.’” L.B. v. State, 700 So.2d 370, 372 (Fla.1997). In addressing the knife at issue there, the court looked to the Florida Attorney General’s opinion which opined “that a poeketknife with a blade of four inches in length or less was a ‘common poeketknife.’ ” Id. at 373. Although the supreme court was clear that it did not intend to establish a bright line test for whether a particular knife is a common poeketknife, at a minimum, it held that a knife that folds into its handle, with a blade four inches in length or less, that can be carried in one’s pocket is presumed to be a common poeketknife. Id. at 373 n. 4.

The State argues that the grooves on the handle along with the partially serrated blade are weapon-like characteristics, which take the knife out of the exception of the definition of a weapon. In support of its argument, the State relies upon the Third District’s opinion in J.D.L.R. v. State, 701 So.2d 626 (Fla. 3d DCA 1997). In J.D.L.R., the trial court described the knife as a “folding knife with a pointed 3 1/2 inch blade, notched combat-style grip and large metal hilt guard (to prevent the user’s fingers from sliding onto the blade).” Id. at 627 (emphasis added). The Third District affirmed the trial court’s ruling, holding that the knife in question had weapon-like characteristics, and, therefore, did not fall within the common poeketknife exception to the definition of a weapon. Id.

Here, the knife at issue has the characteristics of a common poeketknife and has no weapon-like characteristics such as a hilt guard, notched combat-style grip, double-edged blade, or switchblade; furthermore, it was not carried in an open and locked position. See J.R.P. v. State, 979 So.2d 1178, 1179 (Fla. 3d DCA 2008) (citing Porter v. State, 798 So.2d 855, 856 (Fla. 5th DCA 2001)); J.D.L.R. v. State, 701 So.2d at 627; see also K.H. v. State, 29 So.3d 426, 428 (Fla. 5th DCA 2010). Accordingly, the trial court erred in denying the motion for judgment of dismissal.

Reversed.

CIKLIN and LEVINE, JJ„ concur.

      . Section 790.001(13), Florida Statutes, (2009), defines a weapon as: "any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.”


text:
    MARTIN COUNTY, Florida, Appellant, v. POLIVKA PAVING, INC., d/b/a Polivka Surface Engineering, Ltd., Appellee.
    No. 4D09-248.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for appellant.
    Joseph W. Lawrence, II and Diana J. Zelmer of Vezina, Lawrence & Piscitelli, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

In Martin County v. Polivka Paving, Inc., 44 So.3d 126 (Fla. 4th DCA 2010), we reversed that portion of a final judgment awarding home office overhead damages and remanded for the entry of an amended final judgment. This case is an appeal from an award of attorney’s fees. Although the appellee/plaintiff remains the prevailing party entitled to an award of attorney’s fees, the reversal on a significant aspect of the underlying case requires the trial court to reconsider the amount of attorney’s fees awarded; the trial court “must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims.” Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). On remand, the trial court should attempt to determine whether the plaintiffs attorneys spent a separate and distinct amount of time on the issue of home office overhead damages that then can be backed out of the lodestar. We agree with the trial court that some contingency risk multiplier was appropriate in this case, but on remand the trial court should evaluate how the adjusted result obtained impacts the amount of the multiplier.

Reversed and remanded.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    PINES CHILDREN’S FITNESS CENTER and Salvatore Parente, Appellants, v. SHOPPES AT PEMBROKE, LLC., a Florida Limited Liability Company, Appellee.
    No. 4D10-1739.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Ron Renzy and Wendy S. Wallberg of Wallberg & Renzy, P.A., Coral Springs, for appellants.

      Eric T. Salpeter and Cristy L. Caserta of Salpeter Gitkin, LLP., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a summary final judgment in a commercial landlord’s action for damages arising from a tenant’s breach of a lease. We affirm all aspects of the judgment except for one. The landlord failed to set forth facts “as would be admissible in evidence” to show that it was the assignee of the lease entitled to enforce its terms. Fla. R. Civ. P. 1.510(e); see Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (reversing summary judgment in mortgage foreclosure case where record did not contain, among other things, “evidence of an assignment,” so that there was insufficient evidence that plaintiff was the holder and owner of a note); BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010). (reversing summary judgment in mortgage foreclosure case where an “incomplete, unsigned, and unauthenticated assignment attached as exhibit to a pleading” did not constitute “admissible evidence” establishing the plaintiffs standing to sue).

