text:
    William A. BELFORD, Appellant, v. Deborah BELFORD, Appellee.
    No. 2D09-1566.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2011.

      J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

William Belford appeals the final judgment dissolving his marriage to Deborah Belford. He challenges portions of the property distribution that charged him with dissipating marital assets. We reverse because the evidence failed to prove misconduct on Mr. Belford’s part.

The case was heard by a general magistrate who prepared a report and recommendation, which the circuit court adopted after hearings on the parties’ exceptions. At Ms. Belford’s urging, the magistrate found that Mr. Belford depleted marital assets after the parties separated. The magistrate accounted for these depleted assets in the recommended equitable distribution scheme by charging Mr. Belford with $44,678 that had been withdrawn from marital IRAs and classifying as Mr. Belford’s nonmarital debt $44,279 that had been borrowed from the parties’ equity line of credit. All of the funds from both sources were spent during the parties’ separation.

These dispositions were based on the magistrate’s determination that Mr. Bel-ford’s postseparation spending was “in excess of the reasonable and necessary living expenses he paid for both parties” and was “for his sole use and benefit.” Nevertheless, the magistrate concluded that “there is not substantial competent evidence that [the dissipation of assets] was willful, deliberate or intentional.”

This aspect of the final judgment was erroneous for two reasons. First, the magistrate’s finding that Mr. Belford had spent marital funds and incurred marital debt for nonmarital purposes was unsupported by evidence. To be sure, Ms. Bel-ford asserted her belief that Mr. Belford was “shoving the money to Mexico for some time,” but she offered no proof in support of that speculation. Mr. Belford denied the allegation and outlined his use of the funds for marital purposes. Second, the magistrate’s conclusion that the dissipation was not intentional should have resolved the issue in Mr. Belford’s favor.

In the absence of misconduct, it is error to charge to a party’s share of equitable distribution assets that were dissipated during the dissolution proceedings. Roth v. Roth, 973 So.2d 580, 584-85 (Fla. 2d DCA 2008). Likewise, in the absence of misconduct, it is error to classify marital debt as one party’s nonmarital obligation. Branch v. Branch, 775 So.2d 406 (Fla. 1st DCA 2000). Misconduct is not shown by “mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.” Roth, 973 So.2d at 585. Rather, there must be a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party’s “own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Id. (quoting Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994)).

On remand, the equitable distribution shall be refashioned without consideration of the $44,678 that was withdrawn from the IRAs and spent. Further, the $44,279 home equity line debt shall be classified as a marital obligation and factored into the equitable distribution so as to evenly distribute it between the parties. The simplest approach might be to adjust Mr. Belford’s equalizer payment, but we leave the choice of how best to adjust the equitable distribution to the circuit court’s discretion.

Reversed and remanded.

WHATLEY and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    Ricky Lane CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5947.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his conviction for armed robbery. Among other issues, he asserts the trial court erred in allowing similar fact evidence of a second robbery as well as allowing the second robbery to become a feature of the trial. We agree with appellant as to both assertions.

There was no unique or particularly unusual characteristic of either robbery so as to render the offenses similar in the context of collateral crimes evidence; thus, the admission of the collateral crime evidence constituted error. Carbonell v. State, 47 So.3d 944 (Fla. 3d DCA 2010).

In addition, evidence involving a collateral crime may not be allowed to become a “feature of the trial.” Billie v. State, 863 So.2d 323, 328 (Fla. 3d DCA 2003); see also Bush v. State, 690 So.2d 670, 673 (Fla. 1st DCA 1997). In measuring whether collateral crimes evidence becomes a feature of a trial, appellate courts “do not solely measure the number of references the prosecution made to such evidence.” Wright v. State, 19 So.3d 277, 293 (Fla.2009) (citing Morrow v. State, 931 So.2d 1021, 1022-23 (Fla. 3d DCA 2006)). However, “voluminous references” to a collateral crime are an indication that the non-charged crime has become the focus of a trial. Id. (citing Fitzsimmons v. State, 935 So.2d 125, 129 (Fla. 2d DCA 2006)).

Here, 4 of the 6 State witnesses testified as to the collateral robbery. Furthei’, the collateral crime was discussed for approximately half of the State’s opening and closing statements. In addition, a videotape of the collateral robbery was introduced into evidence and replayed for the jury during closing. While the trial court and the State informed the jury this offense was being introduced for identity only, the use of a cautionary instruction is only one requirement for the trial court; the other is to limit the testimony so it does not become a feature of the trial. Morrow, 931 So.2d at 1022 (reversing even where limiting instruction was given to the State because the State ignored the instruction and made repeated references to the collateral crime). Given the substantial number of references to the collateral crime during opening statements, witness testimony, and closing arguments, we are required to reverse.

REVERSED.

HAWKES and WETHERELL, JJ., concur.


author: STEVENSON, J.

text:
    PRISM EDUCATIONAL SYSTEMS, INC., Appellant, v. QUEST ACHIEVEMENT CORPORATION, a Florida corporation, Appellee.
    No. 4D10-2173.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Robert M. Einhorn, Mikhael Buchanan and Devona A. Reynolds of Zarco Einhorn Salkowski & Brito, P.A., Miami, for appellant.
    No appearance for appellee.
   STEVENSON, J.

Prism Educational Systems, Inc., appeals the trial court’s dismissal of its motion for show cause hearing and request for prejudgment writ of replevin. Because Prism complied with the statutory requirements of section 78.055, Florida Statutes (2010), it was entitled to a show cause hearing and we reverse.

Section 78.055 requires that, prior to issuance of a writ of replevin, a plaintiff must file a complaint alleging the following:

(1) A description of the claimed property that is sufficient to make possible its identification and a statement, to the best knowledge, information, and belief of the plaintiff of the value of such property and its location.
(2) A statement that the plaintiff is the owner of the claimed property or is entitled to possession of it, describing the source of such title or right. If the plaintiffs interest in such property is based on a written instrument, a copy of said instrument must be attached to the complaint.
(3) A statement that the property is wrongfully detained by the defendant, the means by which the defendant came into possession thereof, and the cause of such detention according to the best knowledge, information, and belief of the plaintiff.
(4) A statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law.
(5) A statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if so taken, that it is by law exempt from such taking, setting forth a reference to the exemption law relied upon.

If the statutory requirements are sufficiently alleged in the complaint, “the court shall promptly issue an order directed to the defendant to show cause why the claimed property should not be taken from the possession of the defendant and delivered to plaintiff.” § 78.065(2).

Initially, Prism filed a complaint with the trial court, which alleged breach of contract but did not contain a count for replevin, and the trial court correctly denied its motion for a prejudgment writ of replevin show cause hearing. Subsequently, Prism filed an amended complaint which did raise a count for replevin and adequately alleged each of the statutory requirements. Prism’s second motion for a show cause hearing for prejudgment writ of replevin, the subject of this appeal, specifically referenced the amended complaint but was also denied. Because Prism complied with section 78.055, it was entitled to a show cause hearing and it was error for the trial court to deny the motion.

Accordingly, the judgment on appeal is reversed and this cause remanded for further proceedings.

Reversed and remanded.

WARNER and POLEN, JJ., concur.


author: LaROSE, Judge.

text:
    Damian SIMMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3971.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Damian Simms appeals his conviction and 28.5-month prison sentence. He pleaded no contest to loitering or prowling and felonious possession of ammunition, reserving his right to appeal the denial of his dispositive motion to suppress evidence. In reviewing that order, “we defer to the trial court’s factual findings if supported by competent, substantial evidence; we review the trial court’s application of the law to those factual findings de novo.” K.W. v. State, 906 So.2d 383, 384 (Fla. 2d DCA 2005) (citing Connor v. State, 803 So.2d 598, 608 (Fla.2001)). Because law enforcement officers lacked probable cause to arrest Mr. Simms for loitering or prowling, we reverse.

Section 856.021, Florida Statutes (2008), outlaws loitering or prowling:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

The statute aims “to punish a certain type of incipient criminal behavior before it ripens into the commission or attempted commission of a substantive criminal act.... ‘[Tits essential law enforcement rationale [is] justifying intervention to prevent incipient crime.’ ” D.A. v. State, 471 So.2d 147, 151 (Fla. 3d DCA 1985) (quoting Model Penal Code § 250.6 cmt. at 388-91 (1980)).

Background

St. Petersburg police officers received an anonymous tip at 10:30 p.m. on Halloween night 2008: a thin, dark-haired, six-foot-tall man wearing a flannel shirt and pants was trying to open car doors in the 1000 block of 18th Avenue North, a residential area. Responding to the tip, Officer Denmark drove east on 18th Avenue North past the 1000 block and saw no one matching the description given by the tipster. Officer Denmark did exit his cruiser to talk to a resident who was getting something from his car. Moments later, Office Beauvois arrived in the area. He parked his vehicle at the corner on 11th Street facing south. He looked east down 18th Avenue North toward 10th Street and saw only other officers. Suddenly, according to Officer Beauvois, he saw Mr. Simms standing between two vehicles parked end-to-end along the south curb of 18th Avenue North.

