author: POLEN, J. POLEN, J.

text:
    Tyrone FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-972.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Opinion on Denial of Rehearing Nov. 23, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   En Banc

POLEN, J.

Appellant Tyrone Fleming appeals his judgment and sentence that the trial court ordered pursuant to two charges against him, including a possession of cocaine charge, and raises the issue of the denial of his motion for judgment of acquittal on the cocaine charge. In an earlier decision, Marrisette v. State, we held that “[wjithout some testimony ... as to why the cocaine was unavailable at trial, the court should have granted Marrisette a judgment of acquittal on the cocaine possession charge.” 780 So.2d 1020, 1021 (Fla. 4th DCA 2001). By en banc decision, we now recede from Marrisette and affirm the denial of Fleming’s motion for judgment of acquittal.

On the date of Fleming’s arrest, Deputy Braga and Deputy Lindquist, Braga’s zone partner, were patrolling when they encountered a man or individual standing in front of an abandoned building. The man or individual, later identified as Fleming, saw Braga’s and Lindquist’s patrol vehicles and started walking fast around the building. When Braga made contact with Fleming, Fleming threw a crack cocaine pipe that was in his hand. Braga recovered the pipe at which time it was still “hot to the touch,” meaning it was recently used.

After detaining Fleming, Braga performed a field test on the pipe to check for the presence of narcotics. For this type of test, the officer uses a clean cotton swab in the pipe and then puts the specimen in a vial that contains a liquid. If there are traces of a drug on the cotton swab, the sample turns blue. Here, the test indicated the presence of cocaine in the pipe. The pipe was then placed into evidence. No other cocaine or residue was found on Fleming.

Julie Bacigalupi, a forensic chemist for the Broward Sheriffs Office, was called by the State as an expert who has performed approximately 340 chemical analyses during her employment with the Broward Sheriffs Office. Bacigalupi was shown the pipe that was entered into evidence and testified that she performed two tests — a crystalline test using a microscope and an alcohol test using a gas machine — to graph the components of the substance. During these tests, Bacigalupi found the presence of cocaine in the pipe. Bacigalupi was unable to weigh the cocaine because residue was “too small of an amount to actually be weighed.” When asked to produce the cocaine for this possession case, Baci-galupi testified that she can only share her data, that the vial and slide she tested are back in the lab, and that there was most likely still cocaine present in the pipe. Ba-cigalupi reached this conclusion based on the strong sample that was present during testing.

At the close of trial, the defense moved for judgment of acquittal on the cocaine charge because it was very clear there was no cocaine in this case. The trial court denied the motion for judgment of acquittal after citing case law from this court, stating that the- court should not grant a motion for judgment of acquittal unless the evidence, when viewed in the light most favorable to the State, fails to establish a prima facie case of guilt. The trial court determined that the State provided the jury with enough evidence to infer that Fleming was either guilty or not guilty of the offense. Therefore, the trial court denied the motion. The defense then renewed the motion and that motion was also denied by the court. This appeal followed.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.

Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (internal citations omitted).

Fleming argues that the trial court should have granted his motion for judgment of acquittal because no cocaine was admitted into evidence at trial. Fleming and the State relied on Marrisette and Peterson v. State, 841 So.2d 661, 662 (Fla. 4th DCA 2003), both out of this court, to support their opposing positions.

In Marrisette, appellant was charged with possession of cocaine and possession of paraphernalia. 780 So.2d at 1021. After the court denied Marrisette’s motion for judgment of acquittal, Marrisette argued that the trial court erred because no cocaine was introduced into evidence and no testimony showed that the cocaine was unavailable or “unavoidably destroyed during testing.” Id. at 1021. The State responded that no actual cocaine, just residue, was found, but Marrisette maintained that no testimony was given in regards to what happened to the residue. Id. The court agreed with Marrisette and held that “[wjithout some testimony ... as to why the cocaine was unavailable at trial, the court should have granted Marrisette a judgment of acquittal on the cocaine possession charge.” Id.

In Peterson, appellant was convicted for cocaine possession. 841 So.2d at 662. Peterson moved for judgment of acquittal and the motion was denied. Id. This court affirmed the trial court’s denial of Peterson’s motion for judgment of acquittal. Id. Peterson is distinguished from Marrisette because Peterson’s cocaine pipe, which contained the residue and exhibited a blue color from positive testing, was admitted into evidence. Id. This court stated that “[w]hen the state charges a defendant with possession of a controlled substance, the state must introduce the substance into evidence unless excused by its destruction during testing.” Id. (citing G.E.G. v. State, 417 So.2d 975, 977 n. 2 (Fla.1982)); see also Trinidad v. State, 615 So.2d 806 (Fla. 3d DCA 1993) (explaining that controlled substances must be admitted into evidence, if available).

In Peterson, this court further explained that “[i]n Marrisette ... [w]e held that where the testimony failed to account for what happened to the residue in the pipe and why it was unavailable at trial, the court erred in denying a motion for judgment of acquittal.” Id. However, in receding from Marrisette, we now hold that sufficient evidence exists for conviction on a possession of cocaine charge if a chemist or expert who is called by the State testifies that he or she tested the substance on the pipe and the test yielded positive results for cocaine. This testimony is sufficient unless the jury disbelieves the testimony.

In the instant case, the pipe was admitted into evidence and testimony of the expert, Bacigalupi, further explained that the strong sample gave rise to the theory that cocaine still existed in the pipe. She also testified that her samples were residual, thus could not be weighed or handled, and the tests were still in the lab. Under our new standard, Bacigalupi’s testimony that she found cocaine in the pipe and that the amount of residue was too small to be weighed but was present is now sufficient to deny a motion for judgment of acquittal.

Likewise, if circumstances so indicated and the expert called by the State testifies that residue existed at the time of the tests and that the tests he or she performed were destroyed, the testimony would be more than sufficient. Nonetheless, Bacigalupi’s testimony that she performed tests which rendered positive results for cocaine was enough to support a possession of cocaine charge.

Accordingly, based on this en banc decision to recede from Marrisette, Bacigalu-pi’s testimony and explanation as to the unavailability of the evidence is now sufficient for a possession of cocaine charge. Therefore, we affirm the trial court’s denial of Fleming’s motion for judgment of acquittal.

Affirmed.

MAY, C.J., WARNER, STEVENSON, GROSS, TAYLOR, HAZOURI, DAMOORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ., concur.

On Motion FOR Rehearing En Banc

POLEN, J.

Having previously en banced this case, in order to recede from our prior opinion in Marrisette v. State, 780 So.2d 1020 (Fla. 4th DCA 2001), we now consider en banc Fleming’s issue as to the application of Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (2011). Considering the matter en banc, we deny rehearing for the reasons set forth below.

In his motion for rehearing en banc, Fleming raised for the first time that the statute under which he was convicted, section 893.13, Florida Statutes, is facially unconstitutional based on the analysis set forth in Shelton. In Shelton, the district judge found section 893.13 to be unconstitutional because it removed the element of mens rea from drug possession laws, creating a strict liability offense. Id. at 1296-98. The Shelton court held that in order for such an offense to be constitutional, the defendant cannot be subjected to harsh penalties, substantial social stigma, or regulation of inherently innocent conduct, and that section 893.13 does all three. Id. at 1300-06.

This court is aware that Shelton issues are now being raised by defendants at various stages of the appellate process. If the Shelton issue is raised before a decision on the merits, even if it was not raised at the trial court level, this court will consider the issue. However, if the Shelton issue is not raised prior to a decision on the merits, this court will not consider the issue on a motion for rehearing or motion for rehearing en banc. Here, this court issued an opinion as to the merits of Fleming’s case in Fleming v. State, No. 4D10-972, 2011 WL 3477056 (Fla. 4th DCA Aug.10, 2011). Subsequently, Fleming filed a motion for rehearing en banc, raising for the first time an issue as to the constitutionality of section 893.13, Florida Statutes, under the analysis set forth in Shelton. Because the issue was not raised prior to a decision on the merits, this court will not take it into consideration. As such, we deny Fleming’s motion for rehearing en banc.

Rehearing Denied.

MAY, C.J., WARNER, STEVENSON, GROSS, TAYLOR, HAZOURI, DAMOORGIAN, CIKLIN, GERBER, LEVINE and CONNER, JJ., concur.


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    Glenn A. LARSEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2983.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Glenn A. Larsen timely appeals a final judgment and sentence adjudicating him guilty of aggravated battery with a deadly weapon. Larsen claims the trial court abused its discretion when it denied his request for a jury instruction on the justifiable use of non-deadly force. Finding no abuse of discretion, we affirm.

Larsen was charged by information with aggravated battery with a deadly weapon on Thomas O’Hagen. On the day of the incident, O’Hagen met a friend at a bar. While O’Hagen and his friend shot pool, Larsen, along with Stephan LaPlante and Nikolas Lee, who were roommates of Larsen, arrived at the bar. At some point, LaPlante noticed his van keys were missing as well as his van. O’Hagen then gave LaPlante a ride back home. A half hour later, Larsen and Lee arrived at the house in LaPlante’s van.