Affirmed in part, reversed in part and remanded.

WARNER, GROSS and TAYLOR, JJ„ concur.


text:
    TBE GROUP, INC., d/b/a Tampa Bay Engineering, Petitioner, v. Tapan BANERJEE, The Demoya Group, Inc., Adair & Braidy, Inc., State of Florida Department of Transportation, Protection Services, Inc., United Rentals Highway Technologies, Inc., Steven D. Brown, and Ann Stockton Deaunovich, Respondents.
    No. 4D11-1580.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Donald F. Wright, Edward M. Baird, Ryan C. Phillips, and Sarah D. Rodriguez of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for petitioner.
    No response required for respondents.
   PER CURIAM.

We have previously dismissed petitions for writ of certiorari challenging nonfinal orders that denied claims of sovereign immunity, pursuant to section 768.28, Florida Statutes. See Dep’t of Educ. v. Roe, 679 So.2d 756 (Fla.1996); Brown v. McKinnon, 964 So.2d 173 (Fla. 3d DCA 2007), rev. denied, 980 So.2d 488 (Fla.2008). Accordingly, the instant petition likewise is hereby dismissed.

However, we note that the supreme court has accepted jurisdiction of Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA), rev. granted, 54 So.3d 973 (Fla.2010), in which the First District certified the following as a question of great public importance:

Whether review of the denial of a motion for summary judgment, based on a claim of individual immunity under section 768.28(9)(a) without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?

Id. at 1068.

This case involves the denial of a motion for summary judgment based on a corporation’s claim of immunity as an agent of the State Department of Transportation, under section 768.28(9)(a) and (10)(e). Accordingly, we certify the following question:

Whether review of the denial of a motion for summary judgment, based on a claim of immunity as an agent of the state under section 768.28(9)(a) & 10(e), without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?

Dismissed; question certified.

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Glen STEVENSON, Appellant, v. SUNTRUST MORTGAGE, INC., PNC Bank, National Association f/k/a National City Bank and Unknown Tenant(s) in Possession of the Subject Property, Appellees.
    No. 4D11-553.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Evan B. Plotka of Evan B. Plotka, P.L., Hollywood, for appellant.
    Wm. David Newman, Jr. of the Law Offices of Marshall C. Watson, P.A., Fort Lauderdale, for Appellee — Suntrust Mortgage Inc.
   PER CURIAM.

Pursuant to Appellee Suntrust Mortgage, Inc.’s concession of error, we reverse this case and remand it to the trial court for further proceedings.

Reversed and Remanded.

TAYLOR, CIKLIN and LEVINE, JJ., concur.


text:
    Ronald M. HOMER Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3690.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2011.
    Rehearing Denied Oct. 10, 2011.

      Ronald M.- Homer Jr., pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(5)(A).

DAVIS, PADOVANO, and RAY, JJ., concur.


author: BENTON, C.J.

text:
    Paul MILNER, III, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Waste Management, Inc. of Florida, Appellees.
    No. 1D10-5966.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Paul Milner, III, pro se, Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   BENTON, C.J.

Paul Milner, III, appeals a decision of the Unemployment Appeals Commission (UAC) affirming an appeals referee’s order denying benefits on grounds that Mr. Mil-ner did not show good cause for failing to participate in a telephone conference call. Persuaded that Mr. Milner’s showing did establish good cause, we reverse and remand for further proceedings.

Originally the Agency for Workforce Innovation (the Agency) determined Mr. Mil-ner had been discharged from his job with Waste Management, Inc., on April 1, 2010, for misconduct connected with work. The Agency mailed its determination that he was disqualified from receiving benefits for that reason on May 7, 2010, along with advice that he had twenty days in which to perfect an administrative appeal of the determination. Acting on this advice, Mr. Milner took a timely administrative appeal of the initial determination.

By notice dated June 4, 2010, the Agency set a telephone conference call or hearing for June 16, 2010. Unable to reach Mr. Milner by telephone at the appointed time, the Agency dismissed his appeal with an order which included the' following language: “To request a new hearing, you must show good cause for failing to attend the previous hearing. The request must be filed within 20 calendar days of the date this decision is mailed.” On Monday, June 21, well within the time allowed, Mr. Mil-ner faxed a letter to the Agency requesting a new hearing.