Mr. Simms stepped from between the vehicles onto the grass along the south curb, walked east alongside one or two cars, turned north (left) between two cars, and walked east on the street close to parked vehicles. Officer Beauvois radioed Officer Denmark that the subject “was coming on the street from between two vehicles.” Officer Denmark walked toward Mr. Simms and detained him. He asked Mr. Simms where he was coming from. Mr. Simms responded that he was coming from a friend’s house. At that point, Officer Denmark read him his Miranda rights. He again asked Mr. Simms where he was coming from, what he was doing, and if he had been ducking between the vehicles. Mr. Simms denied having been between the vehicles and said he was just walking home. Officer Denmark confirmed that Mr. Simms lived a few houses away. Mr. Simms would not divulge the name or address of the friend he had been visiting; he did not want the police to bother his friend.

Officer Denmark arrested Mr. Simms. The felony information charged him with loitering or prowling by “crouching between vehicles and ... endeavoring] to conceal himself....” When officers searched Mr. Simms incident to arrest, they found a .22 caliber bullet. Mr. Simms was also charged with felonious possession of ammunition. See § 790.28(1), Fla. Stat. (2008). He filed a motion to suppress, arguing that the officers lacked probable cause to arrest him for loitering or prowling. The trial court denied the motion. Mr. Simms pleaded no contest and reserved the right to appeal the denial of his motion. See Fla. R.App. P. 9.140(b)(2)(A)(i).

Analysis

The trial court concluded that the officers had two bases to stop Mr. Simms. First, the anonymous tip warranted the stop. But, “a truly anonymous tip has been consistently held to fall on the low end of the reliability scale, primarily because the veracity and reliability of the tipster is unknown.” Baptiste v. State, 995 So.2d 285, 292 (Fla.2008) (citing Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). “[F]or an anonymous tip to provide a reasonable basis for a Terry stop, the tip must contain specific details which are then comborated by independent police investigation.” Id. (citing J.L., 529 U.S. at 270-71, 120 S.Ct. 1375). The law requires corroboration of an anonymous tip’s assertion of illegality to prevent the tip from being used as a “tool of harassment.” See Baptiste, 995 So.2d at 298. Here, the accurate description of Mr. Simms’ appearance and location was not enough for a stop. J.L., 529 U.S. at 268-74, 120 S.Ct. 1375 (holding anonymous tip that young black male wearing plaid shirt and standing at particular bus stop was carrying gun lacked sufficient indicia of reliability to establish reasonable suspicion for Terry stop where officers did not observe gun); K.W., 906 So.2d at 385 (holding anonymous tip that man wearing gray tee shirt walking with five juveniles behind store had handgun in his waistband insufficient to justify detention where officer did not observe gun).

In J.L., the Court explained that, while an anonymous tipster’s accurate description of location and appearance is reliable in that it “will help the police correctly identify the person whom the tipster means to accuse, ... [it] does not show that the tipster has knowledge of concealed criminal activity.” 529 U.S. at 272, 120 S.Ct. 1375; see also Nettles v. State, 957 So.2d 689, 690 (Fla. 5th DCA 2007). The officers had no basis to stop Mr. Simms on suspicion of attempted burglary of automobiles. They did not observe him trying to open car doors. Even the trial court acknowledged that the officers lacked probable cause to arrest Mr. Simms based on the anonymous tip.

Alternatively, the trial court found a second basis for the stop: the circumstantial evidence suggested that Mr. Simms was loitering or prowling. Neither Officer Be-auvois nor Officer Denmark saw Mr. Simms crouching near automobiles. Officer Beauvois could only surmise that Mr. Simms had been crouching to conceal himself because he appeared to “just pop up.” The trial court concluded that Mr. Simms’ explanation of being with a friend did not dispel the officers’ alarm or concern for the safety of persons or property. Thus, the trial court ruled, the officers had probable cause to arrest Mr. Simms for loitering or prowling.

The offense has two elements. The first is loitering or prowling “in a place, at a time or in a manner not usual for law-abiding individuals....” § 856.021(1). We will not say that Mr. Simms’ presence on his own street at 10:30 p.m. was unusual for a law-abiding person. Indeed, Officer Denmark spoke to another resident outside on the same block at about the same time. However, the trial court found that Mr. Simms behaved in an unusual manner by crouching between cars. The second element of loitering or prowling is that the unusual behavior take place “under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property....” § 856.021(1). A defendant’s explanation of his presence is not an element of the crime. T.W. v. State, 675 So.2d 1018, 1019 (Fla. 2d DCA 1996) (citing K.R.R. v. State, 629 So.2d 1068, 1070 (Fla. 2d DCA 1994)).

Law enforcement officers may consider various circumstances in deciding whether alarm or concern is warranted: a person’s flight at an officer’s appearance, refusal to identify himself, or “manifest[ ] endeavor[ ] to conceal himself ... or any object.” § 856.021(2). Mr. Simms neither fled nor refused to identify himself. The trial court concluded that he tried to conceal himself. “In considering the second element, courts have found that the behavior must imminently threaten the safety of persons or property.” E.B. v. State, 537 So.2d 148, 149 (Fla. 2d DCA 1989) (citing State v. Ecker, 311 So.2d 104 (Fla.1975)); see also B.A.A. v. State, 356 So.2d 304, 305 (Fla.1978) (citing Ecker, 311 So.2d at 109); L.C. v. State, 516 So.2d 95, 96-97 (Fla. 3d DCA 1987). No one saw Mr. Simms crouching. Even if he did, our record does not support a conclusion that the officers had a reasonable concern for imminent threat to persons or property. Our precedent compels this result.

For example, in Woody v. State, 581 So.2d 966, 967 (Fla. 2d DCA 1991), we held that the officer’s concern for the safety of persons or property upon seeing appellant hiding in bushes “was not supported by any articulable facts which could reasonably warrant such a concern ..., [but] was based on pure speculation; there was nothing to suggest any independent criminal activity afoot.” We reversed the appellant’s conviction for loitering and prowling. Id.; see also Bowser v. State, 937 So.2d 1270, 1271-72 (Fla. 2d DCA 2006) (holding neither “possibly suspicious” eir-cumstances of appellant looking into cars in dark parking lot nor officer’s discovery upon questioning that appellant “seemed to be taking a roundabout route home” created requisite concern to establish loitering or prowling); L.C., 516 So.2d at 96-97 (holding suspicious behavior in high-crime area and insufficient explanation were not enough to elicit justified immediate concern for neighborhood safety necessary for loitering or prowling arrest).

The anonymous tip received by the officers did not create the level of imminent harm or danger needed for a detention and subsequent arrest for loitering and prowling. Officers may not base a decision to arrest for loitering or prowling on an anonymous tip. See Springfield, v. State, 481 So.2d 975, 978 (Fla. 4th DCA 1986) (holding officer could not in any way base his decision to arrest appellant for loitering or prowling on residents’ report of seeing black male in their back yard carrying something); cf. T.L.F. v. State, 536 So.2d 371, 372 (Fla. 2d DCA 1988) (holding officers could not properly consider bystander’s identification of appellant as burglary suspect in determining whether probable cause existed to arrest him for loitering or prowling). At most, it may have justified an attempted consensual encounter. Moreover, because loitering and prowling is a misdemeanor, “only a police officer’s own observations may be considered in determining whether probable cause exist[s] to make a warrantless arrest.” Freeman v. State, 617 So.2d 432, 433 (Fla. 4th DCA 1993) (citing Chamson v. State, 529 So.2d 1160, 1161 (Fla. 3d DCA 1988)); Springfield, 481 So.2d at 977); see also D.L.B. v. State, 685 So.2d 1340, 1342 (Fla. 2d DCA 1996).

Finally, we note that the loitering or prowling statute requires special care in its application. See Carroll v. State, 573 So.2d 148, 148 (Fla. 2d DCA 1991) (observing that the loitering or prowling statute “reaches the outer limits of constitutionality and must be applied with special care”) (citing D.A., 471 So.2d at 153); Rinehart v. State, 778 So.2d 331, 335 (Fla. 2d DCA 2000) (Altenbernd, J., concurring) (“Loitering has long been an offense that occasionally tempts good police officers to exercise power in a manner that is inconsistent with the standards of our free society.... Loitering statutes often face close constitutional challenges.”). As we stated in Woody, for example, “the loitering and prowling statute [was used] as a catchall provision to detain a citizen and prosecute him where there was insufficient basis to convict on some other charge.” 581 So.2d at 967 (citing cf B.A.A., 356 So.2d at 304 (stating that if officer believed appellant was soliciting prostitution by repeatedly approaching drivers stopped at intersection, officer should have arrested her for that instead of loitering or prowling)); see also Ecker, 311 So.2d at 111 (“The use of Section 856.021 as a ‘catchall’ criminal offense may result in a finding that the statute has been unconstitutionally applied.”); L.C., 516 So.2d at 97 (“It cannot be emphasized enough that the loitering and prowling statute is not to be used as a ‘catchall’ provision whereby police may arrest citizens where there is no other basis which would justify their detention.”). We reach the same conclusion here. The officers lacked a sufficient basis to detain Mr. Simms for attempted burglary. They also lacked probable cause to arrest him for loitering or prowling. Accordingly, the trial court should have granted his motion to suppress evidence. We are compelled to reverse.

Reversed and remanded with directions for the trial court to discharge Mr. Simms.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

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

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that officer with reasonable suspicion that an individual may be about to commit a crime and may be armed and dangerous may pat down his outer clothing to discover weapons if officer's reasonable inquiries do not dispel his reasonable fear for his own or others’ safety)..