According to O’Hagen, the other three men got into an altercation over the van, and he tried to break it up. As the altercation continued, O’Hagen went out to sit on the porch. Larsen then walked out of the house and stood in the middle of the street. Larsen said something that O’Ha-gen could not understand, then walked back onto the porch and stabbed O’Hagen with a knife. O’Hagen denied that he argued with Larsen, grabbed him by the throat, slapped him, hit him in the head, pushed him down, or prevented him from moving.

According to Larsen, after walking home from the bar, Lee stated that there were errands that LaPlante wanted them both to run, and Lee decided to use La-Plante’s van. When Lee and Larsen returned to the house, LaPlante and O’Ha-gen came out and began screaming at them about the van. Larsen got the sense that Lee did not have permission to take the van. Larsen tried to go inside, but O’Hagen would not let him. LaPlante and Lee went inside, but O’Hagen grabbed Larsen and backed him away from the door into one of the chairs on the porch. O’Hagen was angry about the van and wanted to know where they had taken it. He also accused Larsen of taking a pack of cigarettes from him at the bar. Larsen tried to explain that he did not know that Lee took the van without permission and that he did not take the cigarettes. O’Ha-gen continued to yell at him as he kept him seated in the chair. O’Hagen also threatened him with his fists. O’Hagen used his left hand to grab Larsen and hold him in the chair while he smacked Larsen with the open palm of his right hand. O’Hagen then backed away and told Larsen to stay in the chair. About five minutes later, O’Hagen came out of the house, went straight toward Larsen and started smacking him again. After being hit three or four times, Larsen reached into his pocket, pulled out his knife, and opened the blade. At this point, O’Hagen stopped hitting him and leaned back off of Larsen. Larsen had the knife down by his thigh; he and O’Hagen looked at each other, and O’Hagen made another move toward him; at this point, Larsen stood up and stabbed O’Hagen in the neck. Larsen explained that he was trying to defend himself because he feared O’Hagan was going to continue to hit him, O’Hagen was a lot bigger and meaner than he was, and O’Ha-gen had hit him earlier in the week.

Dr. Ralph Guarneri, an on-call trauma surgeon at Broward General Hospital, testified that O’Hagen had a penetrating stab wound to his right neck. Guarneri further testified that the injury was life-threatening and that O’Hagen would have died without treatment.

At trial, Larsen requested the trial court instruct the jury on the justifiable use of both deadly and non-deadly force. The trial court determined that while a knife is not always a deadly weapon, based on the facts of this case, the knife was a deadly weapon as a matter of law. Therefore, the trial court declined to give the justifiable use of non-deadly force instruction.

Larsen argues that the trial court erred in finding that the knife was a deadly weapon as a matter of law because whether a weapon is deadly is a question of fact to be determined by the jury based on the facts and circumstances of each individual case. The State submits that the trial court did not err when it only force instruction because Larsen’s intentional stabbing of O’Hagen’s neck with a knife can be deemed only deadly force, and not nondeadly force.

This court reviews a trial court’s withholding of a requested jury instruction under an abuse of discretion standard. Williams v. State, 34 So.3d 768, 770 (Fla. 2d DCA 2010) (citing Broum v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009)). “ ‘Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense....’” Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998) (quoting Bryant v. State, 412 So.2d 347, 350 (Fla.1982)). “A defendant is entitled to an instruction on his theory of defense however flimsy the evidence is which supports that theory, or however weak or improbable his testimony may have been.” Id. (internal citations and quotations omitted).

“Under Florida law, a person is justified in using deadly force in self-defense only when the person reasonably believes that such force is necessary to prevent one’s imminent death or great bodily harm or to prevent the imminent commission of a forcible felony.” Cruz v. State, 971 So.2d 178, 182 (Fla. 5th DCA 2007). In contrast, “[n]on-deadly force may be used when and to the extent that a person reasonably believes that the use of force is necessary to defend one’s self or another against the imminent use of unlawful force.” Id.

When determining whether the force used is deadly or non-deadly, “[t]he proper focus is on the nature of the force used by the defendant and not the end result.” Id. “If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given.” Id. (citing DeLuge v. State, 710 So.2d 83, 84 (Fla. 5th DCA 1998)). “Where the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force.” Id.

A knife can be used with deadly or without deadly force. In Waldo v. State, 728 So.2d 280 (Fla. 3d DCA 1999), quashed in part on other grounds, 759 So.2d 674 (Fla.2000), the state presented evidence showing that the defendant was caught attempting to steal from an automobile owned by Johnson. Upon observing the defendant’s attempt, Johnson’s friend got in a scuffle with the defendant. The defendant thrust a knife into the friend’s chest in the course of this scuffle. The trial court refused the defendant’s request to instruct the jury on the defense of justifiable use of non-deadly force. While the Third District stated that it was not holding that the use of a knife is, by definition, a deadly weapon, it held that the act of thrusting a knife into someone’s chest cavity, home of many vital organs, is likely to cause death or great bodily harm. Id. at 281. In contrast, in DeLuge v. State, 710 So.2d 83 (Fla. 5th DCA 1998), there was evidence that the defendant made a single slashing motion with a razor blade towards the victim’s hand after the victim had attempted to stab him with a knife, and then the defendant wrestled with her in an attempt to get her to drop the knife. Id. at 84. The Fifth District held that this use of force, if believed by a jury, did not amount to the use of deadly force as a matter of law because death was not the natural, probable and foreseeable consequences of the defendant’s act of swinging the razor blade aimed for the victim’s hand. Id. at 84-85. Accordingly, the court held that the defendant was entitled to an instruction on the use of non-deadly force. Id. at 85.

Although Florida courts have clearly and consistently emphasized that the determination of whether a weapon is deadly is a question to be decided by a jury, this general rule is applicable only where the evidence of a particular case does not establish that the weapon used was deadly as a matter of law. Our courts have held a knife to be a deadly weapon as a matter of law when viewed in context of how it was used and where it struck the victim. Here, Larsen struck the victim in the neck area with the knife. The Waldo court based its holding on the fact that the victim was struck in the chest cavity, home of many vital organs. The court held that a stab wound to this area is likely to cause death or great bodily harm, and that there was simply no way to interpret such an act as being non-deadly. Similarly, here, Dr. Guarneri testified that important structures located in the neck include the esophagus, the hypotherynx, the trachea, the larynx, and the blood supply to the brain. Further, Dr. Guarneri testified that without medical attention, the victim would have bled to death as his injuries were life threatening. Thus, the trial court properly determined that the nature of the weapon, a sharp knife, when viewed in the context of where it was used to strike the victim, the neck, home of many vital body structures, constituted deadly force as a matter of law. Therefore, the trial court did not abuse its discretion in refusing to give a jury instruction on the justifiable use of non-deadly force.

Affirmed.

WARNER and POLEN, JJ., concur.


author: PER CURIAM.

text:
    Daniel K. ROSS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1841.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Daniel K. Ross, Raiford, pro se.
    No appearance required for respondent.
   PER CURIAM.

We dismiss this petition for writ of habe-as corpus seeking to raise trial court errors which allegedly occurred during petitioner’s jury trial in 1996. See Fla. R.Crim. P. 3.850(h) (2010) (a petition for writ of habeas corpus may not be used as a substitute for a rule 8.850 motion).

We agree that State v. Montgomery, 89 So.3d 252, 258-60 (Fla.2010), does not apply retroactively to convictions which were final before our supreme court issued that decision. Harricharan v. State, 59 So.3d 1162 (Fla. 5th DCA 2011), petition for discretionary review pending, SC11-846. See also Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009), petition for discretionary review pending, SC10-127.

Dismissed.

DAMOORGIAN, CIKLIN and GERBER, JJ., concur.


text:
    Albert ESTRADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4039.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant
    Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Dowe v. State, 39 So.3d 407, 411 (Fla. 4th DCA 2010) (“[W]e find that the trial court’s use of the erroneous manslaughter instruction was not fundamental error because the instruction gave the jury two options on the crime’s second element: either that the defendant ‘intentionally caused the death’ of the victim, or that the death of the victim ‘was caused by the culpable negligence’ of the defendant.”); Singh v. State, 36 So.3d 848, 849-51 (Fla. 4th DCA 2010) (same).

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Catherine Paige PARKER, et. al., Appellants, v. LASALLE BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of the Structured Asset Securities Corporation, Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates M Series 2003-BC8, Appellee.
    No. 4D10-182.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Matthew D. Vales of Kaufman, Englett & Lynd, LLC, Orlando, for appellant.
    Katherine J. Pauls Walke of Van Ness Law Firm, P.A., Deerfield Beach, for ap-pellee.
   CONNER, J.

Appellee LaSalle Bank (“LaSalle”) filed a complaint to foreclose on a note and mortgage on February 12, 2009. LaSalle unsuccessfully attempted to personally serve Parker. LaSalle then filed an affidavit of constructive service with an affidavit of diligent search and inquiry from Scott Harris, a process server, showing that personal service could not be made despite a diligent search and inquiry to determine the whereabouts of Parker. LaSalle constructively served Parker by publishing notice of action in the newspaper two weeks in a row, on May 27, 2009, and June 3, 2009.

A default and final judgment of foreclosure was entered in LaSalle’s favor, and a public sale was scheduled for December 1, 2009. On December 22, 2009, Parker filed an emergency motion to quash service of process. After an evidentiary hearing, the trial court denied the emergency motion to quash, stating that service was proper. We determine that LaSalle did not conduct a sufficient diligent search and inquiry to support constructive service of process and reverse the trial court’s decision.