Florida Administrative Code Rule 60BB-5.017(3) specifically authorizes an appeals referee “for good cause [to] rescind a dismissal decision and reopen the appeal.” The rule further provides:

A threshold issue to be decided at the hearing held to consider reopening an appeal shall be whether there is a good cause for proceeding with an additional hearing.] If good cause is found, the appeals referee shall proceed on the merits. If good cause is not found, the referee shall reinstate the decision.

Fla. Admin. Code R. 60BB-5.017(3)(a). In keeping with the rule, the Agency scheduled a new hearing for August 2010 by notice that read:

A new hearing will be scheduled to provide the party an opportunity to show good cause for re-opening the appeal. If good cause is established, all parties will have an opportunity to present evidence, question witnesses, offer rebuttal, and make closing statements regarding the issues shown on the Notice of Hearing. If good cause is not established, the previous decision will be reinstated.

At the hearing, Mr. Milner testified that he was out of town looking for work during the month of June and had asked a friend to get his mail. When asked what he did “to make sure that [he] kept abreast of what was going on with [his] appeal,” Mr. Milner responded that he called the unemployment office to check on the hearing date. Only when he called, he testified, did he learn that the hearing date had passed two or three days earlier, whereupon he promptly faxed the letter requesting reopening of his appeal.

After this testimony, the appeals referee began questioning the employer’s witnesses on the issue of whether or not Mr. Milner was discharged for misconduct. Altogether, four witnesses testified to the circumstances surrounding the termination of Mr. Milner’s employment.

But the appeals referee issued a “Notice of Reinstated Decision,” that did not address why Mr. Milner lost his job:

The claimant was out of town for the month of June 2010 but had someone checking his mail for him. The individual checking the claimant’s mail did not tell the claimant about the hearing. The claimant called the friend two days later and was at that time told of the hearing. The claimant waited until June 21, 2010, before he submitted a request to reopen the appeal. The claimant did not show that he exercised due diligence in requesting reopening of the appeal nor did the claimant have good cause for the non-appearance.

The Unemployment Appeals Commission affirmed the appeals referee’s decision, including the grounds for decision.

“ ‘Good cause for failure to attend a scheduled hearing is any cause which indicates an additional hearing is reasonably necessary in the interest of justice.’ ” Javier v. Goodwill Indus, of S. Fla., Inc., 882 So.2d 524, 525 (Fla. 3d DCA 2004) (quoting appeals referee’s order). In the present case, Mr. Milner was not at home when the notice of hearing arrived, and he did not learn about the hearing until he called the Agency to inquire as to the date of the hearing. In Rouse v. Unemployment Appeals Commission, 728 So.2d 345, 347 (Fla.4th DCA 1999), the Fourth District found that the appeals referee did not abuse her discretion in finding the employer had good cause to reopen the proceedings when the employer did not appear at the hearing “due to the misrouting of mail in the [employer’s] offices.” Similarly, in Coon Clothing Co., Inc. v. Eggers, 560 So.2d 1357, 1357 (Fla. 3d DCA 1990), the employer testified that the notice of hearing arrived five days before the hearing, when he was out of town, and that he did not see the notice until he arrived back in town on the morning of the hearing. The UAC ruled that the employer did not establish good cause for his nonappearance. But the Third District reversed, holding “[w]here, as here, there is a short absence from the business which results in nonappearance, we think good cause has been shown for reopening of the appeal.” Id. at 1358.

Like the employers in Coon Clothing and Rouse, Mr. Milner’s nonparticipation was not the result of any deliberate action to avoid or decision to miss the hearing. Indeed, Mr. Milner missed the hearing because he was out of town looking for work. Under these circumstances, we believe a new hearing is “reasonably necessary in the interest of justice.” Javier, 882 So.2d at 525.

The Agency’s website answers the question “When will my hearing be scheduled?” as follows: “The Office of Appeals schedules hearings in the order the appeals are received. When the unemployment rate is high, it may take a few weeks for a hearing to be scheduled. We try very hard to resolve each case within 45 days after the appeal is received.” Agency for Workforce Innovation Frequently Asked Questions — Appeals, http://wivw.floridajobs.org/ unemploymenVappfaqs_ans.html (last visited Aug. 11, 2011). We have never held that claimants are under an obligation to suspend out-of-town searches for employment for “a few weeks” in order to preserve their appeal rights.

