author: RAMIREZ, C.J.

text:
    Leisa PARRA, Petitioner, v. Bartolo CRUZ and Janitza Lopez, Respondents.
    No. 3D10-2661.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing and Rehearing En Banc Denied May 4, 2011.

      Cooney Trybus Kwavnick Peets and Warren Kwavnick, Ft. Lauderdale and Bruce M. Trybus, for petitioner.
    Roy D. Wasson, Miami; Ramon M. Rodriguez, for respondents.
   RAMIREZ, C.J.

Leisa Parra petitions this Court for a Writ of Certiorari, requesting that we quash the trial court’s Order of September 8, 2010, which granted the respondents’ post-verdict motion for jury interviews. This motion argued that every single juror, including the alternate, had concealed litigation history during voir dire. Because we find that the trial court abused its discretion and departed from the essential requirements of law, we grant certiora-ri and quash the order.

Respondents, Bartolo Cruz and Janitza Lopez, brought the underlying automobile negligence action against petitioner, Leisa Parra. Parra admitted liability and the jury—having found that the respondents suffered no permanent injury—awarded limited damages. The respondents then filed a motion for a new trial, claiming that the jurors had concealed litigation history. Along with the motion for a new trial, the respondents filed a motion for juror interviews. Respondents claimed that every juror had in some way concealed all manner of prior litigation relating to the individual juror or that juror’s family. Petitioner filed a response in opposition. The trial court conducted a brief hearing and subsequently granted the motion for juror interviews. The court deferred ruling on the motion for a new trial until after the juror interviews were completed. This petition for certiorari follows.

Although there are rare instances in which post-trial juror interviews are allowed, the general policy is that they are disfavored. See Schmitz v. S.A.B.T.C. Townhouse Ass’n., 537 So.2d 130, 131 (Fla. 5th DCA 1988) (holding that interviews should rarely be granted); see also Harbour Island Sec. Co., v. Doe, 652 So.2d 1198, 1199 (Fla. 2d DCA 1995) (quashing order allowing juror interview and reiterating belief that there is “strong public policy against juror interviews”). Additionally, a post-trial juror interview “is never permissible unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial.” Baptist Hosp. of Miami, Inc. v. Moler, 579 So.2d 97, 100 (Fla.1991); see also Egitto v. Wittman, 980 So.2d 1238, 1240 (Fla. 4th DCA 2008). In De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), the Florida Supreme Court established a three part test to determine whether a juror’s nondisclosure warrants a new trial. “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id. at 241.

In the instant case, the respondents seek a new trial because of the “non-disclosure by all of the jurors of potentially relevant litigation history involving themselves and family members.” Respondents cite to this Court’s holding in Wilcox v. Dulcom, 690 So.2d 1365, 1366 (Fla. 3d DCA 1997), for the proposition that “[t]he litigation history of a potential juror is relevant and material to jury service, even if that history involves a different type of case.” However, this Court later recognized in Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000), that under the materiality prong of the three-part analysis, the question “is not simply whether information is relevant and material in general, but whether ‘it is relevant and material to jury service in the case.’ Id. at 358. This Court further held that “[mjateriality must be analyzed on a case-by-case basis, and [ ] that Wilcox does not mandate an automatic new trial whenever there has been a nondisclosure of litigation information.” Id. at 359.

Respondents are unable to show how the prior litigation history of these jurors is material to the present action. They claimed that every juror had concealed all types of prior litigation relating to himself or herself and family members, including divorce actions, paternity actions, contract indebtedness actions, eviction proceedings, probate proceedings and criminal matters. The respondents rely on the misplaced notion that any prior litigation history coming to light after trial is grounds for a new trial. This is an untenable position.

We find that the order in question would allow for indiscriminate jury interviews based on wholly unrelated and immaterial matters to the current litigation. Moreover, the information allegedly concealed was never squarely asked for by respondents’ counsel. Thus, there was a lack of diligence and no concealment under De La Rosa. Accordingly, we grant the petition for writ of certiorari and quash the order under review.


source: Caselaw Access Project

author: PER CURIAM. SHEPHERD, J.,

license: Public Domain

text:
    Randy Spence JUBA and Trica Roxanne Juba, Appellants, v. Jean D. MILCEUS, Appellee.
    No. 3D09-1319.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing and Rehearing En Banc Denied May 10, 2011.

      Luks, Santaniello, Perez, Petrillo, Gold & Jones, Tallahassee, and James P. Wac-zewski, Daniel J. Santaniello, and Doreen R. Lasch, Fort Lauderdale, for appellants.
    Ginsberg & Schwartz and Arnold Ginsberg, Miami; Steven M. Singer, for appel-lee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed.

WELLS and LAGOA, JJ., concur.

SHEPHERD, J.,

dissenting.

Although, if given the opportunity, I would reconsider having joined the majority in AC Holdings 2006 v. McCarty, 985 So.2d 1123 (Fla. 3d DCA 2008), wherein this Court relieved a defendant from the consequences of negligent counsel, which was not cured until a second motion for rehearing, I feel obligated by the doctrine of stare decisis to apply the reasoning of AC Holdings to relieve the defendants here of the consequence of similarly negligent counsel who sought to cure her error one motion for rehearing sooner. In each case, the error of counsel was basic and identical: the failure to submit sworn evidence in response to a plaintiffs motion for final summary judgment. See Fla. R. Civ. P. 1.510(c) (stating summary judgment evidence must be such “as would be admissible in evidence”).

The case before us arises out of the trial court’s denial of a timely filed motion for rehearing in a personal injury case, in which defense counsel sought leave to have considered a sworn copy of an expert medical report which had been timely filed, albeit unsworn, in response to the plaintiffs motion for summary judgment. It is not disputed that if the report had been sworn, summary judgment would have been precluded. Counsel’s reason for not supplying a sworn copy of the report in her response was her erroneous impression that because the report previously had been supplied to opposing counsel under Florida Rule of Civil Procedure 1.360(b)(1), a swearing of its contents was unnecessary for summary judgment purposes.

In AC Holdings, counsel for AC Holdings similarly erred, first by filing nothing in opposition to the motion for summary judgment, and then by filing an unsworn letter in conjunction with the first motion for rehearing. The trial court denied the motion for rehearing. Id. at 1125. Co-counsel then filed a notice of appearance, followed by a second motion for rehearing, and, for the first time, attached a sworn affidavit. Id. The trial court again denied the motion. This Court concluded the ruling constituted an abuse of discretion on the part of the trial court and reversed for further proceedings. Id. at 1126.

A careful comparison of the reasoning of AC Holdings with the case before us makes clear the cases are legally indistinguishable. Our reasons for reversal in AC Holdings were three-fold. First, we took notice of the fact that counsel for AC Holdings was a new law school graduate at the time the plaintiffs commenced the action. Id. at 1124. The same happens to be true in our case. Counsel for the Jubas was less than two years out of law school when the action was filed. Second, our AC Holdings opinion appears to suggest as a reason supporting reversal that AC Holdings’ second motion for rehearing was addressed to an interlocutory order, which was inherently modifiable at any time prior to entry of the Final Judgment. See AC Holdings, 985 So.2d at 1125. In our case, the motion for rehearing, the first and only one filed,' likewise was submitted before the Final Judgment was entered. The third reason given in AC Holdings for the conclusion the trial court abused its discretion in rejecting the affidavit in that case was that it “merely explicated the issues that previously had been raised.” Id. at 1126. That also is true in our case. The affidavit the trial court refused to consider below is merely a sworn copy of an unsworn medical report that previously had been proffered and argued at the hearing on the motion for summary judgment held below. Applying the reasoning of AC Holdings, I find the argument for reversal of the order granting summary judgment in this case no less “compelling or exigent” than that in AC Holdings. See id. at 1125.

On this basis, I would reverse the final summary judgment and remand this case for further proceedings.

      . It also is noteworthy that AC Holdings did not, at the second motion for rehearing, argue inexperience of counsel as the reason its affidavit was not timely filed. In fact, the briefs on file in the Office of the Clerk of this Court, of which we are permitted to take judicial notice, see Gulf Coast Home Health Servs. of Fla. v. Dep't of Health & Rehabilitative Servs.,
        503 So.2d 415, 417 (Fla. 1st DCA 1987) (stating an appellate court can take judicial notice of its cases, including issues presented in briefs), reflect that an ineptness of counsel argument first appeared in AC Holdings' Reply/Cross-Answer Brief.


author: ROTHENBERG, J.

text:
    Alex BISTRICER, as limited partner of Gulf Island Resort, L.P., and Gulf Island Resort, L.P., Appellants, v. OCEANSIDE ACQUISITIONS, LLC, a Florida limited liability company; DBKN Gulf Incorporated, a Florida corporation; and Steven Carlyle Cronig, Appellees.
    No. 3D09-3002.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing Denied May 6, 2011.

      Anania, Bandklayder, Baumgarten & Torricella and Maurice J. Baumgarten, Miami, for appellants.
    Holland & Knight and Stacy D. Blank, Tampa, for appellees Oceanside Acquisitions, LLC and DBKN Gulf Incorporated.
    Walton Lantaff Schroeder & Carson and Deborah P. Fitzgerald, Fort Lauderdale, for appellee Steven Carlyle Cronig.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

This appeal filed by the plaintiffs, Alex Bistricer, as limited partner of Gulf Island Resort, L.P. (“Bistricer”), and Gulf Island Resort, L.P. (“GIRL”) (collectively, “the Plaintiffs”), stems from an order granting a Motion for Contempt and Sanctions (“Contempt Order”) filed by the defendants, Oceanside Acquisitions, LLC (“Oceanside”) and DBKN Gulf Incorporated (“DBKN”) (collectively, “the Defendants”). The Contempt Order strikes with prejudice the Plaintiffs’ claims to quiet title to real property as a sanction for failing to comply with previously entered discovery orders and for presenting the false testimony of the Plaintiffs and their representatives. The Contempt Order was entered by Pasco Circuit Court Judge Wayne L. Cobb, Bistricer v. Coastal Real Estate Assocs., Inc., 2006 WL 3258226 (Fla.Cir.Ct. Aug. 30, 2006), and Judge Cobb then entered a partial judgment quieting title in favor of the Defendants. Thereafter, the Pasco Circuit Court action was transferred to Miami-Dade Circuit Court, and Judge Thomas S. Wilson, Jr. entered final summary judgment in favor of Oceanside, DBKN, and Steven Carlyle Cronig (“Cro-nig”), as to the remaining counts.