      . The State does not argue that the officers engaged Mr. Simms in a consensual encounter. See Popple v. State, 626 So.2d 185, 186 (Fla. 1993) (describing the three levels of police-citizen encounters), accord Greider v. State, 977 So.2d 789, 792 (Fla. 2d DCA 2008).


author: MAY, J.

text:
    Richard FURTADO, individually and as Personal Representative of the estate of Marilou Forrest, Appellant, v. Jason YUN CHUNG LAW a/k/a Yun Chung Jason Law, in his individual capacity, and Ric Bradshaw, in his official capacity as Sheriff of Palm Beach County, Appellees.
    No. 4D09-3223.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.

      Louis Silber of Silber, Valente & Davis, West Palm Beach, James K. Green of James K. Green, P.A., West Palm Beach, and Maria Kayanan of American Civil Liberties Union Foundation of Florida, Inc., Miami, for appellant.
    Fred H. Gelston, West Palm Beach, for appellee, Jason Yun Chung Law.
    Harriet R. Lewis of Lewis, Stroud & Deutsch, P.L., Boca Raton, for appellee, Ric Bradshaw.
   MAY, J.

In this age of increased awareness of mental health issues, there is still so much to be done to ensure the safety of the public as well as those suffering from mental illness. This case illustrates why. The plaintiff appeals a summary judgment in favor of the Sheriff and a deputy, which resulted from the shooting death of the plaintiffs wife during the execution of a Baker Act certificate. For the reasons that follow, we affirm.

The tragic death of the plaintiffs wife resulted when deputies from the Palm Beach County Sheriffs Office attempted to take the plaintiffs wife into custody on a Baker Act certificate for transportation to a mental health facility for observation and treatment. The complaint consisted of four counts against the Sheriff, and three counts against the individual deputy involved in the shooting. The four counts against the Sheriff included a wrongful death claim brought under 42 U.S.C. § 1983, survivorship damages under § 1983, a wrongful death claim under Florida law, and a claim under the Americans with Disabilities Act (ADA). The counts against the deputy included the wrongful death and survivorship claims under 42 U.S.C. § 1983, and the wrongful death claim under state law.

The facts are undisputed. The decedent’s husband contacted the Sheriffs Office to transport his wife to a mental health facility, pursuant to a Baker Act certificate. The certificate indicated that the decedent was in a “persistent severe delusional and agitated state,” had a “long history of severe depression,” and had been “walking around the house with knives....” She had “essentially included everyone in her delusional system, including her husband and [the psychiatrist]” and was “probably holding knives at the moment.” “There [was] a substantial likelihood that without care or treatment [she] w[ould] cause serious bodily harm to [her]self and others.” The Baker Act Certificate was signed at 9:00 a.m. on March 27, 2006.

Around 10:00 a.m. on March 27, 2006, a deputy was dispatched to the scene. The deputy requested back-up before he arrived, and a third deputy was requested at the scene. The husband was standing outside the home when the deputies arrived. He indicated that he wanted the deputies to take the decedent to a mental health facility. He informed them that the decedent was in the home, had tried to commit suicide a few days earlier, kept knives at her side for protection, and was suffering from delusional paranoia.

The three deputies decided that the lead deputy would go in front with his service weapon un-holstered; the back-up deputy would follow with his Taser drawn; and the third deputy would enter last with his service weapon un-holstered. Before searching the home, the lead deputy called for the decedent. Receiving no response, the deputies searched the home.

After searching the home and securing all areas, except the master bedroom and bathroom, the lead deputy heard a door close; the back-up deputy smelled cigarette smoke coming from the master bedroom. Before the deputies approached the bedroom, they announced the Sheriffs Office was present. The lead deputy called the decedent again and indicated that he wanted to speak with her.

The deputies searched and secured the master bedroom and then entered the bathroom. The lead deputy did not know if she was hurting anyone, cutting herself, or trying to kill herself. When he entered the bathroom, he announced their presence, indicated that they were there to help her, and told her to come out of the bathroom. The decedent rose from behind a door near the commode and came at the lead deputy with a knife raised over her head. The back-up deputy used his Taser, but there was no evidence that it struck her. The decedent continued to move toward the lead deputy. The lead deputy fired his service weapon. The bullet struck her in the chest, causing her to fall with the knife remaining in her hand. The lead deputy reported the shooting and tried to perform CPR on the decedent until the paramedics arrived. The decedent was later pronounced dead.

The former husband filed a complaint against the lead deputy individually and the Sheriff in his official capacity, alleging section 1983 wrongful death claims, surviv-orship damages, a Florida wrongful death claim, and a claim under the ADA against the Sheriff alone. The parties stipulated that the lead deputy was acting under color of state law and that the decedent had a mental disability within the meaning and purview of Title II of the ADA.

Following extensive discovery, the Sheriff and deputy filed a joint motion for summary judgment. They attached extensive appendices, containing deposition transcripts, sworn statements, and affidavits. In an affidavit, a Captain of the Sheriffs Office opined that the Sheriff does not tolerate any deviation from his policies on the use of deadly and non-deadly force, and “otherwise does not authorize or permit deputy sheriffs to use excessive deadly force or excessive non-deadly force.” Another Captain explained that deputies must attend and complete training courses in the use of force at least once per year.

The Sheriffs Office provides specialized classes each year to address the circumstances presented by the mentally ill, and to provide needed tools to handle encounters with them. These classes are part of the Palm Beach County Crisis Intervention Team Program (CIT). The CIT addresses suicide prevention, dealing with suicidal persons and persons who pose a threat to themselves or others, communicating with the mentally ill, and techniques for calming mentally ill persons. Although participation is voluntary, more than 200 deputies in the Sheriffs Office have been trained as CIT officers, including the lead deputy in this case.

In opposition to the motion for summary judgment, the husband filed an expert affidavit of a retired police chief. The expert opined that the Sheriff was deliberately indifferent to, and exhibited reckless disregard for, the safety of the decedent and other mentally ill persons. He based his opinion on the Sheriffs failure to recall efforts to implement the CIT in Palm Beach County, what training his deputies received concerning the mentally ill, and the lack of a dispatch protocol. The expert further opined that the ADA requires agencies to review their services, policies, and practices for compliance with the ADA, and the Sheriffs Office did not have a policy or protocol for encounters with the mentally ill.

The expert further opined that the three deputies “violated every recommended procedure recognized and accepted in the law enforcement profession for dealing with the mentally ill....” The lead deputy violated recognized protocols by not allowing the husband into the home, failing to learn the layout of the home, opening the bathroom door before talking to the decedent, and taking only a couple of minutes from the time of entry to the shooting. In his opinion, no reasonable officer would have created the face-to-face encounter with the decedent, and should have tried to calm the situation to avoid the use of deadly force.

The trial court granted the joint motions and entered a final judgment, from which the plaintiff now appeals.

The standard of review on orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). Summary judgment should be granted “only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Id.

The plaintiff argues that genuine issues of material fact remain between the expert’s affidavit and the defendants’ testimony and affidavit. In particular, the plaintiff argues that the totality of the circumstances must be viewed and not just what transpired when the deputies entered the bathroom. We agree that the totality of circumstances should be reviewed, but considering the totality of the circumstances, we find no error in the trial court’s entry of summary judgment.

Section 1983 Claims Against the Sheriff and the Deputy

Four counts of the complaint alleged violations of section 1983. Two counts alleged excessive force resulting in wrongful death against the Sheriff and the lead deputy, and two counts alleged the same excessive force resulting in the husband’s survivorship claims against each.

“To state a claim under 42 U.S.C. § 1983, ‘a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.’ ” Abraham v. Raso, 183 F.3d 279, 287 (3d. Cir.1999) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). In establishing a constitutional violation by alleging a claim of excessive force, a plaintiff must show that a seizure occurred and it was unreasonable. Id.

“[AJpprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “[R]easonableness depends on not only when a seizure is made, but also how it is carried out.” Garner, 471 U.S. at 7, 105 S.Ct. 1694.

“Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.2008). The officer has the initial burden of demonstrating that he was acting within his discretionary authority. McGory v. Metcalf, 665 So.2d 254, 258-59 (Fla. 2d DCA 1995). If the initial burden is met, the burden shifts to the plaintiff to show the lack of good faith on the deputy’s part by demonstrating his conduct violated clearly established law. Id. at 259.

Justice Kennedy explained the role of qualified immunity in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009):

In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” The privilege is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” As a result, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”

Id. at 200-01, 129 S.Ct. 808 (emphasis in original) (citation omitted).

The question to be answered is: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201, 129 S.Ct. 808. The inquiry must be taken “in light of the specific context of the case....” Id.

Here, the defense of qualified immunity shields the lead deputy. Cases on excessive force vary on whether similar actions are objectively reasonable and whether that decision belongs to a jury. Compare Abraham v. Raso, 183 F.3d 279 (3d Cir.1999), with Kesinger v. Herrington, 381 F.3d 1243 (11th Cir.2004). What is clear is that the court must review the totality of the circumstances in determining whether the deputy’s actions were objectively reasonable, and the plaintiff bears the burden of establishing a lack of good faith.