We also note with interest that the appeals referee gave no indication that he had any question about the propriety of proceeding to the merits at the hearing. Without hesitation or comment, once Mr. Milner explained why he did not answer his telephone at the time the first conference call was scheduled, the appeals referee took testimony from several witnesses on the merits. See Fla. Admin. Code R. 60BB-5.017(3)(a) (“If good cause is found, the appeals referee shall proceed on the merits.”). The conduct of the hearing also seemed to comport Avith the notice, which provided: “If good cause is established, all parties Avill have an opportunity to present evidence, question witnesses, offer rebuttal, and make closing statements regarding the issues” on the merits.

Reversed and remanded.

CLARK and MARSTILLER, JJ., Concur.

      . Whether or not an administrative appeal is instituted in a timely fashion to begin with is a question of jurisdiction. But failure to invoke the administrative appellate process is not at issue here. The question in the present case is the nonjurisdictional question whether to reschedule a hearing. Mr. Milner was not required to show that the Agency’s actions caused his nonappearance, and he has never contended that they did. Cf. Thurman v. Fla. Unemployment Appeals Comm’n, 881 So.2d 89, 91 (Fla. 1st DCA 2004) ("Section 443.151(4)(b), governing appeals from UAC determinations, does not provide a ‘good cause’ exception that would permit the UAC to accept an untimely filed appeal.... The untimeliness of unemployment appeals has been excused on grounds of fairness and due process when the untimeliness was 'occa- . sioned by the actions of the Commission.' " (citations omitted)). See also Dakers v. State, Unemployment Appeals Comm’n, 942 So.2d 957 (Fla. 4th DCA 2006) (affirming dismissal of appeal on grounds that it was not filed within the statutory twenty-day period, when claimant did not challenge the mailing date of the decision, the correctness of the address to which it was mailed, or her timely receipt of the decision, but instead claimed that she had good cause for her late filing because she was out of the country tending to a sick relative).

      . The appeals referee’s finding that Mr. Mil-ner’s friend who was checking his mail informed him about the hearing date lacks any support in the evidence. We are bound to uphold administrative fact finding but only when there is competent, substantial evidence in support. See Porter v. Fla. Unemployment Appeals Comm’n, 1 So.3d 1101, 1103 (Fla. 1st DCA 2009).

      . In Javier v. Goodwill Indus, of S. Fla., Inc., 882 So.2d 524, 525 (Fla. 3d DCA 2004), the court upheld the UAC’s affirmance of an appeals referee’s order dismissing the appeal for failure to participate in a hearing, where the claimant had actually received the notice of hearing "in a timely manner” but testified she was "confused with all the paperwork she received and her son did not want to be bothered translating the documents for her.” The record does not disclose when written notice reached Mr. Milner’s mailbox, but he did not receive it until after the hearing and there was no suggestion that he simply decided, as the claimant did in Javier, not to attend the hearing.


text:
    Timothy SHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1710.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.
    Jennifer R. Kuczler, Fort Pierce, and Timothy Shields, Orlando, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The State of Florida moved for rehearing, having discovered the transcript of a “second proceeding” in this post-conviction case. The transcript reveals that the trial judge verbally announced his findings of fact and conclusions of law following the evidentiary hearing. Now that we have the complete record, we grant rehearing and Avithdraw our prior opinions in Shields v. State, 36 Fla. L. Weekly D2466 (Fla. 4th DCA July 6, 2011) and Shields v. State, 59 So.3d 385 (Fla. 4th DCA 2011). We substitute this opinion in place of those previously issued.

Based on the record now before this court, the trial court’s orders in this case, summarily denying some of appellant’s claims and denying others following an evidentiary hearing, are affirmed.

Affirmed.

POLEN, HAZOURI and DAMOORGIAN, JJ., concur.


author: GERBER, J.

text:
    Antoney PHILLIPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-539.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant argues that the trial court erred by permitting the state to call two undisclosed rebuttal witnesses and by failing to conduct a Richardson hearing. Richardson v. State, 246 So.2d 771 (Fla.1971). In response, the state argues that the defendant did not preserve this error for review. We agree with the state and affirm. See Taylor v. State, 62 So.3d 1101, 1116 (Fla.2011) (“ ‘Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review.’ ”) (citations omitted).