The primary issue before this Court is whether Judge Cobb abused his discretion by entering the Contempt Order, and thereafter, entering a partial judgment quieting title in favor of the Defendants. As Judge Cobb’s Contempt Order documents the ongoing and egregious discovery violations and the false testimony presented by the Plaintiffs and their representatives, and because, under the circumstances, the imposition of the most severe sanction — striking pleadings — was a proper sanction, we conclude that he did not abuse his discretion.

Judge Cobb’s Contempt Order contains the following findings of fact, which accurately reflect the record before this Court. In March 2003, the Plaintiffs filed an action against the Defendants, seeking, in part, to quiet title to condominium units and undeveloped land. On September 18, 2003, the Defendants served an amended notice of subpoena duces tecum (“Amended Notice”) on Candy Smith (“Smith”), a third-party defendant and the records custodian for GIRL and its general partner, Gulf Island Resort, Inc. (“GIRI”). The Amended Notice requested, in part, that Smith appear at a deposition scheduled for September 30, 2003, and produce all documents relating to work performed on behalf of or at direction of GIRL, GIRI, or GIRI’s shareholders — Bistricer, Eisi Markovitz, and Robert Fireworker. In response, Smith, who was represented by R. Nathan Hightower (“Hightower”), the same counsel representing Bistricer and GIRL, filed a protective order. At a hearing held on September 29, 2008, Pasco Circuit Court Judge Lynn Tepper overruled Smith’s objections to the Amended Notice, and ordered Smith to appear at the scheduled deposition and to produce all documents created after February 10, 1993, that are responsive to the Amended Notice. . Thereafter, on February 5, 2004, Judge Tepper entered a written order memorializing her oral ruling (“Judge Tep-per’s Order”). As ordered, Smith appeared at the deposition, and thereafter, Smith’s counsel, Hightower, and the Defendants’ counsel, Scott McLaren (“McLaren”), arranged to have the documents copied and delivered to McLaren.

Bistricer was then served with a request for production, seeking any documents relating to action he took on behalf of GIRI or GIRL. At a deposition, Bistri-cer represented that he instructed GIRL’s records custodian, Smith, to provide all the requested documents. Thereafter, McLaren and Hightower exchanged letters in which McLaren claimed that Smith and Bistricer had not produced all documents required by Judge Tepper’s Order, and Hightower asserted that he believed that the documents had been produced. Believing that Smith and Bistricer had not fully complied with the prior discovery order, the Defendants filed a Motion for Contempt, for Sanctions, and to Compel Discovery. At a hearing held on May 20, 2004, Hightower acknowledged that documents pertaining to “one account” had not been produced, and thereafter, on May 28, 2004, the trial court entered an order compelling the Plaintiffs to produce those documents, but -withholding ruling on the Defendants’ motions for sanctions and contempt. Once again, in June 2004, McLaren and Hightower exchanged correT spondence, with McLaren accusing the Plaintiffs of not fully complying with previous discovery orders, and the Plaintiffs assuring the Defendants that all documents had been produced.

At a deposition held on December 13, 2005, Bistricer represented to Defendants’ counsel, McLaren, that, except for telephone bills, all documents responsive to the request for production had been produced by Smith:

My understanding the last time we visited this issue is that you requested and received 17 boxes, effectively 'every piece of paper that [GIRL] had in its possession and Candy Smith was the custodian of all the records that I think-I recall she told me and I can testify that she gave you every document that she had.

(Emphasis added).

On May 30, 2006, a- non-jury trial, which was scheduled for several days over a period of months, commenced before Judge Cobb. Bistricer testified as to eight relevant real estate transactions, explaining that certain documents were executed that support his position. During cross-examination conducted on June 6, 2006, Bistricer acknowledged that documents for three of the eight transactions were never located during discovery. Several days later, the Plaintiffs’ counsel informed the Defendants’ counsel that the missing documents from the three real estate transactions had been located.

When trial commenced in mid-June, the Plaintiffs’ counsel attempted to introduce the documents into evidence. Following the Defendants’ objection, Hightower testified as to the circumstances surrounding the discovery of these documents. High-tower explained that the documents relating to one transaction were obtained from an attorney involved in that transaction, and the documents from the other two transactions were located in a filing cabinet and a briefcase located at GIRL’s office. Thereafter, Judge Cobb ordered the Plaintiffs to allow the Defendants to review any documents at GIRL’s office that had not been previously produced and were responsive to prior discovery requests and orders. Although Bistricer had previously testified that Smith had given the Defendants “every document that she had,” the Plaintiffs produced an additional forty-six boxes, containing over 68,000 documents.

Several of these documents were generated prior to Smith’s September 30, 2008, deposition; had not been previously produced by either Smith or Bistricer; and were responsive to the prior discovery requests and orders of the trial court. More importantly, the boxes contained documents relevant to the issues and/or affirmative defenses raised in the parties’ pleadings, and thérefore would have been addressed during the pre-trial depositions and the cross-examination of the Plaintiffs’ key witness, Bistricer, during trial. Further, these documents were inconsistent with (1) Bistricer’s affidavit denying knowledge 'of a relevant transaction/document; (2) Bistricer’s deposition testimony; (3) Bistricer’s trial testimony; (4) Fire-worker’s deposition testimony; and (5) Smith’s deposition testimony.

Iri the Contempt Order, Judge Cobb rejected the Plaintiffs’ argument that Bis-tricer, Smith, and Fireworker were “merely mistaken” when they testified that all documents had been produced, and instead, found that “this is not a reasonable explanation for the false testimony given by all three representatives of Plaintiff GIRL on this important issue.” Judge Cobb also found that “the collective effect of the false testimony provided by Plaintiffs and their representatives constitutes a fraud upon the Court resulting in the loss of evidence to the Defense,” and that the “Defendants were effectively denied the opportunity to examine the documents and determine their relevance at a time when they could incorporate them into their discovery planning, case preparation, trial strategy, and use at trial for cross-examination and other purposes.”

Judge Cobb concluded that the Plaintiffs’ discovery violations “demonstrate deliberate and contumacious disregard of this court’s authority, as well as behavior evincing deliberate callousness to the discovery process.” Judge Cobb also concluded that the Defendants presented clear and convincing evidence that the Plaintiffs and their representatives “intended to interfere with the judicial system’s ability to impartially adjudicate this matter by improperly influencing the trier of fact and by unfairly hampering the presentation of the Defendants’ claims and decisions.” Further, although Judge Cobb acknowledged that striking a party’s pleadings is a “severe sanction,” based on the “egregious” violations of discovery orders and the false testimony by the Plaintiffs and their representative, striking the pleadings is “the only practical alternative to resolve this matter.”

Based on these findings and conclusions, Judge Cobb granted the Defendants’ Motion for Contempt and Sanctions, striking the claims to quiet title and granting good and marketable title to the subject properties in favor of the Defendants. Thereafter, Judge Cobb entered a partial judgment quieting title in favor of Oceanside and DBKN.

The primary issue before this Court is whether Judge Cobb abused his discretion by striking a portion of the Plaintiffs’ pleadings as a sanction for violating discovery orders and presenting false testimony. See Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002) (noting that an appellate court reviews an order imposing sanctions under an abuse of discretion standard). As we conclude that Judge Cobb did not abuse his discretion, we affirm.

In Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983), the Florida Supreme Court succinctly explained:

[T]he striking of pleadings or entering a default for noncomplianee with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.

(Citations omitted); see also Metro. Dade Cnty. v. Martinsen, 736 So.2d 794, 795 (Fla. 3d DCA 1999) (“It is well-settled ‘that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends.’”) (quoting Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998)).

In the instant case, the record demonstrates that the Plaintiffs’ discovery abuses were protracted. Basically, between September 30, 2003, and the start of trial on May 30, 2006, the Plaintiffs assured the Defendants that, except for certain telephone bills, all documents responsive to discovery requests and orders had been produced. During this nearly three-year period, even after the trial court withheld its ruling on motions for contempt and sanctions, the Plaintiffs continued to violate discovery orders. It was not until after the trial court had completed five days of trial that the Plaintiffs announced that they had located certain documents, which allegedly favored their position. When trial continued, the Plaintiffs attempted to introduce these documents without immediately disclosing that they had also discovered over 68,000 other documents. After the trial court inquired as to where these documents were located, it learned that many other documents were sitting in a filing cabinet at GIRL’s office. Pursuant to the trial court’s order, the Plaintiffs produced these documents, and it was then that the Defendants learned that several documents were “quite relevant” as they supported their affirmative defenses and impeached Bistricer’s, Smith’s, and Fireworker’s testimony on a key issue. As these documents were “quite relevant,” they would have been addressed during the various pre-trial depositions and during Bistricer’s trial testimony. Finally, as these documents were located in active files at GIRL’s office, Judge Cobb was within his discretion to reject the Plaintiffs’ explanation for not producing these documents prior to trial. Under these circumstances, we conclude that Judge Cobb did not abuse his discretion by imposing the severest sanction-striking pleadings. Accordingly, as the remaining arguments pertaining to the entry of the Contempt Order or partial judgment quieting title in favor of the Defendants lack merit, we affirm these orders.