Parker argues that LaSalle’s affidavit of constructive service is insufficient to demonstrate due diligence because the affidavit of diligent search and inquiry was insufficient to demonstrate reasonable and conscientious efforts to actually locate Parker. LaSalle primarily relies on Reina v. Barnett Bank, 766 So.2d 290 (Fla. 4th DCA 2000) to support its arguments. In Reina, the bank attempted to serve Reina with a complaint to foreclose a mortgage. The property was vacant when the bank attempted service. An affidavit was filed to show that diligent search for Reina occurred. The affidavit stated service by the sheriff was attempted, and a return of no service was received. The affidavit provided that the bank attempted to locate Reina through the post office, mortgage service records, telephone directories, and speaking to former neighbors. Notice was then published in the newspaper two weeks in a row. A default and summary-judgment were entered when Reina failed to file an answer. Ten months later, Rei-na served a motion to quash service of process and to vacate the judgment. Id. at 291. Reina argued that the bank knew at all times of his whereabouts because of his checking account. The court determined that the bank’s “constructive service was not so defective that it amounted to no notice at all.” Even though the bank did not exhaust all options to inquire about Reina’s whereabouts, at most the judgment was voidable. Id. at 292. Since Reina had waited several months to file his motion to vacate, the court held the trial court did not abuse its discretion in denying the motion to vacate.

This case is more akin to Demars v. Village of Sandalwood Lakes Homeowners Association, 625 So.2d 1219 (Fla. 4th DCA 1993). In that case, a homeowners association filed suit to foreclose on a lien for unpaid assessments and obtained judgment. The association attempted personal service twice at the homeowner’s residence. A tenant at the residence did not know how to contact the homeowner. To establish a diligent search for constructive service, the association’s attorney called a mortgage holder and the power company. Neither would divulge information over the phone, and the association’s attorney did not follow up with a letter. The court held the association’s search did not meet the standards of reasonable diligence because the attorney for the association did not follow up on any of his inquiries. Therefore, the constructive service was defective, rendering the judgment of foreclosure voidable.

In this case, the record reflects only one return of service. According to the affidavit of diligent search and inquiry, Harris next searched credit information, directory assistance, motor vehicle records, the post office, property tax records, national death records, and prison records to try and locate Parker. However, the affidavit shows the search for Parker was less than diligent. Regarding efforts to locate Parker at her last known address (the subject property) is a statement that “Process Server stated: Tenant occupied.” No indication exists as to when the process server went to the premises or how he determined it was “tenant occupied.” Further, no indication exists that the process server inquired of the tenant the whereabouts of Parker. Under the section of the affidavit titled “Inquiry of Neighbors at Last Known Address,” it merely states: “Unable to contact neighbors,” with no statement as to who made attempt, or on what dates or any description of any attempt made. Under the section “Freedom of Information Act Inquiry Made to U.S. Postal Service,” it says “Requested change of address or boxholder information [at property address] on 2/19/09. Upon receipt of their response, will promptly revert,” with no follow-up of any information received from the post office.

“[P]roof of a few attempts at service of process are insufficient to prove diligent search.” Demars, 625 So.2d at 1221. In this case, personal service was attempted only once. As in Demars, the affidavit of diligent search filed in this case displays a pattern of failure to follow up on inquiries and leads that could have revealed Parker’s location. Therefore, we find LaSalle’s search did not meet the standards of reasonable diligence. Further, this case is distinguishable from Rei-na in that Parker was diligent in pursuing the motion to quash. Parker’s trial counsel filed a special limited appearance to attack the service of process fourteen days after entry of final judgment and filed an emergency motion to quash six days later. Therefore, we reverse, finding the final judgment entered in this case voidable, and remand for further proceedings.

Reversed and remanded.

WARNER and POLEN, JJ., concur.


author: WOLF, J.

text:
    Megaleto ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0525.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his two convictions for failure to report a temporary residence in violation of Florida’s sexual offender registration statute and his subsequent enhanced sentence as a habitual violent felony offender (HVFO) to twenty years’ incarceration. Appellant raises four issues on appeal. Specifically, appellant asserts (I) the trial court erred in denying his motion for judgment of acquittal; (II) the trial court erred in admitting certain testimony as relevant; (III) his convictions for two failures to properly report as a sexual offender constituted a double jeopardy violation; and (IV) his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and article I, section 17 of the Florida Constitution. We affirm as to all issues.

Appellant is a registered sex offender. As such, appellant is required to register any residences with the local sheriffs office on his birthday and every third month thereafter. See § 943.0435(14)(a)-(c), Fla. Stat. (2007). Appellant was arrested and charged with two counts of failure to report a temporary residence, in violation of section 943.0435(14), Florida Statutes (2007). The alleged temporary residence was an apartment leased by appellant’s pregnant girlfriend. The State alleged appellant failed to report this temporary address on July 25, 2008, and again on October 28, 2008. Before trial, the State filed its Notice of Intent to Classify Defendant as a HVFO pursuant to section 775.084, Florida Statutes (2007).

At trial, numerous witnesses testified that around the relevant dates, they regularly saw appellant at his girlfriend’s apartment complex. Two witnesses testified appellant told them directly that he lived in the apartment complex. Witnesses also testified that appellant interacted with them, engaged them in small talk and Invited them to various social engagements at “his apartment.” Also, witnesses testified they regularly saw appellant’s truck in the apartment complex parking lot, both during the day and late at night, and saw appellant coming and going from one of the apartments.

Appellant testified prior to his arrest, he was living with his mother at the address he provided on his sexual offender registration forms. He testified that he visited the apartment complex regularly to help take care of his pregnant girlfriend, but did not live there and never spent the night. He testified that he would often leave his truck in the apartment complex parking lot and take his girlfriend’s car to work and to run errands because her car got better gas mileage than his truck. He testified when his job required him to go out of state, he would leave his truck in the apartment complex parking lot.

After both the close of the State’s case and his own testimony, appellant moved for a judgment of acquittal. The trial court denied the motion. The jury found appellant guilty on both counts as charged. Appellant was sentenced as a HVFO to two, ten-year consecutive terms, for a total of twenty years’ incarceration.

First, appellant asserts the trial court erred in denying his motion for judgment of acquittal. Specifically, appellant contends the State’s evidence was insufficient to exclude his reasonable hypothesis of innocence, that he visited the apartment complex often to see his pregnant girlfriend but did not reside there.

A trial court’s denial of a motion for judgment of acquittal is reviewed de novo. Reynolds v. State, 934 So.2d 1128, 1145 (Fla.2006). When a case is based entirely on circumstantial evidence, a special standard of review applies which requires that the circumstantial evidence be inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). “The state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Darling v. State, 808 So.2d 145, 156 (Fla.2002) (citation omitted).

Despite appellant’s contention to the contrary, this was not a case based solely on circumstantial evidence. There was direct evidence that appellant lived at the apartment complex, namely, the testimony by witnesses who lived at the apartment complex that appellant told them directly that he lived there. See Sylvis v. State, 916 So.2d 915, 918 (Fla. 5th DCA 2005) (stating that a defendant’s admission is direct evidence). This direct evidence was buttressed by circumstantial evidence that appellant and his truck were seen regularly around the apartment complex by numerous apartment residents. Thus, we find the trial court did not err in denying appellant’s motion for judgment of acquittal.

Second, appellant asserts the trial court admitted the irrelevant testimony of three witnesses contrary to section 90.401, Florida Statutes (2008). We find the testimony of two of these witnesses to be clearly relevant and, as such, we will not address their testimony. However, the testimony of the third witness, Amanda Emerson, requires further discussion. When Emerson was asked whether appellant had ever come to her apartment, the following discussion transpired:

A. Yes. Yes, he came to my door. Knocked on my door and I opened it and he asked me how I was doing and asked me if the guy that helped me — if one of the guys that helped me move in was my boyfriend and I said, yes.
Q. Was it?
A. No.
Q. Okay.
A. And he told me how beautiful I was and if I ever wanted to go out one time
[DEFENSE]: Objection.
A. — and I just let him know—
[DEFENSE]: — Your Honor, relevancy.
THE COURT: I’ll overrule it, but you need to reign [sic] it in.
Q. So he just asked you out? Was that the extent of the conversation?
A. Yeah, pretty much. He just asked me out. I kind of cut it short and that was it.

(Emphasis added). Appellant contends that references to his attempt to ask Emerson out were irrelevant. We disagree because the evidence tended to show that appellant lived at the apartment complex. Specifically, the fact that appellant had the ability to find out where Emerson lived and had an opinion on her physical beauty made it more likely that appellant lived at the apartment complex because access to the complex was secured and resident keys were necessary for entry.