Affirmed.

WARNER and POLEN, JJ., concur.


author: TUTER, JACK B., JR., Associate Judge.

text:
    Bobby J. BROOMFIELD, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3266.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TUTER, JACK B., JR., Associate Judge.

The defendant appeals his convictions and sentences on three counts of armed sexual battery, false imprisonment, robbery, burglary while armed, and trespass after a trial by jury. He raises three issues on appeal, seeking a new trial. We find no error and affirm the convictions and sentences.

The defendant worked in the maintenance department of an apartment complex and had keys to the tenants’ apartments. On the evening of July 6, 2007, while sleeping, the victim heard her dog growling and soon thereafter the sound of keys opening her front door. As she awoke, she observed a man holding a machete in her bedroom. The victim recognized the man as the defendant, a maintenance worker at her apartment complex. The defendant demanded money, zip tied the victim’s wrists and told her they were going to an ATM.

The defendant then ordered the victim into the passenger seat of her car. The victim was able to free herself momentarily and fled the vehicle screaming. The defendant captured the victim, zip tied her wrists even tighter and forced her back into the car. When the victim’s car would not start, the defendant moved her to a car parked by the maintenance shop and drove her to a vacant apartment where he sexually assaulted her.

The defendant then drove the victim to several locations to force her to withdraw money from an ATM. While driving, the defendant’s cell phone rang. The victim recognized the ring tone as the same tone she had heard when he had answered a call at her apartment to repair an air conditioner. At the ATM, the victim withdrew $600.00 and gave it to the defendant. Upon returning to the apartment complex, the defendant again sexually assaulted the victim. He then ordered her to shower and left the apartment whereupon he was apprehended by the police.

Following a jury trial, the defendant was found guilty of three counts of armed sexual battery, false imprisonment, robbery, burglary while armed, and trespassing. The defendant raises three issues on appeal. First, was there error when the trial court denied the motion to suppress his statement? Second, did the trial court err in admitting hearsay from a detective and emergency room physician? Third, did the trial court commit error by providing the jury with a transcript of the defendant’s taped statement when the statement was played in court? Finding no merit to defendant’s arguments, we affirm.

The trial court denied the defendant’s motion to suppress his statement after finding the police fully informed the defendant of his rights prior to questioning. We agree the trial court properly denied the motion. See Alvarez v. State, 890 So.2d 389 (Fla. 1st DCA 2004).

We find no error in the admission of hearsay evidence from the detective. The trial court correctly allowed the detective to explain why the victim did not run when she was alone at the ATM machine after defense counsel opened the door by implying the victim voluntarily withdrew the money because she stood alone at the ATM machine. See Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010) (citing Rodriguez v. State, 753 So.2d 29, 42 (Fla. 2000)).

We further find no error in the court’s admission of the emergency room doctor’s testimony concerning the victim’s demeanor. That testimony did not constitute hearsay. See § 90.801, Fla. Stat. (2009).

Lastly, we find no error in providing the jury with a transcript of the defendant’s taped statement, which was played at trial. The trial court properly instructed the jury to rely on the taped statement, not the transcript, and to use the transcript only as a guide. See Martinez v. State, 761 So.2d 1074, 1086 (Fla.2000).

Affirmed.

MAY, C.J., and CONNER, J., concur.


text:
    Jean Voltaire JEAN-LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3556.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 2011.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TUTER, JACK B., JR., Associate Judge.

The defendant was charged by a second amended information with aggravated stalking of the victim or his family. After a non-jury trial, the trial court found the defendant guilty of attempted simple stalking — a second degree misdemeanor. The defendant appeals his conviction and the suspension period of his concealed weapons license as a condition of probation. We affirm his conviction without discussion, but reverse as to the order imposing a five-year suspension of his concealed weapons license.

The trial court placed the defendant on six months probation and ordered that he not possess, carry or own any weapons. The court also revoked his concealed weapons license for five years. The trial court’s sentencing order stated, “If Judge has authority to revokefj deft must surrender concealed lie to clerk w/in 5 days. Deft may reapply after 5 years after having concealed lie revoked.”