Looking at the totality of circumstances, the decedent posed a threat to herself and to the deputies because the undisputed facts established that the decedent was suicidal, had armed herself with knives, and was suffering from delusional paranoia. Also undisputed is that the decedent lunged at the deputies with a knife raised over her head. Imminent danger was present, and there was no showing that the lead deputy lacked good faith in his actions. See Kesinger, 381 F.3d at 1249-50 (remanding the case for entry of a summary judgment in favor of an officer who shot a man based upon qualified immunity); McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1246 (11th Cir.2003) (“[T]he Constitution permits the use of deadly force ... against a suspect who poses ... an imminent threat of danger to a police officer or others.”). See also Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others,” it is not unreasonable to use deadly force.); and McGory v. Metcalf, 665 So.2d 254 (Fla. 2d DCA 1995) (finding that the officer’s motion for summary judgment should have been granted where the officer had probable cause to believe that victim posed an imminent threat of harm to him when victim pointed a gun at officer).

For this same reasoning, the trial court correctly entered summary judgment for the Sheriff on the section 1983 wrongful death claim. As the deputy committed no constitutional violation, the claim against the Sheriff must fail. See Garczynski v. Bradshaw, 573 F.3d 1158, 1171 (11th Cir.2009) (“Absent a constitutional violation, we need not explore whether PBSO’s policies regarding crisis intervention training violated Garczynski’s constitutional rights.”).

Further, “there are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability under [section] 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). “[T]he inadequacy of police training may serve as the basis for [section] 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at 388, 109 S.Ct. 1197 (emphasis added). To establish deliberate indifference, the “plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998).

Without notice of a need to train, a municipality is not liable as a matter of law. Id. at 1351. A “ ‘single incident’ of misconduct, without other evidence, cannot provide the basis for municipal liability under [section] 1983” because “[s]uch a result would be the equivalent of imposing respondeat superior liability upon the municipality.” Bordanaro v. McLeod, 871 F.2d 1151, 1161 n. 8 (1st Cir.1989) (emphasis in original).

The Sheriff presented evidence that crisis intervention training was available to the deputies on a voluntary basis and this deputy had taken the training. While tragic, this was an isolated incident. There was no showing of multiple incidents that would place the Sheriff on notice of a need for more training. Without proving deliberate indifference, the section 1983 claim against the Sheriff cannot be sustained.

Florida Wrongful Death Act Claims

The plaintiff next argues the trial court erred in entering summary judgment on the state wrongful death claim against the Sheriff. He argues that section 30.07, Florida Statutes (2006) imposes liability against the Sheriff for the “acts and neglect” of his deputies and for failing to adopt policies and training procedures for police interactions with persons with mental illness. Without articulating that this section of the initial brief refers to the state law wrongful death claim against the Sheriff, it appears that the plaintiff relies on the “number of PBSO deputy encounters with mentally ill people” to demonstrate “a need to develop strategies, policies, procedures and practices that would allow such encounters to end benignly, for all parties, in the appropriate seizure and transportation to mental health facilities.”

Section 30.07 provides: “Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.” § 30.07, Fla. Stat. (2006). While this statute can serve as a basis for liability, section 768.28, Florida Statutes (2006), and the immunity it provides must be overcome.

Subsection 768.28(9)(a) specifically provides that “[n]o officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9), Fla. Stat. (2006).

“Importantly, the immunity provided by section 768.28(9)(a) is both an immunity from liability and an immunity from suit, and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial.” Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006) (emphasis in original). Just as Justice Kennedy discussed qualified immunity with regard to section 1983 claims in Saucier, qualified immunity in a state claim is also an issue the trial court should address as soon as possible because the trial court “must act as a gatekeeper ... and should terminate civil proceedings when the immunity applies.” Id.

In fulfilling this obligation, “the trial judge should ask whether a reasonable trier of fact could possibly conclude that the conduct was willful and wanton, or would otherwise fall within the exceptions to the statute.” Id. Here, there was no evidence of bad faith, malicious purpose, or a wanton and willful disregard of human rights or safety. The trial court correctly granted summary judgment on this claim.

The ADA Claim Against the Sheriff

The plaintiff next argues that summary judgment on the ADA claim was error because the Sheriff’s Office “lacked policies and procedures required by the ADA, to provide reasonable accommodations, in non-exigent circumstances, for [the decedent’s] disability.” See 42 U.S.C. §§ 12112,12134 (2006).

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” § 12112. Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ....”§ 12112(b)(5)(A). Significantly, however, exigent circumstances absolve public entities of their duty to provide reasonable accommodations. Waller v. City of Danville, Va., 556 F.3d 171, 174-75 (4th Cir.2009); Hainze v. Richards, 207 F.3d 795, 801 (5th Cir.2000).

In Waller, a mentally disabled man held a woman hostage in his apartment, leading the man to be fatally shot by police officers. 556 F.3d at 172-73. When the police tried speaking to the man through a back door, the man used threatening language. Id. at 173. The threat led the police to cease negotiations and force their way into the apartment. Id. After the man “came toward the officers twice, swinging what appeared to be a scythe and brandishing what looked like a knife, three officers shot and killed him.” Id. An ADA claim was filed against the police. Id. The Fourth Circuit held that the officers did not fail to comply with any duty to reasonably accommodate the man.

“[E]xigency” is not confined to split-second circumstances. Although the officers did not face an immediate crisis, the situation was nonetheless unstable: the officers could not see or speak to [the hostage], [the suspect] implied that he had weapons, and [ ] was growing more and more agitated. The standoff could have taken a dark turn quickly and led to the loss of [ ] life. If officers were not actually making split-second decisions, they were nonetheless operating under the pressure of time from the start. Just as the constraints of time figure in what is required of police under the Fourth Amendment, they bear on what is reasonable under the ADA.

Id. at 175 (citation omitted).

In Hainze, a woman requested that police transport her suicidal nephew to a mental facility. 207 F.3d at 797. The officer observed the nephew outside a convenience store where he was standing next to an occupied truck with a knife in his hand. Id. The deputy exited his vehicle and ordered the nephew away from the truck. Id. When the nephew was within four to six feet, the deputy fired two shots into his chest. Id.

The nephew sought relief under Title II of the ADA for the Sheriffs Office’s failure to train its deputies to protect mentally ill individuals. Id. at 798. The nephew argued the deputy failed to calm him, give him space by backing away, or attempt to defuse the situation. Id. at 800-01. In holding that the deputy’s use of excessive force was not actionable under the ADA, the Fifth Circuit explained:

Law enforcement personnel conducting in-the-field investigations already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations. To require the officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents.

Id. 801.

Here, similar to Waller and Hainze, exigent circumstances existed. The decedent was suicidal, delusional, and known to possess knives. The officers prepared for their encounter by having one deputy ready with a Taser and the other deputies with unholstered guns. When they attempted to locate her, she suddenly appeared from behind a door in the bathroom and lunged at them, holding a knife over her head. At that moment in time, the deputies’ lives were threatened. Exigent circumstances existed to excuse compliance with the ADA. We do not agree with the plaintiff that the deputies created the exigent circumstance. The trial court properly entered summary judgment on this claim as well. We therefore affirm the summary judgment on all claims.

Affinned.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . A Baker Act certificate is issued by a physician, clinical psychologist, psychiatric nurse, or other authorized person, who examines a person "and finds that the person appears to meet the criteria for involuntary examination" because "there is reason to believe that the person has a mental illness and because of his or her mental illness ... [tjhere is a substantial likelihood ... the person will cause serious bodily harm to ... herself or others in the near future ...." § 394.463(1), (l)(b)2, and (2)(a)3, Fla. Stat. (2009).

      . The expert’s affidavit also reflected concern about the lead deputy's failure to return to the Field Training Officer Program, which was recommended by a supervisor following a 1999 incident. Another supervisor signed off on a form indicating the deputy had completed this training.

      . According to the expert, the protocol involves: "(1) [] attempting to calm the situation; (2)[] assuming a non-threatening manner; (3)[ ] moving slowly so as not to excite the individual; (4)[ ] providing assurance that the police are there to help; (5)[ ] communicating with the individual ... (6)[ ] not threatening the individual in any manner; and (7)[ ] gathering any helpful information about the individual from family members.”

      . We find the plaintiff's reliance on Allen v. Muskogee, Oklahoma, 119 F.3d 837, 841 (10th Cir.1997) and Grandstaff v. City of Borger, Texas, 767 F.2d 161, 170-72 (5th Cir.1985) misplaced. In Allen, the City was liable because it trained its officers to handle suicidal persons in a manner contrary to proper police procedures and principles. 119 F.3d at 843. In Grandstaff, the City had a policy of disregarding human life and safety. 767 F.2d at 171. Unlike Allen and Grandstaff, there was no proof that the Sheriff’s actual policy was contrary to accepted standards. There was simply insufficient proof to establish the requisite deliberate indifference for an imposition of liability. See Carr v. Castle, 337 F.3d 1221, 1229-30 (10th Cir.2003).

      . The plaintiff’s brief fails to address the state law claim against the deputy. As such, the issue has been waived. Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). Even if the claim had not been waived, there was no evidence that the deputy "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights ....”§ 768.28(9)(a).


author: MORRIS, Judge.

text:
    Kenneth D. GREENWOOD and Merrick Rice, Petitioners, v. STATE of Florida, Respondent.
    No. 2D10-4143.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2011.

      Julianne M. Holt, Public Defender, and Whitney B. Scott, Assistant Public Defender, Tampa, for Petitioners.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Respondent.
   MORRIS, Judge.