Furthermore, even if admitting the above portion of Emerson’s testimony was error, any error was undoubtedly harmless. The standard for harmless error analysis was set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986):

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. Application of the test requires ... examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.
The test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1138-39 (citations omitted) (emphasis added). Any alleged error here was harmless for several reasons. First, there was testimony by two witnesses that appellant told them that he lived at the apartment complex. Second, given the nature of the charges against appellant, the jury was already aware that he was a convicted sex offender. Third, this statement was extremely brief. See generally Eaglin v. State, 19 So.3d 935, 947 (Fla.2009) (stating that a brief statement about defendant’s lack of remorse constituted harmless error). Fourth, appellant did not object to a similar statement by another witness, Marcella Watson, and thus the jury was previously informed of appellant’s attempts to ask out a female resident. As such, Emerson’s testimony was cumulative. See State v. Schopp, 653 So.2d 1016, 1019 (Fla.1995) (approving cumulative evidence as a factor weighing in favor of harmless error). Therefore, even if it were error to admit the above portion of Emerson’s testimony, we find there was not a reasonable possibility that it affected the verdict.

Third, appellant asserts that his convictions for two failures to report a temporary residence constituted a double jeopardy violation. In light of our recent decision in Bostic v. State, 60 So.3d 535 (Fla. 1st DCA 2011), we find this assertion to be without merit.

Last, appellant asserts that his sentence of two consecutive ten-year terms for failure to report a temporary residence constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and article I, section 17 of the Florida Constitution. “[M]ixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Hilton v. State, 961 So.2d 284, 293 (Fla.2007) (citation omitted). However, when considering Eighth Amendment issues, appellate courts must yield “substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishment for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

“The Eighth Amendment to the United States Constitution ... [has] historically provided protection relative to the mode and method of punishment, not the length of incarceration.” Hall v. State, 823 So.2d 757, 760 (Fla.2002); see also Harmelin v. Michigan, 501 U.S. 957, 979, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Florida courts have been reluctant to declare a prison sentence unconstitutional because of its length. Adaway, 902 So.2d at 748. The Florida Supreme Court has held that in order for a prison sentence to constitute cruel and unusual punishment solely because of its length, the sentence must be grossly disproportionate to the crime. Adaway, 902 So.2d at 750.

A cruel and unusual punishment analysis consists of an examination of three objective factors. Solem, 463 U.S. at 292, 103 S.Ct. 3001. First, a court must consider the “gravity of the offense and the harshness of the penalty.” Id. Second, a court may examine “the sentences imposed on other criminals in the same jurisdiction.” Id. Third, a court may examine “the sentences imposed for commission of the same crime in other jurisdictions.” Id. For the following reasons, we find that appellant’s sentence was not cruel and unusual.

1. Gravity of the Offense/Harshness of the Penalty

a. The Triggering Offense

With the factors of Solem in mind, we begin our assessment of the gravity of appellant’s crime, failure to report a temporary residence in violation of section 943.0435(14). The express legislative intent of Florida’s sexual offender reporting requirements is set forth in chapter 2000-207, section 2, Laws of Florida, which provides:

Legislative findings. — The Legislature finds that sexual offenders ... often pose a high risk of engaging in sexual offenses, even after being released from incarceration or commitment,' and that protection of the public from sexual offenders is a paramount government interest- Releasing information concerning sexual offenders to law enforcement agencies and to persons who request such information, and the release of such information to the public by a law enforcement agency or public agency, will further the governmental interests of public safety. The designation of a person as a sexual offender is not a sentence or a punishment, but is simply the status of the offender which is the result of a conviction for having committed certain crimes.

(Emphasis added). Although appellant’s triggering offense was failing to report a temporary address (which is a non-violent crime), the legislative intent indicates that this reporting requirement is not a mere technicality. Rather, Florida has a real and legitimate interest in knowing where a sexual offender is residing, even if the residence is only temporary, because of the real risk that sexual offenders pose to the public and the need for law enforcement officials to monitor them. The temporary reporting requirement is important because it prevents sexual offenders from circumventing the statute by providing law enforcement with one address while they actually reside at another. Cf. State v. Wardell, 329 Mont. 9, 122 P.3d 443 (2005) (stating that sexual offense crimes are of the type that require the State to know the location of the offender even after the offender is released from jail). Thus, due to the risk that sexual offenders pose to the public even after released from prison, appellant’s failure to properly register was a non-trivial offense.

b. HVFO Status/Underlying Offenses

Appellant is also a HVFO, and as such the Legislature may punish appellant more severely than it punishes a first time offender. See § 775.084, Fla. Stat. (2008); see also Ewing v. California, 538 U.S. 11, 24-26, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). The express legislative intent of Florida’s HVFO statute is set forth in section 775.0841, Florida Statutes (2008), which provides:

The Legislature finds a substantial and disproportionate number of serious crimes are committed in Florida by a relatively small number of repeat and violent felony offenders, commonly known as career criminals. The Legislature further finds that priority should be given to the investigation, apprehension, and prosecution of career criminals in the use of law enforcement resources and to the incarceration of career criminals in the use of available prison space. The Legislature intends to initiate and support increased efforts by state and local law enforcement agencies and state attorneys’ offices to investigate, apprehend, and prosecute career criminals and to incarcerate them for extended terms; and, in the case of violent career criminals, such extended terms must include substantial mandatory minimum terms of imprisonment.

(Emphasis added). In enacting the HVFO statute, the legislature recognized that those who commit serious crimes often repeat those crimes. By mandating increased penalties, the HVFO statute seeks both to protect the public from these violent offenders and presumably attempts to deter future offenders. Given appellant’s HVFO status, the gravity of his triggering crime of failure to report a temporary residence was increased, and thus his sentence was not grossly disproportionate. See Nelson v. State, 811 So.2d 761, 763 (Fla. 4th DCA 2002) (finding “10/20/Life” enhancement statute was not, on its face, cruel and unusual); see also Hale v. State, 630 So.2d 521, 526 (Fla.1993) (reiterating the principle that sentence length is a matter of legislative prerogative); Vucinich v. State, 776 So.2d 995, 996 (Fla. 5th DCA 2001) (finding a ten-year sentence for habitual felony offender driving did not constitute cruel and unusual punishment).

2. Intrajurisdictional Comparison

After a thorough search, we can find no Florida case law exactly on point. While there are numerous cases involving a defendant failing to comply with the sexual offender registration requirements, we can find no Florida case upholding or reversing a sentence of twenty years for failure to register a temporary address where the defendant is a HVFO. However, we have stated in dicta that Solem does not apply in cases involving prior violent felonies. See Bloodworth v. State, 504 So.2d 495, 498 (Fla. 1st DCA 1987).

Appellant relies on Solem, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637, for the proposition that his twenty-year sentence constituted cruel and unusual punishment. In Solem, the defendant was sentenced to life imprisonment without parole for writing a “no account” check for $100 under a South Dakota recidivism statute. Id. He had previously been convicted of six nonviolent felonies, including convictions for third-degree burglary, obtaining money under false pretenses, grand larceny, and a third-offense driving while intoxicated. Id. at 279-80, 103 S.Ct. 3001. The U.S. Supreme Court reversed, stating “[the defendant’s] crime was one of the most passive felonies a person could commit. It involved neither violence nor threat of violence to any person.” Id. at 296, 103 S.Ct. 3001 (citation omitted). Additionally, “[a]ll [of the defendant’s prior crimes] were nonviolent and none was a crime against a person.” Id. at 297,103 S.Ct. 3001.

Appellant contends that because his crime of not reporting his temporary residence was passive and nonviolent and his sentence was excessively long, Solem should apply. However, as noted above, in Bloodworth this court stated that the all-important factor that made the sentence cruel and unusual in Solem was that all of the defendant’s prior convictions were non-violent. 504 So.2d at 498. In the instant case, all of appellant’s prior convictions were violent crimes, including two counts of sexual battery, armed kidnapping, armed robbery, and armed burglary. In Long v. State, the Fifth District reiterated this distinction mentioned in Blood-worth, stating, “Solem applie[s] only to non-violent felonies.” 558 So.2d 1091, 1092 (Fla. 5th DCA 1990). Although the triggering crime in the instant case was nonviolent and did not involve harm to any particular individual, appellant does not point to any authority suggesting the particular facts of his case mandate a finding of cruel and unusual punishment, nor does appellant contend that his sentence fell outside of the statutory guidelines. Thus, Solem does not apply to the instant case.

3. Interjurisdictional Comparison

Other jurisdictions are split on whether long (i.e., twenty-year) sentences enhanced by habitual felony offender statutes for failure to comply with sexual offender registration requirements constitute cruel and unusual punishment. See People v. Nichols, 176 Cal.App.4th 428, 97 Cal.Rptr.3d 702, 706 (2009) (holding a sentence of twenty-five years to life in prison did not constitute cruel and unusual punishment where a defendant failed to register as a sexual offender when he moved out of town and was in violation of a “three strikes law”); State v. Wardell, 329 Mont. 9, 122 P.3d 443 (2005) (holding a sentence of twenty-five years with twenty years suspended did not constitute cruel and unusual punishment); Thompson v. State, No. 2-02-318-CR, 2003 WL 22923066 (Tex.App. Dec.11, 2003) (holding that a sentence of sixty years in prison did not constitute cruel and unusual punishment where defendant failed to register as a sexual offender and was a habitual felony offender); State v. Mueller, 53 So.3d 677 (La.Ct.App. 2010) (holding that a sentence of ten years in prison did not constitute excessive punishment in violation of Louisiana Constitution). But see People v. Carmony, 127 Cal.App.4th 1066, 26 Cal.Rptr.3d 365, 369 (2005) (holding a sentence of twenty-five years to life in prison constituted cruel and unusual punishment where a defendant failed to register as a sexual offender and was in violation of a “three strikes law”); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008) (holding that a mandatory sentence of life imprisonment constituted cruel and unusual punishment where a defendant failed to register as a sex offender for the second time and the offense that caused the reporting requirement was statutory rape). Thus, the practices of other jurisdictions provide little guidance on this issue.2

Taking all of the above analysis into account, appellant’s sentence did not constitute cruel and unusual punishment. As the U.S. Supreme Court recognized in Rummel v. Estelle, 445 U.S. 263, 284, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), where a defendant was convicted of multiple prior felonies, “[the State] was entitled to place upon [a defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.” The HVFO statute in Florida is “nothing more than a societal decision that when a person commits yet another felony, he should be subjected to [ ] serious penalty.” Id. at 278, 100 S.Ct. 1133. Further, “it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular offense; rather, in applying the Eighth Amendment, the appellate court decides only whether the sentence under review is within constitutional limits.” Solem, 463 U.S. at 290 n. 16, 103 S.Ct. 3001. Thus, we find that appellant’s consecutive ten-year sentences for failure to report a temporary residence do not constitute cruel and unusual punishment..