After the defendant filed his Notice of Appeal, he filed a Motion to Correct Sentencing Error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In that motion, he challenged the provision of his sentence limiting his ability to carry a concealed weapon. Because the trial court failed to rule on the motion within sixty days, it is considered denied, pursuant to the rule. See Fla. R. Crim. P. 3.800(b)(1)(B).

Section 790.06(3), Florida Statutes (2008), concerning concealed weapons licenses, provides:

(3) The Department of Agriculture and Consumer Services shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department of Agriculture and Consumer Services shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years. The department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license under this section, until final disposition of the case. The department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.

While we find no error in the conviction of the second degree misdemeanor of attempted simple stalking, the trial court exceeded the time provided by statute for revocation of the defendant’s concealed weapons license. Section 790.06(3) limits the time frame for either revocation or suspension of a concealed weapons license to three years. We find the trial court’s five-year revocation of the defendant’s concealed weapons license exceeds the time permitted by the statute. We therefore reverse the condition of a five-year revocation of the concealed weapons license, and remand the case to the trial court to reduce the time frame for revocation of the defendant’s concealed weapons license to three years.

Affirmed in Part; Reversed in Part and Remanded.

MAY, C.J., and CONNER, J., concur.


text:
    Frankie SILVESTRI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2401.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Rehearing Denied Oct. 10, 2011.
    Frankie Silvestri, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(c)(5)(A).

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


author: MAY, C.J.

text:
    POMPANO BEACH COMMUNITY REDEVELOPMENT AGENCY, Appellant, v. Jeffrey HOLLAND, Appellee.
    No. 4D10-291.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.

      Gordon Linn, Pompano Beach, and Mitchell J. Burnstein of Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.L., Fort Lauderdale, for appellant.
    Leon J. McCombs II, Fort Lauderdale, and Derick Roulhac Ali, Fort Lauderdale, for appellee.
   MAY, C.J.

This appeal challenges the trial court’s application of section 73.092, Florida Statutes (2008), to award attorney’s fees in an eminent domain proceeding. The parties disagree on which of three writings constitute the “first written offer” under the statute. The trial court found that an unexecuted contract was the first written offer. We disagree and reverse.

In 2004, the government sought to acquire property from the owner. It transmitted an appraisal report, valuing the property at $25,000, to the owner’s counsel to support its offer of the same amount to the property owner.

In 2005, the government, through a contractor, sent the owner a letter and purchase-sale contract, offering $31,250 for the property. The contract contained contingencies and was never executed. Specifically, the contract provided:

The performance by the [government] of its obligations hereunder, including the payment of any sums due hereunder, is - subject to and dependent upon an annual appropriation for that purpose being duly made by the [government]. The [government] is not legally required to appropriate revenue for this purpose. In the event the [government] fails to appropriate revenue for this purpose, this Agreement will automatically terminate, title to the Property shall remain vested in the [owner], and the [government] shall have no further obligation hereunder to the other party hereto.

The contract also provided:

The contract or any. _ modification, amendment, or alteration thereto, shall not be effective or binding upon any of the parties hereto until it is approved by the [government] Commissioners and executed by the [government’s] Chairman and Secretary.

The owner did not accept the offer, and no further action was taken on the unexecut-ed contract.

In 2006, the government mailed a pre-suit notification letter via U.S. Certified Mail, making an offer in the amount of $62,500. The letter contained no contingencies and was compliant with the mandates of section 73.015, Florida Statutes (2008). The letter informed the owner if negotiations did not result in an agreement, the government would use its power of eminent domain to acquire the property. The owner was represented by counsel from the inception of this acquisition. The owner rejected the offer.

The government subsequently filed an eminent domain action, resulting in a final judgment taking the property. The owner then requested attorney’s fees, pursuant to section 73.092. The trial court awarded attorney’s fees of $15,097.50, relying on the unexecuted contract sent by the contractor as the first written offer. The government appeals the attorney’s fees award.

Generally, a trial court’s award of attorney’s fees “will not be disturbed absent a clear abuse of discretion.” Amerada Hess Corp. v. Fla. Dep’t of Transp., 788 So.2d 276, 277 (Fla. 4th DCA 2000). However, because the issue here is whether the court properly applied the law in determining which writing constituted the first written offer for calculating attorney’s fees, it involves a question of law for which we have de novo review. See Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011).