The remaining issues raised by the Plaintiffs as to the entry of final summary judgment in favor of Oceanside, DBKN, and Cronig, lack merit. Accordingly, we also affirm that order.

Affirmed.


author: PER CURIAM.

text:
    Renyel PINTO, Appellant, v. MAJOR LEAGUE JEWELERS, INC., etc., Appellee.
    Nos. 3D10-2481, 3D10-2527.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing and Rehearing En Banc Denied May 4, 2011.
    Mariajose Sanchez, for appellant.
    Steven J. Lachterman, Coral Gables, for appellee.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

In Case Number 3D10-2481, this Court, pursuant to Florida Rule of Appellate Procedure 9.040(c), ordered that Renyel Pinto’s petition for writ of certiorari proceed as an appeal taken from a final order granting Major League Jewelers, Inc.’s motion for judgment on the pleadings. See GEICO Fin. Servs., Inc. v. Kramer, 575 So.2d 1345, 1346 (Fla. 4th DCA 1991) (“A self-executing final judgment in an action wherein no further judicial labor is required or contemplated ends the litigation between the parties.”).

In Case Number 3D10-2527, Pinto filed a notice of appeal from the same final order and from the ensuing order denying his motion for rehearing. Having now determined the two appeals are duplicative, this Court, on its own motion, consolidates Case Numbers 3D10-2527 and 3D10-2481, and affirms the orders on appeal.

Cases consolidated; orders affirmed.

      . Pinto filed a notice of a appeal in Case Number 3D10-2527 September 24, 2010, the same day this Court issued the order that his petition for writ of certiorari proceed as an appeal taken from a final order.


text:
    Nolbin Saul GUIFARO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-293.
    District Court of Appeal of Florida, Third District.
    March 16, 2011.
    Rehearing and Rehearing En Banc Denied May 4, 2011.
    Nolbin Saul Guifaro, in proper person.
    Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ. _
   PER CURIAM.

Affirmed. See Maddox v. State, 760 So.2d 89, 107 (Fla.2000).


author: WELLS, Judge. ROTHENBERG, J.,

text:
    Manuel CASTILLO, Appellant, v. Mercedes CASTILLO, Appellee.
    No. 3D09-2741.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Rehearing Denied May 9, 2011.
    Harvey D. Rogers, Miami, for appellant.
    Brenda P. Shapiro, for appellee.
    Before WELLS, ROTHENBERG, and SHEPHERD, JJ.
   WELLS, Judge.

Manuel Castillo appeals from a final judgment of dissolution of marriage to Mercedes Castillo. He argues that the trial court erred in its imputation and calculation of the parties’ incomes and thus, in the amount of alimony and child support awarded; that the trial court erred as to the date of thé valuation of the parties’ assets and in the equitable distribution of the marital estate; and that the trial court erred in the allocation of the tax exemption available for each child.

The trial court has broad discretion to use various available remedies to do equity between the parties to a dissolution proceeding. See Misdraji v. Misdraji, 702 So.2d 1292, 1294 (Fla. 3d DCA 1997) (“It is a well recognized principle that appellate courts should not substitute their judgment for that of the trial court by reevaluating the testimony, and that the trial court must be upheld unless an appellant clearly shows that the trial court has abused its discretion.”). The remedies which may be used to accomplish this purpose include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and the award of exclusive possession of property. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). “Because these remedies are interrelated as part of an overall scheme, it is ‘extremely important that they also be reviewed by appellate courts as a whole, rather than independently.’” Guobaitis v. Sherrer, 18 So.3d 28, 33 (Fla. 3d DCA 2009) (quoting Canakaris, 382 So.2d at 1202). Where a decision is within the judicial discretion of the trial judge, as in determining the amount of alimony or child support, the standard for appellate review is abuse of discretion. Viewed as a matter of discretion, on appeal we can reverse only if no reasonable judge would have decided as this one did. See Canakaris, 382 So.2d at 1203 (“If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.”).

We agree with the wife’s position that there was record support for each of the lower court’s decisions and that no abuse of discretion has been demonstrated. See Reis v. Reis, 739 So.2d 704, 706 (Fla. 3d DCA 1999) (“It is not the role of this court to re-examine ... determinations of credibility”). Accordingly, the order under review is affirmed.

SHEPHERD, J., concurs.

ROTHENBERG, J.,

dissenting in part.

In a conclusory fashion, the majority affirms the parties’ final judgment of dissolution of marriage finding no abuse of discretion. A review of the evidence, as articulated in this dissent, however, demonstrates a clear abuse of discretion, requiring reversal of the trial court’s order.

Manuel Castillo (“Husband”) appeals from the final judgment dissolving his nearly twenty years of marriage to Mercedes Castillo (“Wife”). Because several of the issues raised by the Husband are meritorious, and these issues affect the calculation of the parties’ gross and net incomes, which, in turn, affects the child support and alimony awards, the final judgment should be reversed and remanded for further proceedings.

In November 2008, the Husband filed a petition to dissolve the parties’ marriage. At the final hearing held in July and August 2009, the parties presented the following evidence and testimony. The Husband and Wife have five children, two of whom are still minors. The Husband, who was then forty-eight years old, grossed, with overtime, $110,000 in 2008 as a homicide detective with the City of Miami Police Department. The Wife, who was then forty years old, stopped working shortly after the parties’ first child was born, but returned to the workforce approximately three years before the parties separated. She works during the school year at a public middle school as a Community Involvement Specialist. According to the Wife’s financial affidavit, she earns $16,291 annually, which is prorated over ten months.

After the final hearing, the trial court entered a final judgment, making the following findings as to the parties’ incomes: (1) the Wife’s gross annual income is $16,000; (2) the Wife’s monthly net income, which includes imputed minimum wage for the three summer months, is $1,800; (8) the Husband’s gross monthly income is $10,000, which includes $9,500 in salary and overtime, and $500 as the “conservative estimate of the value” for the Husband’s use of the police vehicle and the gasoline supplied by the City of Miami; and (4) the Husband’s net income is $7,000 per month. Although the trial court made findings as to the parties’ net income, the record does not clearly reflect how the trial court reached these calculations.

In addition to making findings as to income, the trial court, in part: (1) equitably distributed the parties’ liabilities and assets, including the Husband’s pension and retirement accounts; (2) awarded $3,300 per month in permanent periodic alimony to the Wife, finding that the Husband has the ability to pay $3,300 per month, and the Wife needs $2,600 in “after-tax alimony in order to maintain the lifestyle of the marriage”; (3) ordered the Husband to pay $990 per month in child support for the two minor children, taking into account that he .pays $257 per month for the minor children’s health insurance; and (4) allocated the federal dependency exemption for the two minor children solely to the Wife. Following- the entry of. the final judgment, the Husband filed this appeal, raising numerous issues.

The Husband contends that the trial court erred by adding $500 to his monthly gross income due to his use of the police vehicle. He is correct.

In computing a parent’s “gross income” for child support purposes, section 61.30(2)(a)(13), Florida Statutes (2009), provides that gross income includes “[r]e-imbursed expenses or in kind, payments to the extent that they reduce living expenses.” (emphasis added). In Sierra v. Ellison, 677 So.2d 406, 408 (Fla. 3d DCA 1996), this Court recognized that a “trial court may in its discretion include an allowance for [a] ‘take-home’ vehicle as part of [a parent’s] gross income if there is a readily calculable basis for doing so, but need not do so if the benefit is insubstantial or the amount of benefits is not readily calculable.” In calculating the Husband’s monthly gross income, the trial court included $500 for “in kind benefits,” which the trial court describes as the “conservative estimate of the value” for the Husband’s use of the police vehicle and the gasoline supplied by the City of Miami.

The record before this Court, however, reflects that neither party provided any evidence as to the value associated with the Husband’s personal use of the police vehicle. The undisputed evidence is, however, that the Husband is permitted to use the police vehicle to run errands on his way to or from work, but he cannot travel in the vehicle, and more importantly, he cannot transport his children in the police vehicle. The record reflects that the Husband, if he has not done so by now, will need to purchase a vehicle so that he can transport his children and use it for his personal needs. Therefore, as the sole family ear was awarded to the Wife, the Husband will have the added monthly expenses associated with purchasing and maintaining a vehicle. Thus, the trial court abused its discretion by: (1). including the additional $500 in the Husband’s gross income because -his personal use of the police vehicle is insignificant and the Wife failed to present any evidence as to the “value” of this insignificant use; and (2) giving no consideration to the additional expense the Husband will necessarily incur by obtaining a vehicle for his personal use and to transport his children.

Because the decrease in the Husband’s “gross income” will affect the child support calculations and the trial court’s determination of the amount awarded to the Wife in permanent periodic alimony, the final judgment should be reversed and remanded with instructions to require the parties to file updated’ financial affidavits, and thereafter, in light of these -affidavits, to recalculate net income, gross income, child support, and the amount of alimony. Furthermore, upon remand, as the record before this Court does not demonstrate how the trial court calculated, the parties’ net income,'and the record reflects that no expert testimony was provided to assist the trial court in making its determination, I would allow the trial court to accept expert testimony to assist it in calculating the parties’ net income.

The Husband also challenges other aspects of the trial court’s calculation of his and the Wife’s gross, and in turn, net incomes. Because the trial court’s calculation of the Wife’s net income cannot be reconciled with the record before this Court, reversal is required. For example, the Wife’s financial affidavits reflect that she works at a public middle school earning $16,291 per year, and that her annual pay is prorated over ten months, rather than the full calendar year. The trial court, however, imputed minimum wage to the Wife for the three summer months during which the Wife is not working at the middle school. Upon remand, this conflict should be resolved and the trial court should clarify exactly how many weeks of minimum wage income should be imputed to the Wife, and if necessary, recalculate the Wife’s net and gross income.