For the foregoing reasons, the trial court did not commit reversible error. Accordingly, the judgment of the trial court is AFFIRMED.

DAVIS and MARSTILLER, JJ., concur.

      . “Temporary residence” is defined as:
      Temporary residence means a place where the person abides, lodges, or resides for a period of 5 or more days in the aggregate during any calendar year and which is not the person’s permanent residence or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled a student for any period of time in this state.
      § 775.2l(2)(g), Fla. Stat. (2007). See also § 943.0435(l)(c), Fla. Stat.

      . Appellant failed to object at trial on undue prejudice grounds pursuant to section 90.403, Florida Statutes (2008). As a result, he waived any possible undue prejudice argument on appeal. See Mitchell v. State, 734 So.2d 450, 452 (Fla. 4th DCA 1999) (finding undue prejudice issue not preserved when defense counsel objected only on relevance grounds and not on undue prejudice grounds); see also Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (stating "in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”) (emphasis added).

      . The Florida Supreme Court has declined to address if the scope of the Eighth Amendment to the U.S. Constitution differs from that of article I, section 17 of the Florida Constitution. See Adaway v. State, 902 So.2d 746, 752 (Fla.2005). Thus, we treat the two as commensurate in scope.

      . To date, Solem is the first and only case in which the U.S. Supreme Court held a prison sentence violated the Eighth Amendment to the U.S. Constitution based solely on its length.


text:
    Jason Darrell WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1172.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Tallahassee, and Wesley Heidt, Daytona Beach, Assistant Attorneys General, for Appellee.
   PER CURIAM.

Jason Darrell West was adjudicated guilty of burglary and sentenced to thirty years in prison as an habitual felony offender. In addition, the trial court imposed a public defender’s fee in the amount of $2500 pursuant to section 938.29(5), Florida Statutes (2009). West filed an appeal from his judgment of conviction and sentence and while the appeal was pending, also filed two motions under Florida Rule of Criminal Procedure 3.800(b)(2), one of which challenged his habitual felony offender sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the other, the imposition of the public defender’s fee because the trial court did not advise him of his right to a hearing to contest the amount. The trial court’s denial of each motion has formed the basis for West’s present appeal. For reasons more fully set forth below, we affirm West’s habitual felony offender sentence but reverse the imposition of the public defender’s lien.

In West’s first point on appeal, he argues that section 775.084, Florida Statutes, under which his habitual felony offender sentence was imposed, is unconstitutional according to the ruling of the United States Supreme Court in Appren-di, because it authorizes the sentencing court, rather than the jury, to determine whether a defendant qualifies as a habitual felony offender and because it allows the determination to be based on a preponderance of the evidence, instead of proof beyond a reasonable doubt. In addition, West contends that “the so-called recidivist exception” violates the Sixth and Fourteenth Amendments to the United States Constitution. In his rule 3.800(b)(2) motion, however, West correctly conceded the Apprendi challenge has been repeatedly rejected by courts of this state, and the recidivist issue was rejected by the Supreme Court in Almendarez-Torres v. United States, 528 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Recently, in Thompson v. State, 23 So.3d 235 (Fla. 1st DCA 2009), we confirmed “this question has been settled.” Id. at 235 (citing Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001), and Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001)). We went on to hold:

While appellant suggests that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is of questionable authority, we find no basis to find a constitutional infirmity in the procedure utilized in the instant case. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (requiring a jury to find a fact used as a basis for exceeding the statutory maximum sentence except for the fact of a prior conviction).

Id. at 235-36. See also Gudinas v. State, 879 So.2d 616, 618 (Fla.2004) (holding that Apprendi affects neither the recidivist sentencing scheme under the Prisoner Releas-ee Reoffender Act nor sentencing as a habitual violent felony offender); St. Louis v. State, 985 So.2d 16, 18 (Fla. 4th DCA 2008) (affirming the defendant’s habitual offender sentence while reaffirming its pri- or holding that Apprendi “does not apply to recidivism statutes and entitle a defendant to have a jury determine, beyond a reasonable doubt, the existence of predicate convictions necessary for imposing a habitual felony offender sentence,” citing Gordon v. State, 787 So.2d 892, 894 (Fla. 4th DCA 2001)); Clayton v. State, 953 So.2d 758, 759 (Fla. 5th DCA) (same), rev. denied, 966 So.2d 965 (Fla.2007) (table); Grant v. State, 815 So.2d 667, 668 n. 3 (Fla. 2d DCA 2002) (joining its “sister courts in recognizing that Apprendi ... is not implicated when sentencing a convicted defendant as a habitual offender”); Saldo v. State, 789 So.2d 1150, 1151 (Fla. 3d DCA 2001) (“Apprendi makes clear that recidivism statutes, which enhance sentencing based on the ‘fact of prior convictions,’ do not require those facts to be submitted to the jury and are outside the scope of the ruling in Apprendi.”). Accordingly, West’s habitual felony offender sentence is affirmed.

However, there is merit to West’s second point claiming the trial court erred in imposing a public defender’s fee without advising him of the right to contest the amount of the fee. Section 938.29, Florida Statutes (2009), provides as follows:

(5) The court having jurisdiction of the defendant-recipient shall, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender ... and costs, at which time the defendant-recipient or parent, after adequate notice thereof, shall have the opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.

(Emphasis added.) See also Fla. R. Crim. P. 3.720(d)(1) (“[T]he court shall notify the accused of the imposition of a lien pursuant to section 938.29, Florida Statutes.... Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”). The state argues that West’s motion was insufficient to raise his claim because it addressed only the lack of notice, without presenting a substantive objection to the imposition of the fee. The state’s argument analogizes the substance of the instant motion to a defendant’s challenge to the imposition of ■written special conditions of probation absent oral pronouncement at sentencing, citing decisions from the Second and Fifth District Courts of Appeal that affirmed denials of rule 3.800(b)(2) motions because neither of the motions raised a substantive basis to strike the condition but, instead, raised only the procedural issue of lack of notice and an opportunity to object. See Ladson v. State, 955 So.2d 612 (Fla. 2d DCA 2007) (en banc); Grubb v. State, 922 So.2d 1002 (Fla. 5th DCA 2006). We distinguish the holdings in Ladson and Grubb. Those decisions rest on considerations unique to the imposition of certain special conditions imposed in the written order of probation, where the conditions were not orally pronounced by the trial court during the defendant’s sentencing hearing.

For example, in Ladson, during the pen-dency of his appeal, the appellant filed a rule 3.800(b)(2) motion seeking to strike one of the conditions of his probation, arguing merely that it was a special condition that the trial court had failed to orally pronounce. The Second District initially observed that such conditions historically were struck when challenged on appeal. However, quoting Grubb, it observed that rule 3.800(b)(2) now provides a defendant the procedural means by which to raise a substantive objection to probation conditions contained in a written order despite the lack of a contemporaneous objection made during the sentencing proceedings, thus satisfying procedural due process “‘without the need to orally pronounce otherwise proper special probation conditions.’ ” Ladson, 955 So.2d at 613 (quoting Grubb, 922 So.2d at 1003) (internal quotations omitted). As a consequence, the Second District held the appellant could not merely claim a violation of his due process right to notice and an opportunity to object “because he had the opportunity to assert in a rule 3.800(b) motion any substantive objection to the portion of the condition that requires oral pronouncement.” Id. Because Ladson’s objection in his motion was procedural only and did not raise a substantive basis on which to strike the special condition, the Second District affirmed the trial court’s denial of his motion. However, in contrast, the Second District has not hesitated to strike the imposition of a public defender’s fee when, in a rule 3.800(b)(2) motion, it was argued the fee was imposed without compliance with the procedures mandated by section 938.29(5) and rule 3.720(d)(1). See Del Valle v. State, 26 So.3d 650, 652 (Fla. 2d DCA 2010); Bruno v. State, 960 So.2d 907, 908 (Fla. 2d DCA 2007); Nash v. State, 958 So.2d 471, 471-72 (Fla. 2d DCA 2007).