The calculation of attorney’s fees under section 73.092 uses a benefits approach. The statute provides in part:

(1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney’s fees based solely on the benefits achieved for the client.
(a) As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

§ 73.092(1), Fla. Stat. (2008) (emphasis added). The use of the benefits approach encourages pre-litigation agreement between parties and the acceptance of reasonable offers by the government to avoid litigation.

The government argues that the unexe-cuted contract cannot be the first written offer because it is more like an option contract. Instead, the government argues the letter, prepared and delivered in compliance with section 73.015, was the first written offer upon which the attorney’s fees calculation should be based. The owner responds that the trial court correctly found the unexecuted contract was the first written offer because it contained “an expression by a party of assent to certain definite terms, provided that the other party involved in the bargaining transaction -will likewise express assent to the same terms.” Pierpont v. Lee Cnty., 710 So.2d 958, 960 (Fla.1998).

We first reject the government’s assertion that the unexecuted contract constituted an option contract. Here, the letter and unexecuted contract imposed no obligation on either the government or the owner, contained no obligation to keep the offer open for a specified period of time, and included no consideration. See, e.g., Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, Inc., 986 So.2d 1279, 1285 (Fla.2008) (defining an option contract).

We agree with the government, however, that the unexecuted contract failed to constitute the first written offer. See City of Boynton Beach v. Janots, 929 So.2d 1099, 1102 (Fla. 4th DCA 2006). The government’s obligation to purchase was subject to contingencies and its own discretion.

In Janots, we were required to look at two letters to determine which constituted the first written offer. Id. at 1099-1100. The first letter was expressly contingent upon approval by the city commission. Id. at 1101-02. The second letter, which referenced section 73.015, indicated the commission had already approved the acquisition. Id. at 1100. We emphasized that where the condemning authority is not bound by an owner’s acceptance, an offer is irrelevant for the purpose of calculating attorney’s fees under section 73.092. Id. at 1101-02.

Here, the unexecuted contract did not obligate the government to purchase upon the owner’s acceptance. The government only became obligated if the commission subsequently approved the acquisition and appropriated the necessary funds. Because the government did not become obligated upon acceptance by the owner, the unexecuted contract was not the first written offer for the purpose of calculating attorney’s fees. Id.

The last letter sent by certified mail to the owner, in accordance with section 73.015, expressed the government’s offer to purchase the property in certain, definite terms; was immediately binding upon the owner’s acceptance; and, contained no contingencies. It was the “first written offer” for purposes of section 73.092.

We therefore reverse and remand the case to the trial court to re-calculate the attorney’s fees using the certified letter as the date from which to calculate the benefit achieved.

Reversed and Remanded.

WARNER and POLEN, JJ., concur.

      . We will refer to the Pompano Beach Redevelopment Agency as the government for ease of reference.

      . Section 73.015 requires a condemning authority to negotiate in good faith with the property owner before initiating an eminent domain proceeding. It also requires the condemning authority to inform the property owner that all or a portion of the property is necessary for a project, the nature of the project, and the property owner's statutory rights under sections 73.091 and 73.092, Florida Statutes (2008).

      . If the initial appraisal was used as the first written offer, it would yield attorney's fees of $ 17,160. If the unexecuted contract was used as the first written offer, it would yield a fee of $15,097.50. Using the certified letter as the first written offer would yield a fee of $4,785.


author: WARNER, J.

text:
    C.D., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-219.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.

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

C.D. appeals his adjudication on a charge of possession of marijuana. He claims that the trial court erred in denying his motion to suppress the drugs found on him when an officer stopped him in a public park and then, for officer safety, searched him. We agree that the officer’s search of the juvenile was not lawful, and the court should have suppressed the marijuana found as a result of the search. We reverse.

Two Palm Beach County sheriffs deputies were conducting surveillance one evening at a Royal Palm Beach city park because of reports of drug paraphernalia found there. In the dark they observed two males traversing the park, and they confronted the boys as they approached the park exit. The officers, who were in full uniform, identified themselves as deputies and attempted to explain to the juveniles about the ordinance in the park, which allowed people to be present from dawn to dusk. Posted signs in the park gave notification of the park’s time of operation.