It is also unclear how the trial court calculated the Wife’s net monthly income, and once again, the trial court’s finding as to net monthly income cannot be reconciled with the record. Three months of imputed minimum wage totals approximately $3,480, and when added to the Wife’s annual salary of $16,291, her gross annual income is $19,771, which averages $1,647 per month. Furthermore, the Wife’s financial affidavit reflects that her monthly federal taxes, FICA, and Medicare payments total approximately $218 per month. Therefore, based on the Wife’s financial affidavit, her net monthly income is approximately $1,429, not $1,800, if three months of minimum wage is imputed. On the other hand, if two months of minimum wage is imputed to the Wife, the trial court’s finding that her net monthly income is $1,300 is reasonably accurate.

Although the record supports the trial court’s award of permanent periodic alimony to the Wife, because the trial court’s computation of the Wife’s income is inaccurate and the trial court improperly treated the Husband’s police vehicle as an “in kind” benefit in computing his income, a recalculation of the Wife’s alimony is required.

Additionally, when considering the parties’ “standard of living established during the marriage,” § 61.08(2)(a), Fla. Stat. (2009), equal consideration should be afforded to both parties, and the trial court is not required to award an amount of alimony that would allow the parties to maintain the same standard of living established during the marriage, as that may not be possible. In the instant case, the trial court awarded $3,300 in permanent periodic alimony to the Wife, finding that she “needs $2,600 after-tax alimony in order to maintain the lifestyle of the marriage.” The record reflects that equal consideration was not afforded the Husband, whose lifestyle has and will continue to be negatively altered based on the alimony and child support payments awarded by the trial court. As this Court stated in De Luca v. De Luca, 722 So.2d 947, 948 (Fla. 3d DCA 1998): “As is often the case in divorce, income that was once used to maintain one household must now be used to maintain two. If this means that both parties must reduce their standard of living, so be it.” (emphasis added). See also Austin v. Austin, 785 So.2d 528, 529 (Fla. 3d DCA 2001).

Lastly, the Husband has raised several issues pertaining to the equitable distribution and valuation of the parties’ assets and liabilities, including the division of the Husband’s pension and retirement funds. I find no error as to these issues. See § 61.075, Fla. Stat. (2009).

Accordingly, I would affirm in part, reverse in part, and remand for further proceedings.

      . The trial court failed to provide a guidelines scoresheet. However, in calculating the parties' child support obligations, the trial court found that the Husband’s net monthly income after paying alimony is $4,500. Although not specifically stated, it appears that the trial court found that the Husband's federal tax liability will be reduced by $800 per month due to the alimony payment. The trial court also found that the Wife's monthly net income after alimony is $3,900 ($1,300 in net income plus $2,600 in "after-tax alimony”). Although the Wife will have to pay federal taxes on the alimony and the Husband's federal tax liability will be reduced, the record does not indicate how the trial court calculated these figures. Based on the net income figures after alimony, the trial court found that based on the guidelines, the parties’ child support obligation would equal $2,052 per month, with the Husband being responsible for 54% and the Wife 46%. Further, taking into consideration that the Husband pays $257 per month for the minor children’s health insurance, the Husband was ordered to pay $990 per month in child support.

      . I would find that the trial court did not abuse its discretion in allocating the federal dependency exemptions for the two minor children to the Wife. However, I would require the parties to file updated financial affidavits because the financial affidavits contained in the record reflect that the Husband's net income was based on two dependents, whereas the Wife's financial affidavit was based on one dependent.


text:
    Acie Warren BENSON, Appellant, v. Eugenie M. FISHER, et al., Appellees.
    No. 3D10-402.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.
    Richard A. Sherman, Sr. and James W. Sherman, Ft. Lauderdale; and Adams, Adams & Baca, and Richard B. Adams, Jr., Miami, for appellant.
    Silverstein, Silverstein & Silverstein and Darryn L. Silverstein, Aventura; and Brett C. Powell, Palmetto Bay, for appel-lees.
    Before GERSTEN, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla.1995).


author: KHOUZAM, Judge.

text:
    Chad PIFER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5550.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.
    Rehearing Denied May 6, 2011.

      Chad Pifer, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Chad Pifer appeals an order denying his claims for postconviction relief. He also challenges his resentencing on remand. We affirm, but we write to address an issue that was raised in the trial court by way of a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The issue involves Pifer’s resentencing, on remand, by a successor judge without a showing that a substitution of judges was necessary.

In December 2005, Pifer entered a plea in eighteen separate cases involving burglary, dealing in stolen property, grand theft, possession of paraphernalia, and resisting arrest without violence. Pifer was adjudicated guilty and sentenced. The judgments and sentences were affirmed on appeal. Pifer v. State, 951 So.2d 40 (Fla. 2d DCA 2007).

In February 2008, Pifer filed a motion to correct illegal sentence, which was summarily denied. Pifer appealed the summary denial of his motion, and this court reversed and remanded for reconsideration. Pifer v. State, 8 So.3d 1154 (Fla. 2d DCA 2009). On remand, the postconviction court reconsidered Pifer’s claim as well as additional claims for postconviction relief that had been raised by Pifer. In October 2009, the postconviction court granted relief on the sentencing claim and the judge who presided over the postcon-viction claims also resentenced Pifer. This judge was not the judge who had accepted Pifer’s plea, but Pifer did not object to the successor judge presiding at his resentenc-ing hearing. The postconviction court otherwise denied relief on Pifer’s additional claims, including an ore tenus motion to withdraw the plea'that was made by Pifer’s counsel at the conclusion of the evidentiary hearing on Pifer’s postconviction claims.

This appeal ensued. During the pen-dency of this appeal, Pifer filed a motion to correct sentencing error pursuant to rule 8.800(b)(2). In the motion, Pifer did not assert a specific error in the corrected sentencing order that was entered on remand. Rather, Pifer challenged only the fact that he was resentenced by a successor judge without the showing of necessity required by Florida Rule of Criminal Procedure 3.700(c)(1). The judge who resen-tenced Pifer denied his rule 3.800(b)(2) motion in a lengthy order explaining that she had more recent familiarity with Pi-fer’s cases than did the judge who original ly sentenced Pifer and that Pifer had an opportunity to object before resentencing but failed to do so.

On appeal, Pifer argues that the post-conviction court erred in denying the ore tenus motion to withdraw plea and also that he must be afforded a new sentencing hearing because he was resentenced by a successor judge without a showing that a substitution of judges was necessary. We affirm the denial of the motion to withdraw plea without further discussion.

We also affirm on the issue concerning Pifer’s resentencing by a successor judge. Our decision on this issue turns on whether resentencing by the successor judge is a sentencing error as contemplated by rule 3.800(b)(2). Although Pifer raised this issue in a rule 3.800(b)(2) motion, he did not contemporaneously object to resentencing by the successor judge. In fact, during the resentencing hearing the judge asked all the attorneys if they wanted to make any additional arguments concerning resentencing and asked Pifer if he wished to say anything before she pronounced the sentence, and neither defense counsel nor Pifer expressed any concern about the successor judge presiding over resentencing.

If resentencing by á successor judge without a showing of necessity is a “sentencing error,” the error can be preserved by a rule 3.800(b)(2) motion. If it is not, absent a proper objection,'this court may review the issue only for fundamental error.

Explaining that. “[a]ppellate courts have disagreed on what kind of errors constitute ‘sentencing errors’ subject to [rule 3.800(b) ],” the supreme court has provided a framework for determining whether a particular error constitutes a sentencing error. Jackson v. State, 983 So.2d 562, 569 (Fla.2008). Under Jackson, “ ‘a “sentencing error” that can be preserved under rule 3.800(b)(2) is an error in the sentence itself — not any error that might conceivably occur during a sentencing hearing.’” Id. at 573 (quoting Jackson v. State, 952 So.2d 613, 616 (Fla. 2d DCA 2007) (Stringer, J., specially concurring)). Rule 3.800(b) “may be used to correct and preserve for appeal any error in an order entered as a result of the sentencing process — that is, orders related to the sanctions imposed.” Jackson, 983 So.2d at 574. However, á claim of error in the sentencing process is not cognizable in a motion under rule 3.800(b). See id.

Here, the resentencing by a successor judge without a showing of necessity, if error at all, was an error in the sentencing process, not in the sentencing order. As such, Pifer’s rule 3.800(b)(2) motion could not preserve this claim of error. It can be reviewed only for fundamental error. See Jackson, 983 So.2d at 568-69.

“‘[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.’” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (alteration in original) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)). Pifer has not established that the resentencing process, which was conducted by the successor judge, was equivalent to a denial of due process. Furthermore, this resentencing process did not offend a fundamental constitutional right that would mandate reversal without regard to its effect on the outcome. See, e.g., Jackson, 983 So.2d at 576.

We thus affirm on this issue because we find that Pifer did not adequately preserve this issue and fundamental error did not occur.

In reaching this conclusion, we are mindful that this court has previously considered such a claim cognizable under rule 3.800(b)(2). See Boyd v. State, 988 So.2d 1242, 1245 (Fla. 2d DCA 2008); Kramer v. State, 970 So.2d 468 (Fla. 2d DCA 2007); Young v. State, 950 So.2d 516 (Fla. 2d DCA 2007); Lopez v. State, 905 So.2d 1045 (Fla. 2d DCA 2005); Snyder v. State, 870 So.2d 140 (Fla. 2d DCA 2004); Persaud v. State, 821 So.2d 411, 413 (Fla. 2d DCA 2002); see also Horne v. State, 918 So.2d 1011 (Fla. 2d DCA 2006) (granting petition alleging ineffective assistance of appellate counsel where appellate counsel failed to file a rule 3.800(b)(2) motion challenging a violation of rule 3.700(c)(1)); Hakkenberg v. State, 889 So.2d 935 (Fla. 2d DCA 2004) (same). However, these cases did not address the supreme court’s Jackson decision, in which it clarified the scope of rule 3.800(b). To the extent that our prior decisions determined that a claim of error with respect to resentencing by a successor judge in violation of rule 3.700(c)(1) could be preserved by a rule 3.800(b)(2) motion, they are inconsistent with the principles set forth by the supreme court in Jackson, which we are bound to follow.