Accordingly, we reject the state’s argument and hold West’s contention that he was denied the statutorily mandated hearing is a sufficient substantive basis on which to challenge the imposition of the public defender’s fee in a rule 3.800(b)(2) motion. See, e.g., Lang v. State, 856 So.2d 1105, 1106 (Fla. 1st DCA 2003) (addressing the appellant’s challenge to the imposition of a public defender’s lien in a rule 3.800(b) motion, reversing because the trial court failed to advise the appellant of his right to a hearing to contest the amount, and remanding to allow the appellant an opportunity “to be heard on the fee.”); Carter v. State, 787 So.2d 193, 193 (Fla. 1st DCA 2001) (reversing and remanding “to allow appellant an opportunity to contest the imposition of the public defender lien,” where the lack of a hearing at sentencing as to the amount was argued in a motion under rule 3.800(b)). Because the trial court did not advise West of his right to object to the amount of the public defender’s fee, or to his right to a hearing in which to do so, we reverse the imposition of the fee and remand with instructions to afford West an opportunity to request a hearing to contest the fee.

AFFIRMED, in part, and REVERSED, in part.

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


text:
    John Kevin VANZANT, Appellant/Cross-Appellee, v. Sharon Renae VANZANT, Appellee/Cross-Appellant.
    No. 1D10-3768.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    James T. Keenan of The Law Office of James T. Keenan, P.A., Jacksonville, for Appellant.
    William Bruce Muench, Jacksonville, for Appellee.
   PER CURIAM.

In this appeal of an amended final judgment of dissolution of marriage, the former husband challenges the trial court’s equitable distribution of the parties’ assets and liabilities and the amount of alimony and child support awarded. On cross-appeal, the former wife also challenges the amount of the alimony award and she raises two issues relating to the equitable distribution. For the reasons that follow, we reverse the equitable distribution and the alimony and child support awards and remand for further proceedings.

A review of the amended final judgment shows that the trial court abused its discretion in the equitable distribution of the parties’ assets and liabilities. The distribution ordered by the trial court resulted in the former wife getting substantially more of the parties’ net assets, as reflected in this table:

Former Husband Former Wife
Real property $ 340,000 $ 248,000
Mortgage ($ 157,409) $ 0
Former wife’s 401(k) $ 0 $ 2,000
Former husband’s $ 23,703 $ 34,998 401(k)
TOTAL $ 206,294 $ 284,998

The amended final judgment does not include any findings to justify this unequal distribution, and it appears from the judgment that the trial court was attempting to divide the parties’ assets and liabilities equally but that it made an error in calculating an “offset” based on the mortgage debt distributed to the former husband. Accordingly, the equitable distribution must be reversed and remanded to the trial court either to make an equal distribution of the parties’ assets and liabilities or to make specific findings justifying the unequal distribution. See § 61.075(1), Fla. Stat.; see also Collinsworth v. Collinsworth, 624 So.2d 287, 288-89 (Fla. 1st DCA 1993).

The trial court also abused its discretion in valuing the liquor store business at $425,000. In the amended final judgment, the trial court does not explain how it arrived at the $425,000 valuation, and no evidence was presented to support this valuation. It appears that the trial court simply “split the difference” between the values presented by the parties. This was error. See Augoshe v. Lehman, 962 So.2d 398, 403 (Fla. 2d DCA 2007) (“The trial court’s valuation must be based on competent evidence and cannot be determined by ‘split[ting] the difference.’ ”) (quoting Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003)); Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990).

Accordingly, we reverse the trial court’s valuation of the liquor store business and the equitable distribution in the amended final judgment and remand for reconsideration. Because we are reversing the valuation of the business and the entire equitable distribution, we need not reach the two issues raised by the former wife on cross-appeal related to the equitable distribution. The trial court is free to consider those issues on remand.

Lastly, we reverse the alimony and child support awards because the awards appear to have been based on the trial court’s finding that the former husband’s net income was “between $4,879.76 and $4,754.76.” This finding is not supported by the record because these figures reflect the gross income shown on the former husband’s amended financial affidavit, not his net income. Because the record does not contain any competent substantial evidence to support the trial court’s finding concerning the former husband’s net income, and because the awards of alimony and child support depend in large part on the former husband’s net income, the awards must be reversed and remanded for reconsideration. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (awarding alimony is discretionary but court must determine a spouse’s ability to pay based on his net income); Chaney v. Fife, 18 So.3d 44, 45 (Fla. 1st DCA 2009) (“A trial court’s determination of a party’s net income must be supported by competent, substantial evidence.”); § 61.30(3)(a), Fla. Stat. (requiring child support to be calculated based on the parents’ net income). In determining the amount of alimony on remand, the trial court shall make specific findings as to the former wife’s need for alimony and the former husband’s ability to pay. See § 61.08(2), Fla. Stat. In determining the amount of child support on remand, the trial court shall make specific findings explaining how the award was calculated and justifying any material deviation from the guideline support amount. See § 61.30(1)(a), Fla. Stat.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent with this opinion.

THOMAS, WETHERELL, and SWANSON, JJ, concur.

      . The former husband also contends that trial court abused its discretion in requiring him to pay the property appraisal fees incurred by the former wife and in requiring him to maintain life insurance to secure the alimony award. We affirm these aspects of the amended final judgment without discussion.

      . First, the former wife contends that the trial court erred in not requiring the former husband to pay statutory interest on the payments to the former wife for her share of the parties’ liquor store business, which resulted in her receiving less than half of the present value of the business. Second, the former wife contends that the trial court erred in failing to consider her tax consequences in its allocation of a portion of the husband’s 401(k) account to her as part of the equitable distribution.

      . The table does not include the liquor store business, which was distributed separately in the amended final judgment.

      . We find no error in the trial court's decision to award the former wife an ownership interest in the business even though 100% of the stock in the business was in the former husband's name. See Hamm v. Hamm, 492 So.2d 467 (Fla. 1st DCA 1986) (stating that the fact that shares of stock were titled in husband’s name only was not determinative of whether shares were subject to distribution as marital asset). It was undisputed that the business was a marital asset; the business was purchased from the former husband’s mother during the marriage and the mother testified that she sold the business to both parties.

      . The former husband’s expert valued the business at $256,500; the former wife and her mother testified that they overheard the former husband state that the business was worth $600,000 and that he had received a purchase offer in that amount. The midpoint between these figures is $428,250, which is close to the value assigned by the trial court.

      . Because we are remanding for reconsideration of the alimony award, we need not reach the former wife's argument on cross-appeal that the alimony amount awarded in the amended final judgment was inadequate. The trial court is free to consider this issue on remand.


text:
    Ray Edward CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4074.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Ray Edward Carter appeals an order revoking his probation for “using intoxicants to excess or possessing any drugs or narcotics.” At issue is whether the state put on competent evidence at the probation revocation hearing sufficient to prove that he used or possessed cocaine while on probation. We conclude the competent evidence was insufficient, and reverse.

On appeal, the standard of review is abuse of discretion, see State v. Carter, 835 So.2d 259, 262 (Fla.2002), which requires the reviewing court to evaluate the sufficiency of the evidence adduced at the probation revocation hearing. Hearsay is admissible at a probation revocation hearing to supplement or explain other, competent evidence, but hearsay alone will not support revocation. See, e.g., Johnson v. State, 962 So.2d 394, 396-97 (Fla. 2d DCA 2007). Even without the testimony of laboratory analysts who performed the tests, laboratory test results are admissible in a violation of probation hearing, although only for limited purposes. Where, as in the present case, laboratory test results are hearsay, they cannot serve as the only basis for revocation.

Testimony in the present case that laboratory test results were positive for cocaine, like the laboratory report itself, was hearsay that came into evidence over Mr. Carter’s hearsay objection. “ ‘Although hearsay evidence is admissible in violation of probation hearings, a violation cannot be sustained solely on hearsay evidence.’ Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997).” Crume v. State, 703 So.2d 1216, 1217 (Fla. 5th DCA 1997).

At the end of the hearing in the present case, the trial judge found that the state had presented sufficient non-hearsay evidence based on Officer Guedez’s field or “presumptive office test” and revoked probation: Officer Guedez testified over objection that he performed a field test of Mr. Carter’s urine, and that it tested positive for cocaine. On cross-examination, Officer Guedez testified that he did not know the name of the field test he performed or how it worked scientifically; he only knew “if it comes back positive or if it comes back negative.” Officer Guedez testified that two years earlier he had performed another field test and obtained positive results which were not, in that instance, borne out by the lab results. He did not claim to' have administered the field test more than once before, and that administration apparently yielded a false positive. The trial judge overruled Mr. Carter’s timely objection to “any results of any in-house tests done by the officer, specifically to lack of foundation to the reliability of the test.”

Officer Guedez gave no indication that he was certified to administer the test, or had in fact administered it with any frequency. Cf. Terry v. State, 111 So.2d 1093, 1094 (Fla. 5th DCA 2001) (finding probation officer’s testimony sufficient to show presence of cocaine metabolites in Terry’s urine where officer, although untrained in pharmacology or chemistry, testified to the nature of the field test and how it was performed, and that he was certified by the state to administer the test, which he administered fifty times a month). Officer Guedez did not testify to any independent ability to identify cocaine or its metabolites in urine.