The officer recognized one of the boys, C.D., as a person to whom he had given the same warning several weeks earlier. As the officer began to explain the ordinance again, C.D. began to walk away. The officer called him back, but C.D. continued to walk away. At that point the officer arrested him for violation of the ordinance. Because C.D. made moves toward his pocket, and the officer was unsure if he had a weapon, he searched him, incident to the arrest, and found in that same right front pocket a clear plastic baggie with marijuana in it. He was charged with possession of marijuana.

C.D. moved to suppress the marijuana, claiming that the ordinance was noncriminal and thus could not support an arrest or the search incident thereto. The trial court denied the motion, finding that because of the furtive movements the officer had a right to search C.D. to insure officer safety. C.D. then pled to the charge, reserving his right to appeal the dispositive issue. He now appeals.

A trial court’s suppression order that turns on an issue of law is reviewed de novo. Porter v. State, 765 So.2d 76, 77 (Fla. 4th DCA 2000).

The officer arrested C.D. for being in the city park after dark, a violation of a municipal ordinance. That ordinance provides as follows: “The hours of operation for all non-lighted public parks shall be from sumase to sunset, unless a special permit has been procured from the village council allowing a special event extending the hours.” Royal Palm Beach Code of Ordinances, Sec. 17 — 13(a). It is contained in a chapter of “Offenses and Miscellaneous provisions.” Unlike many other offenses in this chapter, no penalty is included, nor does the provision state that it is a violation to be in the park after the hours of operation. Section 1-11 of the Code of Ordinances provides for a fine of up to $500 where an ordinance declares the doing of an act, or the failing to do an act, unlawful. Although the ordinance defining the park hours of operation does not declare entering into the park after hours a prohibited act, at the most the only penalty which could be assessed would be a fine of up to $500.

Assuming without deciding that the ordinance is a prohibitory one, where the penalty for violating a municipal ordinance is a fine, an “arrest” for the violation of such an ordinance, as authorized in section 901.15(1), Florida Statutes, permits only a detention for the time necessary to issue a summons or notice to appear, and a full custodial detention and search in these circumstances violates the Fourth Amendment. See Thomas v. State, 614 So.2d 468, 471 (Fla.1993). See also Cuva v. State, 687 So.2d 274 (Fla. 5th DCA 1997) (Violation of a municipal ordinance was neither a “crime” nor a “noncriminal violation” which would permit officers to detain defendant.) In Thomas, the ordinance provided for a criminal penalty of jail time for a traffic offense, but the ordinance was declared in violation of state law which had decriminalized all similar traffic offenses. Our supreme court held that a search incident to a custodial arrest was illegal. In this case, the ordinance did not provide for any penalty, let alone incarceration. Based upon Thomas, the officer’s custodial arrest of C.D. was unlawful.

Nevertheless, the state argues that the officer had the right to detain C.D. for violation of the ordinance and in doing so became concerned for officer safety when C.D. moved his hand close to his pocket, thus justifying the search on the same basis as did the trial court. We have held, however, that sueh a movement by an individual detained for a noncriminal infraction is insufficient to warrant a pat-down or any protective search. In State v. Barnes, 979 So.2d 991 (Fla. 4th DCA 2008), an officer saw Barnes riding his bike at night without a light, as required by law. The officer approached Barnes who began to make movements towards his front pockets. Thinking Barnes might have a weapon, the officer patted him down while asking him if he had a weapon. Barnes denied having a weapon but admitted having marijuana in his pocket, which the officer then retrieved. We reversed the trial court’s denial of Barnes’ motion to suppress the marijuana. An officer can do a pat-down for weapons where he has a reasonable suspicion that the suspect is armed. A weapons pat-down is justified where an officer sees a bulge in the defendant’s clothing. However, an officer “does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps his hands in or near his pockets.”

The officer in this case saw C.D. only move his hands towards his pocket. The officer saw no bulge nor any indication of a weapon. Moreover, the officer did not do a mere pat-down but commenced a full search of C.D. As in Barnes, the circumstances were insufficient to warrant a reasonable suspicion that C.D. was armed. Therefore, the search of his pockets constituted an unreasonable search in violation of the Fourth Amendment.

For the foregoing reasons, we hold that the trial court erred in denying the motion to suppress. We reverse and remand to vacate the adjudication of delinquency and the probationary sentence imposed.

LEVINE and CONNER, JJ., concur.