Affirmed.

LaROSE and CRENSHAW, JJ., Concur.

      . Pifer v. State, 8 So.3d 1154 (Fla. 2d DCA 2009) (reversing and remanding summary denial of Pifer’s claim that his sentence of twelve years' incarceration to be followed by ten years’ drug offender probation exceeded the eighteen-year sentencing cap specified in his plea agreement).

      . This motion concerned the sentence imposed in only one of the eighteen cases (case number 2005-CF-2488).


author: WALLACE, Judge.

text:
    Xavier D. HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1632.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Xavier D. Howard challenges his convictions and sentences for possession of cocaine with intent to deliver within 1000 feet of a school, possession of cannabis, and driving while license suspended or revoked (DWLSR) following his guilty plea. Mr. Howard’s appellate counsel initially filed an Anders brief, asserting that no issue of arguable merit could be found to support significant reversible error in this case. But our review of the record and of the applicable law reflected issues of potential merit in the denial of Mr. Howard’s motion to suppress, which he preserved for appellate review and which could affect his drug-related convictions. Accordingly, we directed the parties to file supplemental briefs addressing the denial of Mr. Howard’s motion to suppress. After reviewing the parties’ supplemental briefs, we affirm.

In the circuit court, Mr. Howard challenged the search of a vehicle that he was driving and moved to suppress tangible evidence discovered in the vehicle and his statements following his arrest for DWLSR. A warrant had been issued to search the premises onto which Mr. Howard drove just before the warrant was executed. And law enforcement officers searched Mr. Howard’s vehicle incident to his arrest for DWLSR and under the authority of the warrant. Following an evi-dentiary hearing, the circuit court found that the search was valid as a search incident to Mr. Howard’s arrest and under the warrant. Accordingly, the circuit court denied Mr. Howard’s motion to suppress.

But the search occurred — and the circuit court ruled on the motion to suppress— before the United States Supreme Court issued its decision in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Gant held that a search incident to an arrest must be justified by interests of officer safety or to preserve evidence, stating as follows:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Id. at 1723-24 (emphasis added). Because Gant issued after the suppression hearing in this case, the parties did not address the limitations imposed by Gant and the circuit court did not make any factual findings relevant to Gant. But the record suggests that the subject search did not fall within the limitations of Gant, and the parties have not persuasively argued in their supplemental briefs that the search of Mr. Howard’s vehicle incident to his arrest was permissible under Gant or that another exception to the warrant requirement applied under the facts developed at the suppression hearing. Thus it appears that the search of Mr. Howard’s vehicle incident to his- arrest was illegal under Gant.

We conclude that the good faith exception to the exclusionary rule would apply to this pre-Gant search that was in the pipeline when Gant was decided. The First and Fifth Districts have held that the good faith exception applies to such searches. See State v. Harris, 36 Fla. L. Weekly D133, D134 (Fla. 1st DCA Jan. 19, 2011); Brown v. State, 24 So.3d 671, 680-82 (Fla. 5th DCA 2009). In Harris, the First District observed “that the exclusionary rule is intended to deter police misconduct, not to remedy the prior invasion of a defendant’s constitutional rights.” Id. at D134. And before the Supreme Court’s decision in Gant,

[t]he bright-line rule of [New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)], which approved searches of a vehicle’s passenger compartment after the police had secured the arrestee, had been accepted for 28 years, [and] “was taken literally by federal courts across the country and all of the courts in Florida,” and was “widely taught in police academies.”

Id. (quoting Brown, 24 So.3d at 680-81). Thus, “[t]o apply the exclusionary rule in [such] case[s] cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate.” Id. (quoting Brown, 24 So.3d at 681).

Here, the search occurred on May 30, 2008, and the circuit court ruled on Mr. Howard’s motion to suppress on January 7, 2009. Mr. Howard filed his notice of appeal on March 3, 2009, and the opinion in Gant issued on April 21, 2009. Thus this case involves a pre-Gant search, and Mr. Howard’s appeal was “in the pipeline” when the Supreme Court decided Gant. We adopt the reasoning in Harris and Brown and conclude that the good faith exception applies to the search incident to arrest in this case, where the officers conducted the search incident to Mr. Howard’s valid arrest for DWLSR in accordance with the then-existing precedent.

In addition, based upon our review of the record, the applicable case law, and the parties’ supplemental briefs, we conclude that the search of the vehicle that Mr, Howard was driving fell within the scope of the subject warrant and that the search was not illegal. The warrant stated in pertinent part as follows:

This warrant shall include the house and all sheds and/or out building affixed or unaffixed to the main structure of the residence on the said premises. The warrant shall also include all vehicles on the premises and curtilage of 3002 North Sanchez Street, Hillsborough County, Tampa[,] Florida, under 'the control of the occupants and/or persons present in the residence during the execution of the search warrant.

(Emphasis added.) The circuit court’s finding that Mr. Howard’s vehicle was on the premises when the warrant was executed is supported by competent, substantial evidence in the record. In addition, the record supports the conclusion that the law enforcement officers reasonably believed that Mr. Howard was an occupant of the premises at the, .time of the search. Thus the search of Mr. Howard’s vehicle was authorized by the warrant. See Lowe v. State, 751 So.2d 177, 178-79 (Fla. 2d DCA 2000) (holding that a warrant authorizing the search of “any and all ... vehicles” on the premises permitted police to search the vehicle that the defendant drove onto the premises during execution of the warrant, and quoting State v. Freeman, 673 So.2d 139, 141 (Fla. 5th DCA 1996), for the proposition that no “nexus between any vehicle found on the property and the alleged illegal activity” was required when the search was authorized by the warrant); State v. Booream, 560 So.2d 1303, 1304 (Fla. 2d DCA 1990) (holding same).

Because the good faith exception to the exclusionary rule applies to the search of the vehicle incident to Mr. Howard’s arrest and because the search fell within the scope of the warrant, the circuit court did not err in denying Mr. Howard’s motion to suppress. Accordingly, we affirm Mr. Howard’s judgment and sentences.

Affirmed.

WHATLEY and LaROSE, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Because the purpose of the exclusionary rule is to deter police misconduct, "[i]t is a rule of last resort, only to be applied when it 'resultfs] in appreciable deterrence' and the benefits of deterrence outweigh the societal costs of suppressing evidence, thereby frustrating the truth-seeking process.” Brown v. State, 24 So.3d 671, 680 (Fla. 5th DCA 2009) (quoting United States v. Leon, 468 U.S. 897, 909-10, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Thus, the exclusionary rule applies when police misconduct is “deliberate, reckless, or grossly negligent ... or in some circumstances recurring or systemic negligence,” but not when police have acted in good faith. Id. (alteration in original) (quoting Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009)).

      . For an exhaustive list of state and federal cases applying the good faith exception to the exclusionary rule to pre-Gant vehicle searches incident to a defendant's arrest and of those rejecting application of the good faith exception to such cases, see Harris, 36 Fla. L. Weekly at D134 nn. 1-2.


author: TORPY, J.

text:
    SHERIFF OF SEMINOLE COUNTY, Florida, Appellant, v. Steven OLIVER, Appellee.
    No. 5D10-2940.
    District Court of Appeal of Florida, Fifth District.
    March 25, 2011.
    Rehearing Denied April 28, 2011.
    April Kirsheman, Sanford, Thomas W. Poulton and Colin S. Baker of DeBevoise & Poulton, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   TORPY, J.

The Seminole County Sheriff appeals the trial court’s order finding no probable cause following a preliminary adversary hearing under the Florida Contraband Forfeiture Act. We affirm.

Appellee committed numerous grand thefts by embezzling money from his employer, a charitable organization. He accomplished the crimes by stealing his employer’s checks and, using the electronic signature of another employee, naming himself as payee. He then deposited the checks into his bank account and used the proceeds to buy numerous items of personal property, such as computer equipment, a gun and photography accessories. When caught, he confessed to the crimes and admitted that the items of personal property were the ill gotten gains of his crimes.

Appellant sought to forfeit the items pursuant to the Florida Contraband Forfeiture Act. §§ 932.701-.706, Fla. Stat. (2009). The trial court concluded that the items were not subject to forfeiture and denied probable cause to proceed after a preliminary adversary hearing pursuant to section 932.703(2)(c). That section directs the trial court to determine if the property “was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act.” Appellant contends that this property was used in contravention of the Act because the items meet the statutory definition of “contraband articles,” the possession of which is unlawful under section 932.702(2).

The Act defines “contraband article,” in pertinent part as:

Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.

§ 932.701(2)(a)5., Fla. Stat. (2009) (emphasis added). Appellant first contends that the stolen checks, as negotiable instruments, are “contraband articles” under this definition and that the seized items of personal property are the proceeds from the use of these contraband articles. This argument overlooks that, by definition, for negotiable instruments to be forfeitable as contraband articles, they must be “used as instrumentalities in the commission of a felony.” Here, the checks belonged to the victim and were the targets of the thefts. The crimes were complete when the targeted items were misappropriated, making them the fruits of the crimes, rather than instruments used to accomplish the crimes. Therefore, the checks themselves were not “contraband articles,” as defined. See In re Forfeiture of 1979 Mercedes, 4-Door, VIN No. 11603312085778, TAG No. WHJ 371, 484 So.2d 642, 644 (Fla. 4th DCA 1986) (defining instrumentality as a means by which something is accomplished). The same would be the case if a thief stole a weapon, tool, money or any other item expressly enumerated in the statutory definition of “contraband article.” In such a case, because the stolen items are simply the fruits of the crime of theft, they are not “used as instruments” of the same theft.