Mr. Carter argues that the state did not establish the field test was reliable or performed by anybody who could interpret it reliably, citing Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989), where the only non-hearsay evidence the state used to prove a substance was heroin, at Weaver’s revocation of probation hearing, was the testimony of the agent who conducted a field test on the substance. The agent could not remember the name of the field test and did not know whether the test was reliable, and could not say, independently of the test, whether the substance was heroin. Id. at 443. The Third District found this evidence insufficient to establish that the substance involved was heroin, saying while “[p]roof of the identification of contraband does not require scientific tests ... it must be reliable and based on the observations of a witness with experience and training.” Id. at 444 (citing A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984)).

The present case resembles Weaver, a decision we recently cited with approval in Bray v. State, 75 So.3d 749 (Fla. 1st DCA 2011), in reversing revocation of Bray’s community control. Although Officer Gue-dez testified that the field test yielded positive results, he did not know the name of the field test or how the test worked, and he did not testify as to how often he administered the test. As far as can be told from the record, Officer Guedez performed the field test only twice — on the present occasion and on one other occasion, when his conclusion did not jibe with laboratory test results.

Officer Guedez did not demonstrate any expertise concerning or understanding of the workings of the test, and could not offer an opinion about the significance of the test results. See Robinson v. State, 982 So.2d 1260, 1261 (Fla. 1st DCA 2008) (reversing conviction for causing serious bodily injury while driving under the influence of alcohol when arresting officer offered lay opinion about horizontal gaze nystagmus (HGN) test results, explaining that “‘HGN test results should not be admitted as lay observations of intoxication because HGN testing constitutes scientific evidence [that must be excluded] unless the traditional predicates of scientific evidence are satisfied’” (quoting State v. Meador, 674 So.2d 826, 836 (Fla. 4th DCA 1996))).

The state had the burden to prove, by a preponderance of the evidence, that Mr. Carter had committed a willful and substantial violation of a condition of his probation. See Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996). “Hearsay is admissible in probation revocation proceedings, but cannot be the sole basis for revocation.” Hogan v. State, 583 So.2d 426, 427 (Fla. 1st DCA 1991) (citing Bass v. State, 473 So.2d 1367 (Fla. 1st DCA 1985)). Because the laboratory test results were hearsay, and Officer Guedez was not qualified to interpret the results of the field test, the state did not put on sufficient, competent evidence to prove that Mr. Carter used or possessed cocaine or any other drug or narcotic.

Reversed.

BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.


author: THOMAS, J.

text:
    Sheena RUSSELL and Brian Russell, Appellants, v. Camita Parden BEDDOW, Appellee.
    No. 1D10-3869.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellants.
    Melanie Shaw Seymour and Ellen C. Pappas of Seymour & Whitney, Fort Walton Beach, for Appellee.
   THOMAS, J.

Sheena and Brian Russell, plaintiffs in the personal injury action below, raise three issues on appeal, arguing that the trial court erred by: 1) denying their motion for directed verdict or, alternatively, new trial, with respect to the issue of comparative negligence; 2) denying their motion for additur or new trial with respect to the jury’s zero verdict for past lost wages; and 3) the trial court’s denial of certain cost items they sought to tax against Appellee. For the reasons explained below, we reverse as to the first issue. We affirm the second and third issues without further comment.

Factual Background

Appellant Sheena Russell (Russell) was the lead driver in a rear-end motor vehicle accident. Appellee conceded fault for causing the collision. Likewise, Russell admitted she was not wearing an available and functional seatbelt at the time of the collision. She testified that at the time of the collision her head went forward, causing her face to strike the steering wheel, followed by her head jerking back against the head rest. She suffered a “whiplash” type of cervical injury and presented evidence of a bulging cervical disc, the cause and extent of which was contested. Russell neither sought nor received treatment for any facial injuries. By the time of trial, Russell sought damages for various problems she contended stem from her neck injury.

Appellee asserted the “seatbelt defense,” arguing that Russell’s admitted failure to wear a seatbelt contributed to her cervical injury, if in fact she had such an injury. Consequently, the jury was asked to apportion negligence between Russell and Appellee. At the close of the evidence, Russell moved for a directed verdict on the apportionment issue, arguing that Appellee failed to present competent evidence that Russell’s failure to wear a seatbelt contributed substantially to her neck injury. The trial court denied the motion, and the jury ultimately decided that Russell was 35% at fault for her neck injury. Post-trial, Appellants renewed their directed verdict motion on this issue and, as an alternative, requested a new trial. The trial court denied both motions.

Analysis

In Insurance Co. of North America v. Pasakamis, 451 So.2d 447, 454 (Fla. 1984), our supreme court held:

Nonuse of the seat belt may or may not amount to a failure to use reasonable care on the part of the plaintiff. Whether it does depends on the particular circumstances of the case. Defendant has the burden of pleading and proving ... that there was a causal relationship between the injuries sustained by the plaintiff and plaintiffs failure to buckle up. If there is competent evidence to prove that the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiffs damages, then the jury should be permitted to consider this factor, along with all other facts in evidence, in deciding whether the damages for which defendant may otherwise be liable should be reduced.

“The ‘competent evidence’ standard referred to in Pasakamis requires a defendant to introduce evidence of the causal relationship between the injury and the failure to use a seat belt that is not uncertain, speculative, or conjectural-because that is the evidentiary standard applicable to plaintiffs for establishing their damages.” State Farm Mut. Auto. Ins. Co. v. Smith, 565 So.2d 751, 754 n. 8 (Fla. 5th DCA 1990).

This court considered the issue of the evidence necessary for supporting a seat-belt defense in Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996). The court noted:

Whether a defendant is obliged at all to present expert testimony in support of a seatbelt defense appears to depend upon the nature of the plaintiffs injuries. From what we can glean from the reported cases, the rule appears to be that in certain cases, such as those involving non-impact sprain/strain or orthopedic injuries (e.g., a herniated disc), the party offering a seatbelt defense is required to present expert testimony because the precise cause of the plaintiffs injury (i.e., whether the injury would have occurred had the plaintiff worn his seatbelt) is not within the province of the jury.

Id. at 523 (emphasis added).

Here, the injury in question was Russell’s cervical disc injury. Thus, pursuant to Bond, Russell was required to present expert evidence in support of her seatbelt defense. There was no accident reconstruction expert in this case, leaving only expert medical evidence. Our review of the medical testimony reveals just three instances where Russell’s failure to wear a seatbelt was discussed with an expert.

In the first, one of Russell’s treating doctors, Dr. Sheldon, was asked by defense counsel to confirm that his records reflected Russell was not wearing her seat-belt at the time of the collision, which he did. Counsel then asked, “And she described the accident to you by saying, I hit my nose on the steering wheel, then my head slammed back on the seat?” Dr. Sheldon answered, “Yes.” Counsel did not follow up with any question regarding what, if any, connection there was between Russell being unrestrained and her cervical disc injury. On re-direct, Dr. Sheldon confirmed that he never treated Russell for her nose or any other type of facial injury.

Similarly, defense counsel’s examination of Dr. VerVoort on the seatbelt topic was limited to asking whether he was aware that Russell was not wearing a seatbelt at the time of the collision, and he replied that he was. Again, counsel asked no follow-up questions regarding what, if any, significance this had regarding the existence and/or extent of Russell’s injury.

The only other instance in which a medical expert was asked about what, if any, role Russell’s failure to wear a seatbelt played in her injury occurred during the examination of the defense’s own expert, Dr. Koulisis. After the doctor confirmed that he was aware Russell was not wearing a seatbelt, defense counsel asked whether that failure “caus[ed] or contributed substantially to any injuries she may have sustained, the whiplash?” The doctor replied, “Theoretically, it could have made it a bit worse.” As noted earlier, however, the “competent evidence” standard requires evidence that “is not uncertain, speculative, or conjectural.” Smith, 565 So.2d at 754 n. 8. Thus, Dr. Koulisis’ response does not meet that standard. Also, the test is whether the failure “substantially” contributed to producing at least a part of Russell’s injury, not that it may have made the injury “a bit worse.”

On cross-examination, Russell’s counsel questioned Dr. Koulisis about his deposition testimony on this topic. When asked about the causal relationship between Russell’s failure to wear a seatbelt and her injury, Dr. Koulisis responded, “Did it make a big difference, no, because it wasn’t a big accident.” When asked if he was changing that opinion at trial, he replied, “No, same thing.” When asked if a seatbelt is “no big deal,” Dr. Koulisis replied, “Well, now let’s not go there now. You know, if you’re hitting a tree at 50 miles an hour, it’s a real big deal.” Dr. Koulisis then recounted that he was asked if the lack of a seatbelt could have been a big deal in this case, but that he did not think it actually made a “big difference.” Dr. Koulisis further testified that he did not think Russell was any worse off as of the time of trial than she would have been had she worn a seatbelt. Again, this testimony was insufficient to satisfy the Pasa-kamis standard that a defendant present “competent evidence to prove that the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiffs damages.” 451 So.2d at 454.

Russell testified that had she been wearing a seatbelt, her head would not have gone forward far enough to hit the steering wheel and then fling back into the head rest as creating “a causal relationship herself.” Appellee argues this was sufficient to satisfy its evidentiary burden. This argument is meritless. Russell is not an expert qualified to testify as to whether and to what extent she would have experienced a cervical disc injury had she been wearing a seatbelt.