Keith Greenwood and Merrick Rice filed a joint petition for writ of habeas corpus challenging the procedure employed by the circuit court to determine pretrial release at their first appearance hearing. A petition for writ of habeas corpus in the appellate court is the appropriate way to challenge a trial court’s ruling on the conditions of pretrial release. See State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409, 412-13 (Fla.1973); Hollander v. Crowder, 952 So.2d 1289, 1289 (Fla. 4th DCA 2007). Even though both defendants subsequently filed successful motions to reduce bond, the petition is not moot because the error is capable of repetition but evading review. See Kelley v. Rice, 800 So.2d 247, 250 (Fla. 2d DCA 2001).

Article I, section 14 of the Florida Constitution guarantees the right to pretrial release of all defendants charged with criminal offenses except those charged with capital felonies and certain life felonies. Florida Rule of Criminal Procedure 3.131(b)(1) states that unless the State has filed a motion for pretrial detention pursuant to rule 3.132, the court, at first appearance, “shall conduct a hearing to determine pretrial release.” Rule 3.131(b)(2) states that “[t]he judge shall at the defendant’s first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance.” Rule 3.131(b)(3) states:

In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law; the weight of the evidence against the defendant; the defendant’s family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation and/or treatment, and mental condition; the defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and probability of danger that the defendant’s release poses to the community; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding or is on probation, parole, or other release pending completion of sentence; and any other facts the court considers relevant.

In the present case, the petitioners are West Virginia residents with no apparent Florida ties. They were both arrested and charged with trafficking in oxycodone and conspiracy to traffic in oxy-codone. At the first appearance hearing, the State advised the trial court that both petitioners faced a twenty-five-year minimum mandatory prison sentence. Based on this information, the court set a total bond amount for each petitioner of $250,000; $200,000 for count one and $50,000 for count two. While the trial court, in setting bond, may consider all of the factors set forth in rule 3.131(b)(3), the primary starting point is the nature of the offense charged. This is especially true in drug cases, which the legislature has singled out as being appropriate for high bonds. See § 903.046(2)(h), Fla. Stat. (2010). It is well settled that the trial court’s exercise of its sound discretion in determining an appropriate bond comes to this court cloaked with the presumption of correctness. See State ex rel. Smith v. Untreiner, 246 So.2d 158, 159 (Fla. 1st DCA 1971). However, these petitioners do not challenge the amount of their bonds, which were ultimately reduced at a subsequent bond hearing. Rather, they challenge the sufficiency of their first appear-anee hearing, contending that the trial court would not allow them to address certain factors set forth in rule 3.131(b)(3).

When challenged by trial counsel at the first appearance hearing in regard to the court’s obligation to consider the factors set forth in section 903.046(2), which counsel contended was required by the Fourth District’s decision in Hollander, the court responded, “I do [consider them].” However, instead of allowing the petitioners to testify accordingly under oath, the court directed them to file motions for bond reduction, at which time they would be given a much greater opportunity to present evidence so that the matter could be more carefully considered by the court. At Greenwood’s first appearance hearing, the trial court heard argument from trial counsel regarding the defendant’s employment history and his status as the sole provider for his family. With regard to Rice, in denying trial counsel’s request that he be put under oath to testify, the court stated, “[The] court has concerns that you might say something also to violate your Fifth Amendment right to remain silent.”

The trial court’s obligation is to hold a first appearance hearing. The court may exercise reasonable discretion in determining the appropriate amount of time for the hearing and the number of witnesses who may testify. See Brown v. State, 894 So.2d 137, 154 (Fla.2004) (holding that “matters regarding the length of legal argument and the length of a proceeding generally fall within a trial court’s discretion”). Nevertheless, the court must at least give the defense a reasonable amount of time to respond to the State’s presentation and, at the very least, must allow the defendant, upon request, to be sworn in and to briefly testify as to the relevant factors.

Given the long list of factors to be considered under rule 3.131 and the significant number of defendants present at the typical first appearance hearing on any given day in a busy urban court, it can be very challenging for a trial judge to provide an extensive hearing for each defendant within the time allotted at a first appearance. Clearly, a more thorough hearing on the matter could be held on a motion to reduce bond, which would allow trial counsel time in which to locate and present witnesses and to otherwise be prepared. Additionally, at a hearing on a motion to reduce bond, more time would likely be available to the defendant to present his case because such a motion probably would be heard on a far less congested calendar. Even in light of these practical realities, however, it is error for the trial court to refuse to give defendants at least a very brief opportunity to be heard at the first appearance hearing if they insist on it, even if defendants might be better served by a later hearing.

Accordingly, the petition is granted.

WHATLEY and SILBERMAN, JJ., Concur.

      . Both petitioners appeared on the same day and were represented by the Office of the Public Defender.

      . Section 903.046(2)(h) states:
      It is the finding and intent of the Legislature that crimes involving drugs and other controlled substances are of serious social concern, that the flight of defendants to avoid prosecution is of similar serious social concern, and that frequently such defendants are able to post monetary bail using the proceeds of their unlawful enterprises to defeat the social utility of pretrial bail. Therefore, the courts should carefully consider the utility and necessity of substantial bail in relation to the street value of the drugs or controlled substances involved.

      . The factors to be considered in determining whether to release a defendant on bail or other conditions that are set forth in rule 3.131(b)(3) are also contained in section 903.046(2), except that the rule also allows the trial court to consider the defendant’s "need for substance abuse evaluation and/or treatment.” While the rule states that the trial court "may” consider the various factors, the statute states that the trial court "shall” consider them.


author: DAVIS, Judge.

text:
    Anthony Jack WILSON, Appellant, v. Annette SMITH, Appellee.
    No. 2D09-1228.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2011.
    Anthony Jack Wilson, pro se.
    No appearance for Appellee.
   DAVIS, Judge.

Anthony Jack Wilson challenges the order approving the change to his minor daughter’s name at the request of the child’s mother and the order denying his motion for rehearing. Because in this instance due process entitles Wilson to a hearing on the exceptions to the magistrate’s report and recommendations that he filed with the trial court prior to the adoption of such, we reverse the order approving the name change.

Wilson is currently proceeding pro se while an inmate of the Florida Department of Corrections. After he was incarcerated, the mother of one of his children sought to have that child’s name changed. After a general magistrate’s hearing, at which Wilson appeared telephonically, a report and recommendation in favor of the name change was filed with the trial court. Wilson filed exceptions to the report, and the trial court ordered him to provide a transcript of the hearing held before the magistrate and to schedule a hearing to address his exceptions.

The record shows that Wilson immediately began to seek transcription of the recorded hearing. Despite his repeated, documented requests, Wilson claims he was never notified when the recorded CD of the hearing finally became available. As soon as the audio recording was made a part of the court record, the trial court adopted the magistrate’s report and recommendations and entered an order approving the name change. Wilson filed a motion for rehearing alleging, in part, that the trial court had failed to rule on his motion to be declared indigent and to have the record transcribed, that the clerk had provided him with erroneous information regarding his requests, and that his rights of due process and access to the courts had been impeded. The motion for rehearing also provided attachments documenting Wilson’s repeated attempts to obtain the transcript, including a copy of an attempt to schedule a hearing before the trial court. The trial court denied Wilson’s request for rehearing.

An incarcerated parent’s due process rights are impinged in proceedings to change the name of a child where a hearing is requested but access to the hearing is not provided to the incarcerated parent. See generally Gill v. Dean, 575 So.2d 311, 312 (Fla. 2d DCA 1991); see also Alfonso v. Alfonso, 823 So.2d 261, 262 (Fla. 3d DCA 2002) (concluding that where an incarcerated party requests to be present and put forth evidence at a hearing on a family law matter, the trial court should afford the person such an opportunity). Furthermore, it is error for the trial court to adopt a magistrate’s report in a family law matter without first holding a hearing on any timely filed exceptions to that report. Simmons v. Simmons, 16 So.3d 878, 878 (Fla. 5th DCA 2009).

Because the trial court here should have allowed Wilson the opportunity to obtain the necessary transcript and be heard on his exceptions to the magistrate’s report and recommendations, we reverse the order approving the child’s name change and remand with instructions that Wilson be provided the opportunity to obtain a copy of the required transcript and to present to the court his exceptions to the magistrate’s report and recommendations. We note that Wilson’s substantive arguments related to the evidence presented to the magistrate and the findings made in regard to that evidence must necessarily be addressed by the trial court on remand prior to any review by this court. As the transcript of the hearing is now available to Wilson, the trial court may immediately schedule a hearing, either in person or telephonically, to allow Wilson the opportunity to be heard prior to entering the final order on the motion to change the child’s name.

Reversed and remanded.

SILBERMAN and VILLANTI, JJ„ Concur.


author: PER CURIAM.

text:
    Antonio HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3909.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Kayo E. Morgan, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Antonio Hall appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We reverse in part.

Hall entered a plea in August 2007. Within two months he moved to vacate the plea. One of his claims concerns counsel’s representation that if Hall pleaded, his record would be sealed or expunged. Hall alleges that after he entered into the plea he received a letter from counsel advising that due to the nature of the charges he was not eligible to have his record sealed. Hall alleges if properly advised, he would have proceeded to trial.

We reverse and remand for further review of this claim. See Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008). In doing so, we note that this is not a case involving the use of the conviction to enhance a sentence, nor is it a situation where the movant waited for any adverse consequence associated with counsel’s alleged advice. See State v. Dickey, 928 So.2d 1193 (Fla.2006); Phillips v. State, 960 So.2d 29 (Fla. 4th DCA 2007).

Accordingly, the trial court’s order summarily denying the defendant’s claim for post-conviction relief is reversed as to this point, and the case is remanded for an evidentiary hearing thereon. We affirm the trial court’s summary denial of the other ground raised in defendant’s motion.