Alternatively, Appellant contends that, even if the checks were not themselves “contraband articles,” the property could nevertheless be forfeited as the traceable proceeds of a felony. This argument ignores the statutory language that limits the type of proceeds subject to forfeiture to those “obtained as a result of a violation of the Florida Contraband Forfeiture Act.” The violations of the Act are listed in section 932.702. The only violation relevant here is the prohibition against possession of any “contraband article.” See § 932.702(2), Fla. Stat. (2009); see also § 932.703(l)(c), Fla. Stat. (2009). Because the checks were not “contraband articles,” the proceeds from the possession of the checks cannot be considered proceeds obtained from a “violation of the Act.”

Even if the checks or proceeds here could meet the technical definition of “contraband articles,” thereby permitting Appellant to satisfy the statutory probable cause standard, because Appellant was fully aware at the outset that the items were the traceable proceeds of a theft from an innocent owner, it is difficult to understand how Appellant can initiate and prosecute forfeiture proceedings in good faith. The express policy of the Act is that “law enforcement agencies ... utilize the ... Act ... to prevent the ... use ... of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners .... ” § 932.704(1), Fla. Stat. (2009) (emphasis added). To prevail at trial, the seizing agency must prove by a preponderance of the evidence that the “owner either knew, or should have known ... that the property was being employed or was likely to be employed in criminal activity.” § 932.703(6)(a), Fla. Stat. (2009). Under the facts of this case, Appellant clearly could not meet this standard.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . We do not address today the circumstance where the fruit of one crime is used as an instrument to commit a separate crime against a different victim.

      . The classic example of the application of this aspect of the definition is when illegal drugs are sold. The Act includes illegal drugs in the definition of "contraband article” (albeit under a different definitional section). § 932.70l(2)(a)l., Fla. Stat. (2009). Thus, where illegal drugs are exchanged for money, the money constitutes proceeds under the Act because it is obtained as a result of a violation of the Act — the possession of the contraband article.


author: VILLANTI, Judge.

text:
    A.S.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5362.
    District Court of Appeal of Florida, Second District.
    March 25, 2011.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

A.S.B. seeks review of his adjudication of guilt for the offense of grand theft motor vehicle and the resulting disposition order which committed him to a high-risk facility. We affirm A.S.B.’s adjudication of guilt and commitment to a high-risk facility without comment. However, we remand for entry of a new disposition order because the current disposition order fails to clearly specify the maximum time that A.S.B. may be committed to the Department of Juvenile Justice.

. A.S.B. ’was fourteen years old when he committed the offense of grand theft motor vehicle. This offense is a third-degree felony punishable by up to five years in prison. See §§ 812.014(2)(c)(6), 775.082(3)(d), Fla. Stat. (2009). A.S.B.’s disposition order provided, in pertinent part,

The Child is committed to the Department of Juvenile' Justice (DJJ) for an indeterminate period, which shall not extend beyond the Child’s 21st birthday or the maximum allowed by law.

At the top of the disposition order, the order stated that the offense of grand theft motor vehicle was a “3rd Degree Felony punishable by up to 5 years.”

Counsel for A.S.B. initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel raised a “minor sentencing issue” concerning the length of A.S.B.’s commitment. Counsel argued that the disposition order was ambiguous and should be corrected because the language of the order could be construed- as permitting the Department to retain jurisdiction over A.S.B. for longer than the statutory maximum. We requested supplemental briefing on this issue, and the State has properly conceded error in its supplemental answer brief.

An order that “commitfsj a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the statutory maximum provided for the particular offense.” L.W.G. v. State, 785 So.2d 696, 696 (Fla. 4th DCA 2001); see also J.E.R. v. State, 56 So.3d 821, 822 n. 1 (Fla. 2d DCA 2011). When the juvenile is young enough that the statutory maximum for the offense will expire before the juvenile reaches majority, a disposition order that appears to permit the Department to choose between retaining jurisdiction until either the statutory maximum for the offense or the child’s twenty-first birthday is ambiguous because it could be construed as extending commitment past the statutory maximum and until the specified birthday. See J.E.R., 56 So.3d at 822 n. 1; R.P. v. State, 695 So.2d 490, 490 (Fla. 4th DCA 1997); M.S. v. State, 675 So.2d 215, 216 (Fla. 4th DCA 1996). In such an instance, the disposition order must be reversed and remanded for the trial court to enter an order that specifies the period of commitment actually imposed by the court. See S.B. v. State, 834 So.2d 964, 964 (Fla. 2d DCA 2003); L.W.G., 785 So.2d at 696-97 (reversing for entry of disposition orders that specifically limited the period of commitment to the applicable statutory maximum); R.P., 695 So.2d at 490 (reversing for entry of a disposition order that specifically limits commitment “to no more than sixty days which is the maximum term an adult can serve for the same offense”); M.S., 675 So.2d at 216 (noting that the disposition order “should have specified a commitment for one year, the maximum allowable sentence for this misdemeanor” (footnote omitted)).

In this case, the disposition order entered by the trial court could be construed to give the Department discretion to maintain jurisdiction for either the five-year statutory maximum or until A.S.B.’s twenty-first birthday, whichever it chooses. However, given A.S.B.’s young age at disposition, commitment until his twenty-first birthday would result in a sentence that exceeds the statutory maximum for his third-degree felony offense. Because the disposition order entered in this case did not clearly limit A.S.B.’s sentence to the five-year statutory maximum, we must reverse. On remand, the trial court is instructed to enter a disposition order that clearly limits A.S.B.’s commitment to no more than five years, which is the maximum term an adult can serve for the same offense.

Affirmed in part, reversed in part, and remanded with instructions.

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

      . A.S.B. raised this issue in a timely motion to correct disposition error filed pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2); however, the trial court never ruled on this motion.

      . We recognize that section 985.455(3),' Florida Statutes’(2009), requires that commitment to the Department be “for an indeterminate period of time.” However, the same statute prohibits commitment for longer than "the maximum term of imprisonment that an adult may serve for the same offense,” id., and section 985.0301(5)(c) prohibits the Department or the court from exercising jurisdiction after the child turns twenty-one years of age. While we usually condone a trial court's use of the exact statutory language when disposing of criminal cases, when the juvenile’s age at disposition renders the statutory language ambiguous as applied to that juvenile, such a "one size fits all” approach to disposition orders may be inappropriate.


text:
    Woodrow THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0796.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Woodrow Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Dexter GILBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0864.
    District Court of Appeal of Florida, First District.
    March 28, 2011.
    Dexter Gilbert, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

WOLF, DAVIS, and PADOVANO, JJ., concur.


text:
    Vincent Lee KITTRELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0907.
    District Court of Appeal of Florida, First District.
    March 28, 2011.

      Vincent Lee Kittrell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, DAVIS, and PADOVANO, JJ., concur.


author: DAMOORGIAN, J.

text:
    Peter ROUSSONICOLOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3449.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Rehearing Denied May 12, 2011.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo. Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Appellant, Peter Roussonicolos, appeals his judgment and sentence for organized scheme to defraud. Roussonicolos raises a number of points on appeal in connection with the trial court’s rulings on evidentiary matters. One of the issues raised is whether the trial court incorrectly ruled that Roussonicolos’ co-defendant’s prior testimony exonerating Roussonicolos was inadmissible. We hold that the trial court reversibly erred in ruling that the prior testimony was inadmissible and remand for a new trial. We find no merit to Roussonicolos’ other points on appeal.

Roussonicolos and his co-defendant, Seamus Limato, worked together in Rous-sonicolos’ business. At some point during their business relationship, Roussonicolos and Limato were charged with organized scheme to defraud over $20,000. The essence of the State’s case was that Rous-sonicolos and Limato were writing bad checks to themselves and each other, depositing them, and then withdrawing the funds before the payee bank discovered that the checks had been drawn on accounts that had insufficient funds. The trial was severed, and Roussonicolos’ theory of defense was that Limato acted alone, and without Roussonicolos’ knowledge or consent.

In support of his defense, Roussonicolos attempted to introduce a transcript of his bond hearing containing Limato’s sworn testimony. According to Limato, he was serving as a middle man selling products for Roussonicolos’ business. Limato would arrange sales, and then purchase products from Roussonicolos to fill the orders. Roussonicolos, in turn, would pay commissions to Limato. Limato had written a number of bad checks to Roussonicolos, on the belief that his customers’ checks, which he deposited into his own account, were good. Roussonicolos had thereafter written checks to Limato for commissions earned on the sales and for consulting work. However, because Limato’s checks to Roussonicolos were bad, Roussonicolos had no money in his account to cover his checks to Limato. As a result, both Lima-to’s and Roussonicolos’ accounts had large deficiencies. Most importantly, Limato admitted that he was solely responsible for the bad checks and that Roussonicolos was unaware that the checks were drawn on accounts with insufficient funds.

By the time Roussonicolos went to trial, Limato had invoked his Fifth Amendment right against self-incrimination and was unavailable to testify. When Roussonico-los attempted to introduce the transcript of Limato’s testimony, the State objected on hearsay grounds. Roussonicolos responded that Limato’s testimony fell within the former testimony exception to the hearsay rule. The State countered that the prosecutor at the VOP status hearing had not had a full opportunity to cross-examine Limato. The trial court sustained the objection, in part relying upon the mistaken belief that the charges against Roussonicolos had not been filed at the time of the hearing.

The standard of review of a trial court’s ruling on the admission of evidence is abuse of discretion. However, the court’s exercise of its discretion is limited by the rules of evidence. Hudson v. State, 992 So.2d 96, 107 (Fla.2008).