Conclusion

Based on the foregoing, the trial court erred by failing to grant Appellants’ motion for a directed verdict on the seatbelt defense and the attendant apportionment of fault. We reverse and remand with instructions to the trial court to enter a judgment in Appellants’ favor on the issue of liability, and adjust the damage award accordingly. See DO & CO Miami Catering, Inc. v. Chapman, 899 So.2d 1286, 1237-38 (Fla. 3d DCA 2005) (affirming directed verdict on seatbelt defense where defendant presented no evidence to meet its burden of proof, and comparing the facts to those in Bond).

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

PADOVANO and LEWIS, JJ., concur.


text:
    Roger J. GONZALEZ, Appellant, v. Dawn Elizabeth CLAYWELL, Appellee.
    No. 1D10-5694.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Angela C. Flowers of Kubieki Draper, Ocala, for Appellant.
    Warren R. Todd and Erick M. Drlicka of Emmanuel, Sheppard & Condon, Pensacola, for Appellee.
   PER CURIAM.

Roger J. Gonzalez, the defendant in this negligence action, appeals an order awarding attorneys’ fees to Dawn Elizabeth Claywell, appellee, pursuant to section 768.79, Florida Statutes (2008), and Florida Rule of Civil Procedure 1.442. The proposal for settlement executed by Clay-well, who suffered significant injuries in the vehicular collision, offered to settle her lawsuit for $240,000, if Gonzalez’s insurance company, GEICO, tendered a check in the amount of $240,000 made payable to her. The offer was not accepted and, after a jury trial, Claywell was awarded a total judgment of $394,029.71, which was affirmed on appeal. Gonzalez v. Claywell, 24 So.3d 1260 (Fla. 1st DCA 2009). Because we find that Claywell’s offer was invalid and unenforceable, we reverse.

We conclude that the proposal for settlement was invalid and unenforceable because it was impossible for Gonzalez to meet the conditions of the proposal. Specifically, the proposal required that GEICO, a nonparty, tender a check well in excess of its policy limits of $25,000, even though there has been no determination that GEICO is liable to pay more than its policy limits. See Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980) (recognizing that insurer who acts in bad faith so as to subject insured to a judgment in excess of the policy limits may be liable for the excess judgment). Because the proposal contained a condition that Gonzalez could not possibly perform, and divested him “of independent control of the decision to settle,” it was invalid and unenforceable. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646, 649 (Fla.2010). At a minimum, the proposal is ambiguous because Gonzalez could not effectively evaluate the condition that GEICO tender the settlement check. Rule 1.442 requires a proposal to be as specific as possible “leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.” Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002). “If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006).

REVERSED.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.

      .Clay well’s proposal for settlement provides, in pertinent part, as follows:
      2. The Plaintiff, Dawn Elizabeth Claywell, makes this Proposal for Settlement to the Defendant, Roger J. Gonzalez.
      3. Plaintiff’s Proposal for Settlement is made in an attempt to settle the above styled lawsuit.
      4.Plaintiff, Dawn Elizabeth Claywell agrees to settle the above-styled lawsuit for $240,000 on the following conditions:
      a. Defendant, Roger J. Gonzalez, accepts Plaintiff’s Proposal for Settlement; and

      b. Defendant, Roger J. Gonzalez’s insurance company, GEICO, tenders a check made payable to Plaintiff, Dawn Elizabeth Claywell, and her attorneys, Emmanuel, Sheppard and Condon, for $240,000 within fourteen (14) days from the date on which Defendant, Roger J. Gonzalez, accepts Plaintiff’s Proposal for Settlement.
      5. If the conditions in paragraph 4 above are met in a timely fashion. Plaintiff, Dawn Elizabeth Claywell, will dismiss the above styled lawsuit with prejudice.

      . After a thorough review of the record, we are satisfied that Gonzalez preserved his argument that the proposal for settlement was invalid and unenforceable.


text:
    ON-SITE FASTENERS AND CONSTRUCTION SUPPLIES, INC., a Florida corporation, Appellant/Cross-Appellee, v. MAPFRE INSURANCE COMPANY OF FLORIDA, a Florida corporation, Appellee/Cross-Appellant.
    No. 1D10-5797.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.

      Cristine M. Russell of Rogers Towers, P.A., Jacksonville; M. Scott Thomas of Rogers Towers, P.A., St. Augustine, for Appellant/Cross-Appellee.
    Dennis R. Schutt and J. Tracy Wilken-son of Schutt, Schmidt & Noey, Jacksonville, for Appellee/Cross-Appellant.
   THOMAS, J.

Appellant appeals the trial court’s order finding that Appellant’s insurance policy provided insufficient coverage for its loss. Appellee cross-appeals, contending the trial court erred by finding an ambiguity in the insurance policy; thus, the theft exclusion relied upon by Appellee did not preclude coverage for Appellant’s loss. We reverse the trial court as to the issue on appeal. We affirm the issue on cross-appeal without further comment.

Appellant operates a construction supply business with locations in Orange Park and St. Augustine. Appellee issued a commercial property insurance policy covering both locations. The Policy Declarations provided that coverage for loss by theft was excluded for the Orange Park location, but was included for the St. Augustine location. The policy provided various types of coverage for the premises and “business personal property” (which included stock/inventory). It also included various provisions for extending coverage for up to 80 days for “newly acquired” property and “property off-premises.”

Subsequently, Appellant entered into an agreement to lease another warehouse facility in the same business park in which its Orange Park premises was located. Although the new lease provided that Appellant would take possession of the premises on November 1, 2007, Appellant obtained permission to do so two weeks early to accommodate a large shipment of inventory due to arrive around that time. The shipment was stored in the newly leased warehouse; two weeks later, approximately $19,000 of inventory was stolen during a burglary. Appellant filed a claim with Ap-pellee, which was denied on the grounds that the loss was excluded from coverage because it occurred as a result of theft. Appellant filed a declaratory judgment action, and both parties moved for summary judgment.

In support of its motion, Appellant argued that it was entitled to coverage pursuant to the following policy provision:

(a)If this policy covers Your Business Personal Property, you may extend that insurance to apply to:
(i) Business personal property, including such property that you newly acquire, at any location you acquire other than at fairs, trade shows or exhibitions.

Appellant also argued that the theft exclusion applied only to the Orange Park property address listed on the Declarations, the loss did not occur at that location, and nothing in either the policy or Declarations indicates that the exclusion applied to newly acquired property stored in a different location. Thus, because there was an ambiguity in the policy, it must be read in favor of Appellant as the insured.

In support of its motion, Appellee cited to a policy provision concerning newly-leased off-premises property:

d. Property Off-Premises
(1) You may extend the insurance proved ... to apply to your Covered Property while it is away from the described premises, if it is:
(a) Temporarily at a location you do not own, lease, or operate;
(b) In storage at a location you lease, provided the lease was executed after the beginning of the current policy term; or
(c) At any fair, trade show or exhibition.

This provision provides for a maximum of $10,000 in coverage. Appellee argued that the theft exclusion for the Orange Park location applied to Appellant’s newly-leased premises located in the same business park.

The trial court, relying on the provision cited by Appellee, found that, although the theft did not occur at either address specified in the Policy Declarations, “the Policy extends coverage beyond those locations. Specifically, the Policy extends coverage up to a maximum of $10,000.00, to ‘covered property while it is away from the described premises if it is ... in storage at a location you lease provided the lease was executed after the beginning of the current policy term.’ ”

Based on these findings, the trial court granted Appellant’s motion for summary judgment, and denied Appellee’s motion. This appeal and cross-appeal followed.

We review de novo the trial court’s interpretation of the insurance policy contract. First Professionals Ins. Co., Inc. v. McKinney, 973 So.2d 510, 513-14 (Fla. 1st DCA 2007).

When read in pari materia, the “Off-Premises” clause applies to temporary storage situations, such as those involving property that had been located in a site described in the policy, but moved off-site for storage, or where covered property is transported to a fair, trade show, or exhibition. Here, however, the stolen property was not “away from the described premises.” Rather, it was in a shipment of new inventory housed in the newly-leased warehouse.

The Newly Acquired Property section of the policy provides for a less transient situation than that contemplated by the Off-Premises provision. We agree with Appellant that clause a.(2)(a)(i) applies here. Although somewhat poorly drafted, this subsection provides coverage for business personal property located at a “newly acquired location,” so long as it is not at a fair, trade show, or exhibition (i.e., it is not a temporary situation covered by the Off-Premises provision). In addition, it covers business personal property that is newly acquired.

This provision more closely fits what happened here, where Appellant acquired a new warehouse to store its new inventory. This is not the type of temporary storage scenario addressed in the Off-Premises clause; thus, the trial court should not have applied the Off-Premises section of the policy in reaching its correct conclusion that the policy provided theft coverage for Appellant’s loss of business personal property.

For the foregoing reasons, we find that the trial court erred by applying the incorrect policy provision in correctly finding the insurance policy covered Appellant’s loss. Thus, we AFFIRM the trial court’s denial of Appellee’s motion for summary judgment, and REVERSE the trial court’s order to the extent it relied on the incorrect policy provision in correctly finding the policy provided coverage for Appellant’s loss.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

PADOVANO and LEWIS, JJ., concur.

      . This provision affords $100,000 in coverage, compared to the $10,000 afforded by the provision the trial court applied.