Affirmed in part, reversed in part, and remanded.

TAYLOR, CIKLIN and GERBER, JJ., concur.


author: ROSENBERG, ROBIN L., Associate Judge.

text:
    Shlomo RASABI, a/k/a Steven Rasabi, Landmark Finance Corporation, a Florida corporation, Best Terms Motor Sales, Inc., f/k/a Best Terms Motor Cars, Inc., a Florida corporation, and Landmark Funding, Inc., a Florida corporation, Appellants, v. David SALOMON, as Trustee for the Estate of Elliot Gindi, Appellee.
    No. 4D09-3983.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Matthew R. Simring of Law Offices of Matthew R. Simring, Tamarac, and Nancy Little Hoffmann of Nancy Little Hoff-mann, P.A., Fort Lauderdale, for appellants.
    Allen H. Libow.and Melissa Melzer of Berger Singerman, P.A., Boca Raton, for appellee.
   ROSENBERG, ROBIN L., Associate Judge.

This is an appeal of a final judgment enforcing a non-binding arbitration award in favor of David Salomon, as trustee for the Estate of Elliot Gindi. Following the arbitration award, the parties filed a joint motion for trial de novo. The issue presented in this appeal is whether the trial court erred in entering a final judgment on the arbitration award, where the joint motion for trial de novo was timely filed. We reverse, holding the trial court erred in entering a final judgment based on a finding that no timely motion for trial was filed.

The following facts and dates are relevant to the issue raised on appeal: On May 16, 2005, the trial court entered an agreed order providing that the case would be submitted to arbitration followed by mediation. The arbitration was conducted on September 29, 2005, and the arbitration award was issued on October 10, 2005; the arbitration award was served on the parties by mail. Pursuant to Florida Rule of Civil Procedure 1.820(h), the parties had twenty (20) days to file a motion for trial and, because service was by mail, under Florida Rule of Civil Procedure 1.090(e), five (5) days were added to the time to file the motion. The deadline to file the motion for trial was November 4, 2005. The parties filed them joint motion for trial de novo and a joint motion to accept the late filing of joint motion for trial de novo on November 5, 2005. The filing was one day late due to Hurricane Wilma, which resulted in the closure of the Seventeenth Judicial Circuit courthouse during the weeks of October 24 and October 31, 2005. Due to the hurricane, the Supreme Court issued Administrative Order AOSC05-81, which addressed an emergency request to extend time periods under all Florida Rules of Procedure for the Seventeenth Judicial Circuit. The Administrative Order, in relevant part, reads:

2. In the Seventeenth Judicial Circuit, all time limits authorized by rule and statute applicable to civil (inclusive of circuit and county) ... proceedings are tolled from 5:00 p.m. on Friday, October 21, through 8:30 a.m. on Monday, November 14, 2005, nunc pro tunc.

The Administrative Order had the result of extending the time for filing the joint motion under Florida Rule of Civil Procedure 1.820(h). See R.J. Reynolds Tobacco Co. v. Kenyon, 826 So.2d 370, 371 (Fla. 2d DCA 2002) (holding that administrative order by chief circuit court judge establishing Christmas eve as a “ ‘legal holiday’ for purposes of computing the time for the service” of a motion controlled timeliness of service). As the joint motion was filed well within the tolling period set forth in the Administrative Order, the motion was timely filed. The trial court erred in determining that the joint motion for trial de novo was filed untimely and in entering a final judgment on the arbitration award. The case is remanded to the trial court to conduct a trial de novo.

Reversed and remanded.

TAYLOR and GERBER, JJ., concur.


text:
    Eliot Lewis PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-67.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Eliot Lewis Pearson appeals an order revoking probation and sentencing him to concurrent sentences totaling fifteen years. We reverse because immediately after the evidentiary portion of the hearing, the trial court announced its ruling that the violations were supported by the evidence without allowing closing argument. When defense counsel requested that she be allowed to make a closing argument, the trial judge refused, stating that he could not “imagine anything that [defense counsel] would say that would change [the] ruling.” We note that the most serious charge was the offense of felony battery and defendant had claimed self-defense. Although the court later heard argument on the sentence which was to be imposed, the failure to allow argument on the threshold issue of whether defendant violated his probation was error. See Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (citing Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985)).

Accordingly, we hold that the abrupt and perfunctory manner in which the trial court handled the latter part of this probation revocation proceeding was error and we reverse for a new hearing. See Holley v. State, 48 So.3d 916, 922 (Fla. 4th DCA 2010) (reversing where trial court’s limit on cross-examination and argument from counsel on motion to suppress reflected “a consistent series of unnecessary restrictions on [the] defendant’s right to confront, argue, and present his case”). On remand, we direct that this case be assigned to another trial judge.

Reversed and remanded.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.


text:
    Alexander G. BECERRA, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, and Lowe’s Home Center, Inc., Appellees.
    No. 4D10-513.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Alexander G. Becerra, West Palm Beach, pro se.

      M. Elaine Howard, Deputy General, Counsel, Tallahassee, for appellee, State of Florida, Unemployment Appeals Commission.
   PER CURIAM.

Appellant appeals the decision of the Unemployment Appeals Commission affirming a referee’s decision that he was disqualified for benefits. The referee determined that appellant was disqualified from benefits because he voluntarily quit his job to accept other employment. This finding was supported by a handwritten note signed by appellant which stated:

To whom it may concern I Alex Becerra am giving my 2 week notice, my last day of employment at Lowes will be August 11[,] 2009. Thank you for everything[.]

Substantial, competent evidence thus supports the findings of the referee, which were adopted by the Commission. Although appellant now complains about the notice of the hearing with the referee, he did not raise this issue before the Commission, and therefore has waived it.

Affirmed.

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


author: WALLACE, Judge.

text:
    Micah Lynn LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2283.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2011.
    James Marion Moorman, Public Defender, and Bruce G. Howie, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Micah Lynn Lawson appeals his judgment and sentences for burglary of a dwelling with assault or battery, lewd or lascivious battery against an elderly person, and abuse of an elderly person. Mr. Lawson argues, and the State concedes, that his prosecution on the charges of lewd or lascivious battery and elder abuse is barred by the applicable statute of limitations. For this reason, we vacate the judgment and sentences on these two charges. Mr. Lawson’s three other arguments are without merit and do not warrant discussion. Accordingly, we affirm his judgment and sentence on the burglary charge.

I. THE FACTS

On the evening of January 26, 2003, a young man broke into the home of a seventy-six-year-old woman in Lee County. The intruder committed a sexual assault on the elderly resident. The identity of the woman’s assailant remained undetermined for several years.

In November 2008, the Florida Department of Law Enforcement notified the Lee County Sheriffs Office that DNA evidence obtained from the victim’s person matched Mr. Lawson’s DNA. On November 20, 2008, the State Attorney for the Twentieth Judicial Circuit filed an information charging Mr. Lawson with three crimes arising out of the incident: count one, burglary of a dwelling with assault or battery in violation of section 810.02(2), Florida Statutes (2002), a first-degree felony punishable by life; count two, lewd or lascivious battery upon an elderly person in violation of section 825.1025(2), Florida Statutes (2002), a second-degree felony; and count three, abuse of an elderly person in violation of section 825.102(1), a third-degree felony.

A jury found Mr. Lawson guilty as charged on all three counts. The trial court sentenced Mr. Lawson to sixty-five years’ imprisonment for the burglary charge, fifteen years’ imprisonment for the lewd or lascivious battery, and five years’ imprisonment for the elder abuse. The sentences were designated to run concurrently. This appeal followed.

II. DISCUSSION

Mr. Lawson correctly argues that the statute of limitations had run on the crimes charged in counts two and three before the information was filed. In count two, the State charged Mr. Lawson with lewd or lascivious battery upon an elderly person under section 825.1025(2). The applicable statute of limitations for prosecution of that crime is three years, and the limitations period ran on January 25, 2006. See § 775.15(2)(b), Fla. Stat. (2002). Because the information in this case was not filed until November 20, 2008, the State did not commence prosecution for the offense until after the limitations period had run. See § 775.15(5)(b) (providing that commencement of prosecution depends, in part, on the filing of an information).

In addition, we agree with Mr. Lawson’s argument that the limitations period applicable to the lewd or lascivious battery charge was not extended under section 775.15(15)(a)(2), Florida Statutes (2008), based upon the commencement of the prosecution within one year of Mr. Lawson’s identification through DNA analysis. Section 775.15(15)(a)(2) does not apply to offenses that were barred from prosecution between July 1, 2004, and June 30, 2006. § 775.15(15)(b). Similarly, the limitations period was not extended under section 775.15(16)(a)(4) based upon Mr. Lawson’s identification through DNA analysis. Section 775.15(16)(a)(4) does not apply to offenses that were barred from prosecution when subsection (16) took effect on July 1, 2006. § 775.15(16)(b); ch. 2006-266, §§ 1, 2, at 2823-24, Laws of Fla.; see also Bryson v. State, 42 So.3d 852, 854 (Fla. 1st DCA 2010) (noting that “[t]he legislature can extend the limitations period without violating the constitutional prohibition against ex post facto laws if it ... does so before prosecution is barred by the old statute” (alteration in original) (quoting Andrews v. State, 392 So.2d 270, 271 (Fla. 2d DCA 1980))).