Section 90.804(2)(a), Florida Statutes (2007) provides that so long as the declarant is unavailable to testify, his/her testimony will not be excluded if it is:

(a) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

It is undisputed that by invoking his Fifth Amendment right against self-incrimination, Limato was unavailable to testify. Henyard v. State, 992 So.2d 120, 126 n. 3 (Fla.2008). We therefore turn to whether the State had an opportunity and similar motive to develop Limato’s testimony on cross examination.

In Garcia v. State, 816 So.2d 554 (Fla.2002), the Supreme Court applied the “similar motive” test where the defendant sought to introduce the prior testimony of his co-defendant who was unavailable to testify at the defendant’s own trial. Garcia and his co-defendant, who were charged with murder, had their trials severed. Id. at 557 n. 2. The co-defendant was tried first, and he provided testimony at his own trial that tended to exonerate Garcia. Id. at 557. However, he invoked his Fifth Amendment right during Garcia’s trial and refused to testify. Id. at 564. Garcia attempted to admit the transcript of his co-defendant’s testimony, but the trial court denied the request. Id. On appeal, the Supreme Court reversed the trial court concluding that under the statute, an “identical” motive was not required, but merely a “similar” one. Id. The court considered the State’s motive at both trials to be similar. In both instances, the motive was “to discredit [the witness’s] testimony and show it to be not worthy of belief.” Id. at 565. The court went on to say

[m]oreover, the failure to allow the jury to hear this testimony deprived the jury of important additional evidence that could have been critical to assessing Garcia’s guilt. Indeed, where Garcia’s alleged involvement in the crimes hangs on the testimony of one individual-Rib-era-the jury was entitled to consider the testimony of the [co-defendant], who took the stand in his own trial and specifically testified that Garcia was not involved in these murders. In this case, to prevent the jury from, hearing the prior recorded testimony of [the co-defendant], which the State subjected to cross-examination, is to apply the hearsay rule “mechanistically to defeat the ends of justice.” For all these reasons, the exclusion of [co-defendant’s] prior sworn testimony constituted error, which ... was not harmless beyond a reasonable doubt.

Id. at 555-56 (citation omitted).

The State argues that Limato’s former testimony should be inadmissible because the scope of inquiry conducted at the bond hearing bore little resemblance to scope of the examination at trial. In support of its argument, the State relies on Nazworth v. State, 352 So.2d 916 (Fla. 1st DCA 1977).

In Nazworth, the court determined that previous testimony against a defendant was not admissible because it had been secured through threats, and because it was given at a bond hearing. The court went on to say that “[t]he extensive redirect of [the witness] by the state after the limited cross-examination by [defendant’s] counsel did not afford defendant an opportunity for proper cross that would have been available had [the witness] testified at trial.” Id. at 918. The State argues that it likewise lacked “an opportunity for proper cross that would have been available had [the witness] testified at trial.” We reject the application of Naz-worth to this case.

We do not read Section 90.804(2)(a) to require that, in order for prior testimony to be admitted as an exception to the hearsay rule, the opponent of the evidence must have the same motivation to examine the witness in both the prior proceeding and the one in which the prior testimony was being introduced. Nor, as the State suggests, must the scope of inquiry conducted at the bond hearing be the same as the scope of the examination at trial. Garcia, 816 So.2d 554. To require such a high standard would render this hearsay exception useless.

There appear to be no Florida cases addressing the applicability of section 90.804(2)(a) where the prior testimony was provided at a bond hearing. Roussonicolos cites to two Texas cases that address this issue. O’Neal v. Johnson, 54 F.Supp.2d 695, 698 (S.D.Texas 1999); Ward v. State, 910 S.W.2d 1 (Tex.Ct.App.1995). Both cases interpret the “former testimony” provision in the Texas evidence code, which is strikingly similar to the Florida statute section 90.8.02 at issue in this case, Texas Rule of Criminal Evidence 804(b)(1). Both statutes contain the “opportunity and similar motive” language which is the subject of our case.

In Ward, the State sought to introduce the prior testimony of the victim, a minor, who at trial refused'to testify about the criminal acts perpetrated upon her by the defendant. Ward, 910 S.W.2d at 2. Over the defendant’s objection, the State moved to introduce a transcript of the victim’s prior sworn testimony given at a bond revocation hearing. Id. The trial court allowed the transcript to be introduced. Id. On appeal, the defendant argued that it was improper to allow the introduction of the victim’s prior testimony from the bond hearing since the defendant would not have had a similar motive to develop the victim’s testimony at the bond hearing. Id. at 3. In concluding that the trial court correctly allowed the introduction of the victim’s prior testimony, the Texas Court of Appeals reasoned that

Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial. It requires only that he have had a “similar” motive. “[N]either the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same.” (citation omitted). “[0]nly the particular issue as to which the testimony was first offered must be substantially similar to the issue upon which offered in the current action.” (citations omitted). As with opportunity, similar motive vel non must be determined on a case-by-case basis, according to the particular facts and circumstances.

Id. at 3 (citations omitted).

Similarly, in O’Neal the defendant attempted, over the State’s objection, to introduce the prior testimony at his bond reduction hearing of an alibi witness who became unavailable to testify at defendant’s trial. O’Neal, 54 F.Supp.2d at 695. The trial court sustained the State’s objection and the defendant was found guilty of the criminal charges. On a habeas petition before the United States District Court, the defendant argued that his Sixth Amendment right to compel the testimony of a material witness was violated when the trial court refused to permit the introduction of the prior testimony of defendant’s alibi witness who was unavailable for trial. Id. at 698. In granting the petition, the court reasoned:

Rule 804(b)(1) of the Texas Rules of Criminal Evidence, just like its federal counterpart, provides that testimony given at a prior hearing is admissible if the declarant is unavailable and the party against whom the testimony is offered had an opportunity and a similar motive to develop the testimony by examination of the witness/declarant at the jprior hearing_[T]he state had cross-examined Williams at the prior hearing on the bond reduction and given the extreme exculpatory nature of her testimony, it certainly had the motive, whether acted upon or not, to fully develop her testimony. Indeed, her testimony, if true, established O’Neal’s innocence and was fatal to the prosecution.

Id. (citations omitted). We find the decisions in Ward and O’Neal to be persuasive and adopt the reasoning of both courts.

In the instant case, the purpose of the hearing was for the court to consider whether Roussonicolos should be released and, if so, what conditions should be imposed pending his final VOP trial. Therefore, the trial court necessarily would have been concerned with whether the State had a prima facie case in order to determine whether Roussonicolos was a flight risk. § 903.046(2)(b), Fla. Stat. (2007); Good v. Wille, 382 So.2d 408, 410 (Fla. 4th DCA 1980) (holding that one of the factors to be considered in setting bail is “the character and strength of the evidence or probability of guilt”). Within this context, the State, in opposing Roussonicolos’ release, would have been motivated to proffer sufficient evidence to establish a prima facie case that Roussonicolos was guilty of the charge. The State had an opportunity to cross-examine Limato at the bond hearing. It also had a “similar motive” at both the trial and the bond hearing, specifically “to discredit [the witness’] testimony and show it to be not worthy of belief’ given the exculpatory nature of Limato’s testimony. See Garcia, 816 So.2d at 565; O’Neal, 54 F.Supp.2d at 698-99.

Under the circumstances of this case, we hold that the trial court erred in concluding that Limato’s testimony did not fall within section 90.804(2)(a).

We next address whether the omission of Limato’s testimony was harmless. We conclude that it was not. The harmless error test “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The State presented substantial evidence of Roussonicolos’ guilt. This included extensive testimony by bank personnel and pictures of Roussonicolos and Limato together while cashing some of the bad checks. Based on this evidence, the jury could have inferred that Roussonieo-los and Limato were working together to commit bank fraud. However, in Limato’s testimony at the bond hearing, he took sole responsibility for the bad checks and overdrawn bank accounts. He claimed Roussonicolos had engaged in no wrongdoing, and he provided an explanation for the evidence against Roussonicolos. Limato’s testimony was valuable not only because it tended to exonerate Roussonicolos at Li-mato’s own expense, but also because Li-mato, as Roussonicolos’ alleged principal, had unique knowledge of Roussonicolos’ role in the events.

Accordingly, Roussonicolos’ conviction and sentence are reversed and the cause remanded for a new trial.

Reversed and Remanded.

MAY and LEVINE, JJ., concur.

      . Roussonicolos had been on probation. The charge, which is the subject of this appeal, resulted in his arrest on a violation of probation (VOP). At a status conference on the pending VOP, Roussonicolos' counsel requested that Roussonicolos be released on his own recognizance pending his trial on the probation violation. It was at this hearing that Limato was called to testify.

      . On appeal, the State concedes that the charges had been filed one month prior to the bond hearing.

      . Curiously, the State makes no reference to the statutory exception to the hearsay rule which is the subject of this appeal, relying instead on the Florida Supreme Court’s decision in Thompson v. State, 619 So.2d 261 (Fla.1993). Although Thompson was argued on constitutional grounds, the Supreme Court determined that Thompson’s confrontation rights under the Florida and United States Constitutions were not abridged so long as the party against whom the testimony is being offered had an opportunity at the prior proceeding to cross-examine the witness. Id. at 265 (citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)).

      . Rule 804(b)(1), Texas R. Crim. Evid. provides that the following are not excluded if the declarant is unavailable as a witness:
      (1) Former Testimony.... [T]estimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”


author: STEVENSON, J.

text:
    Gregory K. TALBOTT, Appellant, v. FIRST BANK FLORIDA, FSB, f/k/a Unibank, The Atlantic Land Company, a Florida corporation, John E. Carter, an individual; and Robert J. Roschman, as trustee of the Robert J. Roschman Revocable Trust u/d/a 10/11/00, Appellees.
    No. 4D09-3226.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2011.
    Rehearing Denied May 12, 2011.

      Ryan E. Willits of Willits & Associates, P.A., Boca Raton, for appellant.
    Tyler K. Pitchford, Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, and John E. Carter of Carter Law Firm, Boca Raton, for appel-lee The Atlantic Land Company.
   STEVENSON, J.