On count three, the State charged Mr. Lawson with abuse of an elderly person under section 825.102(1). As with the charge of lewd or lascivious battery, the applicable statute of limitations for prosecution of that crime is three years, and the limitations period ran on January 25, 2006. See § 775.15(2)(b), Fla. Stat. (2002). Because the information was not filed until November 20, 2008, the State did not commence prosecution on the elder abuse charge until after the limitations period had run. In addition, section 775.15(15)(a) and (16)(a), Florida Statutes (2008), did not extend the limitations period because those subsections do not apply to the offense of abuse of an elderly person.

For these reasons, the judgment and sentences imposed on Mr. Lawson for lewd or lascivious battery on an elderly person and abuse of an elderly person must be vacated and those charges dismissed. We affirm the judgment and sentence imposed on Mr. Lawson for burglary of a dwelling with assault or battery.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ., Concur.


author: ALTENBERND, Judge.

text:
    John H. FESSENDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3595.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2010.
    Rehearing Denied Feb. 8, 2011.
    See also 711 So.2d 1197.

      Rick A. Buchwalter of Law Office of Sonny Im, Tarpon Springs, for Appellant.
    Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee; and Yvette Acosta MacMillan, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   ALTENBERND, Judge.

John H. Fessenden appeals an order dismissing with prejudice his petition seeking court certification that he is a wrongfully incarcerated person entitled to compensation under the Victims of Wrongful Incarceration Compensation Act (the Act). See §§ 961.01-07, Fla. Stat. (2008). This appeal appears to be the first appeal of any claim made under this statute, which first became effective in July 2008. See ch. 2008-39, §§ 1, 9, at 714, 721, Laws of Fla.

As further explained below, Mr. Fessen-den obtained a reversal of his judgments and sentences by this court on the ground that his questionable conduct did not constitute grand theft or a violation of Florida’s Racketeer Influenced and Corrupt Organizations (RICO) Act. We agree with the trial court that the Victims of Wrongful Incarceration Compensation Act, as written by the legislature, applies only to claims where orders vacating sentences have been entered based on “exonerating evidence.” § 961.03(l)(a). Because Mr. Fessenden obtained an order vacating his judgment and sentence based on the ruling of an appellate court as a matter of law, and not based on exonerating evidence of his actual innocence, we conclude that the Act, strictly construed, does not encompass his claim. Accordingly, we affirm the order on appeal.

I. The Underlying Criminal Proceeding

Mr. Fessenden and his codefendant, Charles Amos, were charged in an indictment and in a superseding information with violating Florida’s RICO Act and with multiple counts of grand theft. The factual circumstances behind these charges are described in some detail in the opinion of this court reversing Mr. Amos’s judgments and sentences. See Amos v. State, 711 So.2d 1197 (Fla. 2d DCA 1998).

In a nutshell, Mr. Fessenden was an insurance agent who handled workers’ compensation insurance for his clients in the 1980s. He was charged and convicted of RICO violations and grand theft because he was assisting his clients in submitting false estimates of premium liability at the beginning of a policy year to the insurance company, which substantially reduced the premiums that the clients paid to the insurance companies. In cases where the insurance company sought an audit at the end of the policy year, he helped provide false payroll information to the auditor in an effort to avoid paying the premium increase that should have resulted from an accurate year-end audit.

This court’s opinion in Amos clearly reflects our concern that the conduct was morally improper. See id. at 1201 (citing § 626.9541, Fla. Stat. (Supp.1986)) (recognizing that Amos’s practice of making false statements on insurance applications was “dishonest” and constituted a second-degree misdemeanor). We discussed statutes enacted after these events that may have criminalized the conduct. Id. at 1200. We concluded, however, that the conduct did not fit within the elements of grand theft or RICO. Id. at 1201. The issue was sufficiently close and of such importance that we certified a question to the supreme court as to whether the conduct constituted theft. Id. at 1201-02. The supreme court declined to review the certified question. State v. Amos, 727 So.2d 911 (Fla.1998) (table decision).

Based on the reasoning in Amos, this court also reversed Mr. Fessenden’s judgments and sentences, certifying the same question as was certified in Amos. Fessenden v. State, 713 So.2d 1093 (Fla. 2d DCA 1998). The supreme court declined to review the question in Mr. Fessenden’s case. State v. Fessenden, 734 So.2d 1038 (Fla.1999).

From the limited record in this case, we cannot determine when or if Mr. Fessen-den was in prison as a result of the judgments and sentences that this court reversed in 1998. It appears likely that he was incarcerated from November 1996 until mid-1998.

II. The General Procedures Applicable Under The Victims of Wrongful Incarceration Compensation Act

The Victims of Wrongful Incarceration Compensation Act was enacted in 2008. See ch. 2008-39, §§ 1, 9, at 714, 721, Laws of Fla. Obviously, the Act became effective about ten years after Mr. Fessenden’s judgments and sentences were vacated. The Act, however, specifies that if a person’s judgments and sentences were vacated prior to the effective date of the statute, the person could petition for compensation so long as the petition was filed by July 1, 2010. § 961.03(l)(b)(2). Thus, Mr. Fessen-den’s petition is timely because he filed it on February 23, 2009.

The Act is the entire contents of chapter 961. It is administered by the Department of Legal Affairs, and the Chief Financial Officer of the State arranges any compensation awarded under the Act. § 961.06(3), (4). Before a person can apply to the Department for compensation, the person must first obtain a determination that he or she is a “wrongfully incarcerated person” under the statute. §§ 961.02(4), .03.

An official determination that one is a “wrongfully incarcerated person” requires the person to return to the court where the judgment and sentence were vacated. The person files a petition in that court seeking a determination of this status. § 961.03(1). The prosecuting authority is required to respond to the petition and either certify that the person is “not ineligible” to be so classified or to contest the petition. § 961.03(2).

If the prosecutor does not contest the petition, based on the “evidence of actual innocence” and other evidence, the court is authorized to find by-clear and convincing evidence that the person is eligible and to issue an order certifying this status to the Department. § 961.03(3). If the prosecutor contests the petition, the trial court can either dismiss the petition if the person is “ineligible under the provisions of [section] 961.04” or it can transfer the matter to the Division of Administrative Hearings for a hearing to resolve the factual disputes. § 961.03(4). Once the hearing is concluded, the matter returns to the trial court to enter an order either granting or denying the determination that the person is a “wrongfully incarcerated person.” § 961.03(6), (7).

III. The Trial Court’s Dismissal

The trial court in this case dismissed Mr. Fessenden’s petition, but it did not dismiss the petition pursuant to section 961.03(4)(a). That provision allows the court to dismiss the petition if the petitioner is ineligible under the provisions of section 961.04. Section 961.04 provides three grounds for exclusion from eligibility: (1) conviction of any prior felony in Florida or another state, (2) conviction of another felony while incarcerated, and (3) the existence of a concurrent sentence for a crime for which the petitioner was not wrongfully convicted. None of these exclusions applies to Mr. Fessenden. Thus, the trial court could not dismiss the petition under section 961.03(4)(a).

The trial court dismissed the petition on the grounds that Mr. Fessenden was not, by definition, a “wrongfully incarcerated person” and that the petition could not be amended to state a claim. In essence, the trial court dismissed the petition for failure to state a cause of action. Although the statute does not provide for such a dismissal, we agree with the trial court that it had inherent authority to dismiss the petition on this ground. Thus, the dispositive issue in this case is whether the reversal of Mr. Fessenden’s judgments and convictions on appeal because the conduct proven at trial did not constitute the charged offense qualifies him as a “wrongfully incarcerated person.”

IV. The Definition of “Wrongfully Incarcerated Person” in Section 961.02(4) must Be Read in Conjunction with the Provisions in Section 961.03(l)(a).

On initial examination, it does appear that Mr. Fessenden is arguably a “wrongfully incarcerated person” as that term is defined in section 961.02(4). That definition states:

“Wrongfully incarcerated person” means a person whose felony conviction and sentence have been vacated by a court of competent jurisdiction and, with respect to whom pursuant to the requirements of s. 961.03, the original sentencing court has issued its order finding that the person neither committed the act nor the offense that served as the basis for the conviction and incarceration and that the person did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense.

§ 961.02(4). Mr. Fessenden clearly has had his conviction and sentence vacated by a court of competent jurisdiction. Although he committed certain acts, this court on appeal declared that he had not committed the offense that served as the basis of the conviction. See Fessenden, 713 So.2d at 1093 (citing Amos, 711 So.2d 1197). Because we determined that the acts were not criminal, at least under the charged offenses, it would not seem that he could aid or abet Mr. Amos or any other person in those offenses. As it stands, the acts he committed are not criminal acts.

The definition of “wrongfully incarcerated person,” however, includes a requirement that the trial court have issued its order under section 961.03. Section 961.03(l)(a) explains that in order to meet the definition of “wrongfully incarcerated person,” the petitioner must establish that the conviction and sentence were vacated by an order “based upon exonerating evidence.” The petition itself must “[sjtate that verifiable and substantial evidence of actual innocence exists and state with particularity the nature and significance of the verifiable and substantial evidence of actual innocence.” § 961.03(l)(a)(l).

In his petition, Mr. Fessenden described this court’s opinion reversing his judgment and sentence as the verifiable and substantial evidence of actual innocence. It is certainly true that the trial court vacated his judgments and sentences in order to comply with our mandate. However, we conclude that our legal opinion in this context is not “exonerating evidence” establishing a defendant’s actual innocence for purposes of this Act.