Gregory K. Talbott, the would-be buyer in a contract for the sale of real property, appeals a $1,475,000 judgment in favor of the would-be seller, The Atlantic Land Company (Atlantic), which was entered after Talbott failed to specifically perform the contract as ordered by the trial court. The order requiring specific performance and the judgment in favor of Atlantic were precipitated by an order of summary judgment, where the trial court found that the relevant provisions of the sale contract were unambiguous and that Talbott had breached the contract by failing to accept Atlantic’s notice of closing. Because we cannot agree that the contract was unambiguous, we reverse the order of summary judgment and the orders that followed.

On June 1, 2007, Talbott entered into a contract to purchase real property from Atlantic. An addendum to the contract was executed on June 13, 2007. The addendum requires that Talbott pay deposits totaling $200,000 and sets forth a schedule of payments. The addendum’s payment schedule requires that Talbott make an initial deposit payment of $10,000 on June 1, 2007, requires monthly deposit payments of $25,000 thereafter, and concludes with a $75,000 payment due on or before November 15, 2007. With regard to closing, the addendum provides as follows:

3. CLOSING DATE. The Closing Date shall be set by Buyer giving Seller 30 days written notice of the Closing. Notwithstanding the foregoing, Seller may require the Closing to occur at any time on or after October 31, 2007 by giving 120 days written notice to Buyer. Buyer and Seller shall provide closing instructions, if any, within 15 days of the Closing Date.

On August 30, 2007, Atlantic delivered to Talbott a written “Notice to Close,” setting a closing date of January 2, 2008— 124 days from August 30, 2007. Talbott rejected the notice, taking the position that, under the contract, Atlantic could not give notice to close until after October 31, 2007, and that the earliest possible closing date that could be set by Atlantic was March 1, 2008-120 days from October 31, 2007. Atlantic insisted that, under the plain and unambiguous language of the contract, it could send a notice to close at any time so long as the designated closing date was both 120 days from the notice and after October 31, 2007. The litigation that gave rise to this appeal followed. The trial court found that the contract was clear and unambiguous, accepting the construction advanced by Atlantic, and that Talbott had breached the contract by rejecting Atlantic’s notice to close.

When the language of a contract is clear and unambiguous, courts must give effect to the contract as written and cannot engage in interpretation or construction as the plain language is the best evidence of the parties’ intent. See, e.g., Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000). Where, however, a contract term is susceptible to more than one reasonable interpretation, extrinsic evidence may be considered by the court to ascertain the intent of the parties. See Murley v. Wiedamann, 25 So.3d 27, 30 (Fla. 2d DCA 2009), review denied, 36 So.3d 657 (Fla.2010). When a contract is ambiguous, an issue of fact is created that cannot be resolved by summary judgment. See Soncoast Cmty. Church of Boca Raton, Inc. v. Travis Boating Ctr. of Fla., Inc., 981 So.2d 654, 655 (Fla. 4th DCA 2008). Whether a contract is ambiguous is a question of law. See, e.g., Detroit Diesel Corp. v. Atl. Mut. Ins. Co., 18 So.3d 618, 620 (Fla. 4th DCA 2009).

A contract should be read as a whole. See Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006). Troubling is the addendum’s.language providing that the seller “may require the Closing to occur at any time on or after October 31, 2007 by giving 120 days written notice” when considered in light of the fact that the final deposit on the contract was not due until November 15, 2007. Atlantic’s interpretation could have required a closing prior to the due date of the final deposit; a plausible, but hardly unambiguous intention of the addendum’s language. We thus find that the interpretation advanced by each party is plausible and that the contract is ambiguous as to whether Atlantic could tender a notice of closing prior to October 31, 2007, and schedule a closing date prior to March 1, 2008. See Soncoast Cmty., 981 So.2d at 656 (“‘Whether a document is ambiguous depends upon whether it is reasonably susceptible to more than one interpretation.’”) (quoting Lambert v. Berkley S. Condo. Ass’n, 680 So.2d 588, 590 (Fla. 4th DCA 1996)). Accordingly, we reverse the order of summary judgment and the orders that followed, remanding the matter to the trial court for the taking and consideration of extrinsic evidence concerning the parties’ intent.

Reversed and Remanded.

GROSS, C.J., and GERBER, J., concur.


author: SALTER, J.

text:
    CARLTON FIELDS, P.A., Appellant, v. Edward J. LoCASCIO, Appellee.
    Nos. 3D10-106, 3D10-130.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied May 4, 2011.
    See also, 23 So.3d 1209.
    Carlton Fields, and Marsha G. Mador-sky, Miami; Carlton Fields, and Sylvia H. Walbolt and Stephanie C. Zimmerman, St. Petersburg, for appellant.
    Austin Carr, Coral Gables, for appellee.

      Before GERSTEN, WELLS and SALTER, JJ.
   SALTER, J.

This is an appeal by a law firm, Carlton Fields, from two orders subordinating its judgment for attorney’s fees and costs payable by its client to a. later-entered judgment for damages against that client in a separate case. Finding that there is no basis to apply the equitable subordination doctrine, we reverse the orders.

Edward S. LoCascio (Father) was accused, and later convicted, of murdering his wife in 2001. The couple had a son, appellee Edward J. LoCascio (Son). Beginning in 2002, Carlton Fields represented the Father in the probate proceedings regarding his late wife’s estate. Starting in 2003, it also represented the Father in Slayer Statute and wrongful death actions brought against him by the Son. In late 2001, the probate court froze assets jointly owned by the Father and his late wife.

The Father was convicted in February 2007 of arranging the murder of his wife by his brother. The firm sued the Father in April 2007 to recover its unpaid fees and costs. In May 2007, the Father agreed to a consent judgment which was in turn entered by the circuit court. The final judgment ($808,212.92) was recorded in Miami-Dade and Palm Beach Counties, and a judgment lien certificate was issued later that same month. Although the Son has asserted that the amount of unpaid attorney’s fees and costs embodied in the Carlton Fields final judgment is “eollu-sive,” he provided no evidence that the law firm’s attorneys did not provide the applicable legal services, actually expend the hours billed (at reasonable hourly rates), or incur the costs charged. There is no evidence in the record to suggest that in filing its collection suit, and in obtaining and perfecting a judgment lien, Carlton Fields.had any intention to harm the Son, benefit the Father, or accomplish .anything other than the collection of actually-incurred fees and costs for legal services.

Eighteen months later, in November 2008, the Son obtained a compensatory and punitive damages judgment (for over $75 million) against the Father in the wrongful death action. In November 2009, the Son moved to subordinate the Carlton Fields fee judgment to his own judgment in the wrongful death action, so that he could levy against his Father’s assets first, before the law firm. The trial court granted the motion and subordinated the law firm’s fee judgment. This appeal followed.

Analysis

Equitable subordination is an “extraordinary remedy” typically sought in a bankruptcy proceeding to address “gross misconduct” or actions by a creditor that are “egregious and severely unfair, to other creditors.” Toy King Dist. v. Liberty Sav. Bank, 256 B.R. 1 (M.D.Fla.2000). The elements of equitable subordination are:

(1) “The claimant must have engaged in some type of inequitable conduct.” (2) “The misconduct must have resulted in injury to the creditors of the .bankrupt or conferred an unfair advantage on the claimant.” (3) “Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code.”

Id. 256 B.R. at 195 (quoting Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 699-705 (5th Cir.1977)). In Pepper v. Litton, 808 U.S. 295, 311, 60 S.Ct. 238, 84 L.Ed. 281 (1939), the Supreme Court of the United States observed that the common thread in such cases is “the violation of rules of fair play and good conscience by the claimant ... in disregard of the standards of common decency and honesty.” There is simply no evidence of any of these elements in this case.

The Father was entitled to retain legal counsel. Carlton Fields was entitled to agree to represent him. Any firm representing the Father would have been entitled to charge for its services. The firm took reasonable steps to legally protect and collect its claim for fees due. There is nothing inherently fraudulent or inequitable about these activities; they are not a “violation of the rules of fair play and good conscience.” Id.

The Son’s argument that Carlton Fields’ judgment against his Father is a collusive agreement, a “misuse of court process,” or a “sham,” is not persuasive. The Son did not present any evidence to demonstrate that the Carlton Fields judgment represented anything other than a bona fide effort to collect upon a duly-incurred debt for services rendered. Similarly, allegations that Carlton Fields’ collection lawsuit and judgment against the Father were “unbeknownst” to the Son and his counsel in the -wrongful death case (and in the probate case regarding his late mother’s estate) are unsupported by any legal authority imposing a duty upon Carlton Fields to give such notice to the Son. Nor can the consent judgment be considered a “fraud on the court,” as the Son has called it. If anything, it promoted judicial economy by avoiding senseless litigation regarding an undisputed debt.

Finally, the Son argues that a reversal of the subordination orders (restoring the priority of the Carlton Fields judgment against the Father’s remaining assets) would result in a “perversion of Florida law” by making the Son pay Carlton Fields’ fees and costs incurred in representing the very man who murdered his Mother. But the Father was not and could not be prohibited from hiring and agreeing to pay an attorney to represent him. It follows that neither he nor his attorneys did anything inequitable in recording the amount owed Carlton Fields in a final judgment and lien.

The orders subordinating judgment are therefore reversed.

      . § 732.802, Fla. Stat. (2001). The Slayer Statute claims were addressed here in a prior appeal, LoCascio v. Sharpe, 23 So.3d 1209 (Fla. 3d DCA 2009).

      . The Son does not question the hours billed, the hourly rate, the costs charged, or the total billings. These topics could have been, but were not, questioned at the hearing on the motion to subordinate the Carlton Fields judgment. At oral argument, counsel for the Son acknowledged that the issue is the priority of the Carlton Fields judgment, not the amount.