It is perhaps worth noting that this court can reverse a criminal judgment and sentence employing at least four different rationales. First, we can reverse and remand for new trial when a procedural error renders the judgment and sentence faulty. See, e.g., Fasenmyer v. State, 383 So.2d 706, 708 (Fla. 1st DCA 1980) (reversing based on trial court’s failure to hold a Richardson inquiry after discovery violations by the State). Second, we can reverse when the State charged a defendant with a crime that it had probable cause to believe the defendant committed but for which it did not have the necessary proof at the time of trial. Third, we can reverse when a crime has actually occurred but the State failed to prove that the defendant committed the crime. Fourth, as in this case, we can reverse because the State proved its intended case but the proof did not, as a matter of law, constitute a crime. See, e.g., Merritt v. State, 712 So.2d 384, 385 (Fla.1998) (reversing conviction for nonexistent crime of attempted battery of a law enforcement officer); see also B.B.P. v. State, 841 So.2d 687, 688 (Fla. 2d DCA 2003) (reversing conviction for nonexistent crime of possession of stolen property).

It seems obvious to this court that the first described reversal cannot be proof of actual innocence. Likewise, we doubt that any of these bases for reversal, without more evidence, are sufficient to constitute evidence of actual innocence. In this case, however, we are considering only the final ground, which admittedly comes closest to being evidence of actual innocence.

When an appellate court reverses a judgment and sentence for lack of evidence, it does not make any determination that the defendant is actually innocent; it merely determines that the State did not provide evidence that could support a verdict of guilt beyond a reasonable doubt. There is a substantial difference in our system of justice between the concept of “not guilty” and that of “actual innocence.” The Bill Analysis and Fiscal Impact Statement prepared by the staff of the Judiciary Committee demonstrates that the Victims of Wrongful Incarceration Compensation Act was prompted by cases in which DNA evidence had exonerated defendants. See Fla. S. Bill Analysis & Fiscal Impact Statement of Mar. 26, 2008, § 2 for Bill CS/SB 756, p. 2 (“In Florida, at least nine people have been exonerated or released from incarceration since 2000, as a result of post-conviction DNA testing.”). The legislature was concerned about compensating persons who were actually innocent, but not necessarily about paying people who had been found not guilty.

Mr. Fessenden, it would seem, does not fall cleanly into either the group of people who are “not guilty” or those who are “actually innocent.” In this case, there is no question that Mr. Fessenden “committed the act” that “served as the basis for the conviction and incarceration.” See § 961.02(4). The error in Mr. Fessenden’s criminal case was not one of fact, but of law. The acts he committed that served as the basis of the conviction were not acts that legally constituted the crime. The grand jury, the prosecutor, and the trial court, perhaps misled by their sense that Mr. Fessenden’s actions were immoral, erred in their respective legal analyses of the factual circumstances underlying the conviction.

The language of this statute does not apply to a person who is acquitted on a motion for judgment of acquittal at the end of the State’s case; it requires that the trial court have entered a judgment and conviction. Thus, no remedy is provided based on the trial court’s legal ruling even if the defendant spent many months in jail awaiting trial. This decision by the legislature causes this court to doubt that the legislature intended a different outcome when the legal ruling emanates from the district court. On the other hand, our decisions are often made after the defendant has spent more than a year in prison.

Although not a complete waiver of sovereign immunity, the Victims of Wrongful Incarceration Compensation Act is in the nature of a statute waiving sovereign immunity. But cf. § 961.06(7) (“Any payment made under [the Act] does not constitute a waiver of any defense of sovereign immunity.”). The Act does not authorize a lawsuit against the State, but it creates a streamlined claims process that is similar in practice and outcome to a lawsuit. The Act sets aside questions of wrongdoing or negligence on the part of a state actor and creates an avenue for relief against the State by a person who has been wrongfully incarcerated.

It is well established that provisions for bringing suit against the State under article X, section 13, of the Florida Constitution must be strictly construed. “When a statute purports to authorize a waiver [of sovereign immunity], the statutory language must be clear and unequivocal; such statutes should be strictly construed.” McPhee v. Dade Cnty., 362 So.2d 74, 79 (Fla. 3d DCA 1978); see also Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 472 (Fla.2005) (“In interpreting ... legislative waivers of sovereign immunity, this Court has stated that it must strictly construe the waiver.”). Waivers of sovereign immunity are strictly construed “as a protection of the public against profligate encroachments on the public treasury.” Spangler v. Fla. State Turnpike Auth., 106 So.2d 421, 424 (Fla. 1958). We conclude that these policies are applicable to the Act and that it should be strictly construed in favor of the State. Under such a strict construction, an order vacating a conviction and sentence based on the legal ruling of this court is not an order “based upon exonerating evidence,” as required by section 961.03(l)(a).

Morally, Mr. Fessenden’s conduct may have been offensive, but it was not a crime. Prisons are not constructed to house people guilty of moral improprieties, and a public policy that would compensate people like Mr. Fessenden might arguably be in order. If the legislature wishes to adopt that policy, it is free to do so, but we cannot conclude that it adopted such a policy with the language currently contained in chapter 961.

Affirmed.

WALLACE, J, and FULMER, CAROLYN K, Senior Judge, Concur.

      . The author of this opinion was also a member of the panel that reviewed Mr. Fessen-den’s and Charles Amos's direct criminal appeals in 1998. See Amos, 711 So.2d at 1202; Fessenden, 713 So.2d 1093 (Fla. 2d DCA 1998). This is the result of a random assignment and not a selection that was intentional on the part of this court. See Second District Court of Appeal, Internal Operating Procedures, Office of the Clerk, § 3.4 at 9-10 (Jan. 18, 2005), http://www.2dca.org/Clerk/Notices/ Internal% 20Operating% 20Procedure% 2010-26-07.pdf.

      . The exact language of the statute is more complex than the simplified explanation provided in this opinion. Those complexities are not essential to our ruling, and we do not intend by our simplification to alter the language of the statute.

      . Mr. Fessenden also argues that the trial court was required to certify his status to the Department because the prosecuting authority did not file its response within the thirty days described in the statute. We disagree. The prosecuting authority in this context is not a party who can be "defaulted.” If the prosecuting authority declined to respond, Mr. Fessenden was certainly entitled to an order from the court compelling that authority to respond, but the State’s delay did not entitle Mr. Fessenden to receive an order certifying his status to the Department.

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).


text:
    Tyson L. PRESTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2262.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.
    Tyson Preston, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Tyson L. Preston petitions for another appeal, alleging ineffective assistance of appellate counsel. See Fla. R.App. P. 9.141(c). We deny the petition, and order Preston to show cause as to why he should not be sanctioned pursuant to section 944.279, Florida Statutes (2010), for filing a frivolous and misleading collateral criminal proceeding.

Preston was convicted of burglary of a dwelling. The evidence at trial showed that a teenage boy came home with a friend midday and discovered Preston inside his home. He summoned his parents and police, who arrived and detained Preston. At trial, the victims testified that they did not know Preston at all, that he had not been invited into their home by anyone, and that he had opened and tampered with drawers and closets inside the home before being discovered. On appeal, Preston asserted that the prosecutor asked an argumentative question during Preston’s cross-examination, to which an objection was taken and sustained. He further argued that the prosecutor made improper comments during closing argument, which were not objected to but which constituted fundamental error. We affirmed without opinion. Preston v. State, 17 So.3d 1242 (Fla. 5th DCA 2009).

As his first ground for relief, Preston again argues that some of the prosecutor’s comments during his cross-examination and during the State’s closing argument constituted fundamental error. We will not revisit this issue. See Turner v. Dugger, 614 So.2d 1075 (Fla.1992) (recognizing appellate court will not revisit issues, or variations thereof, presented under the guise of ineffective assistance of appellate counsel); Right v. Dugger, 574 So.2d 1066 (Fla.1990) (recognizing petition alleging ineffective assistance of appellate counsel is not a second appeal, and cannot relitigate issues already presented on appeal).

As his second ground for relief, Preston correctly notes that there are two lesser-included offenses to burglary of a dwelling: (1) burglary of a structure and (2) trespass. See Fla. Std. Jury Instr. (Crim.) 18.1. He argues that the trial court reversibly erred by not instructing the jury on the elements of burglary of a structure and not including burglary of a structure as a lesser included offense on the verdict form. And, he claims that his appellate counsel was ineffective for failing to raise this issue in his original appeal. In doing so, Preston represented that the “trial transcripts is [sic] void of any references to the elements that must be met in order to prove the second lesser included offense of burglary of a structure, and the verdict form is also void of this lesser included offense.” Because “failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible,” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), if preserved for appellate review, cf. Johnson v. State, 53 So.3d 1003, 2010 WL 3909859 (Fla.2010), we ordered the State to provide the record in order to determine whether this issue was preserved at trial. Having now reviewed the record, we see that the jury was instructed on the definitions of “structure” and “dwelling,” and asked to determine by special interrogatory verdict whether the structure burglarized was a dwelling. There was no objection to this method of presenting the issue to the jury. As such, Preston’s petition completely lacks merit.

Accordingly, we deny the petition and grant Preston thirty days to demonstrate, in writing, why this court should not recommend sanctions pursuant to section 944.279, Florida Statutes (2010), for filing a frivolous petition.

PETITION DENIED. ORDERED TO SHOW CAUSE.

LAWSON, EVANDER and JACOBUS, JJ., concur.