author: WARNER, J.

text:
    Flavio SANTISTEBAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-229.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 31, 2011.

      Bryant R. Camareno, Tampa, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction and sentence for four counts of vehicular manslaughter. He makes four claims: (1) that the trial judge erred in failing to recuse himself from the appellant’s criminal case when he was presiding over a civil case involving the deaths of the individuals; (2) that the evidence did not support a finding of criminal negligence; (3) that the verdict was “inconsistent with the weight of the evidence”; and (4) that the court erred in failing to grant a more significant downward departure. As to issue one, appellant’s motion was technically deficient but failed to state a legally sufficient ground for disqualification; as to issue two, we find that the state presented sufficient evidence of defendant’s reckless conduct to survive a motion for judgment of acquittal; and as to issue three, the appellate court has no authority to overturn a verdict simply because it believes that it is inconsistent with the evidence. Finally as to issue four, while the extent of a downward departure generally is not appealable, we find that the trial judge relied upon constitutionally impermissible considerations in determining the extent of the downward departure. We therefore affirm the convictions, but remand for resentencing before a different judge.

Appellant was charged by amended information with four counts of vehicular homicide, arising out of a February 11, 2005, gasoline tanker accident that killed four people: Gloria Halpern, Alan Klein, Deborah Klein, and Anita Epstein. The trial took several days with multiple witnesses, revealing a tragic set of circumstances.

At approximately 10:30 on the night of the incident, appellant was driving a gasoline tanker from 1-595 in Fort Lauderdale onto the northbound entrance ramp to the Florida Turnpike. The tanker contained over 9,000 gallons of fuel. Appellant entered the curving turn of 1-595 onto the turnpike substantially in excess of the 35-mile-per-hour posted speed. Meanwhile, the four victims occupied a white 2001 Mercury, which was traveling ahead of the tanker.

Two lay witnesses, Christina Robinson and Maria Thompson, saw the events leading up to the accident. Ms. Robinson testified that she had driven eastbound on I-595, before exiting to go northbound on the Florida Turnpike. Just prior to entering the northbound ramp, she looked to her left so she could merge to get into the lane for the Turnpike. In her rearview mirror, she saw a smaller white vehicle to her left, one or two car lengths behind her. She also saw “larger white lights behind that white vehicle.” As she approached the ramp, the large white lights came behind her vehicle, getting closer and larger. Ms. Robinson accelerated because the white lights were coming closer, but she was not gaining any distance between her vehicle and the lights. She estimated that while traveling the ramp to the Turnpike entrance, her speed varied from 25 to 40 miles per hour. Ms. Robinson noticed that the large white lights behind her had started merging into the left lane where they began to “wiggle, ‘jiggle like they were losing control almost.” At this point, Ms. Robinson could tell it was a large tanker which was out of control. The front cab started veering to the left, “almost like a jackknifing position.” Ms. Robinson started to slow down and move over “when the front of the cab flipped over on the driver’s side.” As the truck started to lose control, Ms. Robinson saw the smaller white vehicle jam on its brakes and skid.

When Ms. Robinson stopped and got out of her car, she saw that the tanker had flipped over on its side, but she could not see the white vehicle. The truck had caught fire. At first, the fire was self-contained in the rear of the truck, but the flames started to grow, engulfing the entire truck. Gasoline had spilled down the roadway, and both lanes on the ramp became covered in flames. She called 911 and, as she was on the phone, she saw appellant come over the guardrail. She was unable to communicate with him, however, because he spoke Spanish.

Maria Thompson, who was driving home with her six-year-old son, also witnessed the accident. She was exiting 1-595 to go onto the northbound Turnpike. There was not much traffic at the time. She testified that she was driving in the right lane when a tanker truck cut her off as the truck was merging onto the north Turnpike. She hit the brakes and slowed down “because he was going fast” and she did not want to be near him. Her car did not make contact with the tanker. She testified that she was driving about 25 to 30 miles per hour when the tanker cut her off. She could not say how fast the tanker was going, but she explained that it was “more than normal and faster than [she] was going.”

Ms. Thompson saw a white car “way ahead” in the left lane, approximately ten car lengths ahead of her. She saw the tanker swerving back and forth because he was obviously “losing control and trying to get control of it.” The tanker went onto its two left wheels, flipped over on its side, and then skidded. Fluid was spreading and the rear of the truck was on fire, so she backed up to get on the southbound Turnpike, then made a U-turn to head north and proceed back home. As she was passing back by the crash site, there was an explosion and the fire spread onto the Turnpike. She did not stop at the crash site because her son was “extremely scared,” but she later contacted the police.

Appellant lost control of the tanker, which rolled over on its side, slid to a stop, and became engulfed in flames. While not apparently hit by the skidding tanker, the Mercury vehicle skidded and was trapped by the tanker when it came to rest. The tanker caught fire and exploded, engulfing the Mercury in flames. Witnesses saw one individual, Mr. Klein, exit the Mercury in burning clothes. He ran to a nearby retention pond and fell in. The medical examiner found that he had died of drowning but had thermal burns over 65% of his body. The other three occupants of the vehicle died of “conflagration with injuries.”

The state’s accident reconstruction expert, Donald Felieella, testified to his opinion that “[t]he cause of the traffic crash was that the driver of the tanker truck came through that curve at a speed that was too fast to negotiate it. And he was cutting the corner part in the right lane and part off the road. And that his speed is what caused the vehicle to overturn.” Using a mathematical formula, Felieella opined that speed of the tanker at the time of the rollover was 56 to 60 miles per hour. Damage to the white Mercury vehicle was from the heat of the fire. The vehicle did not have significant crush damage, indicating that there was no significant impact with the tanker.

Felieella noted that there was an advisory sign of 35 miles per hour at the beginning of the ramp to the Turnpike, but the posted speed limit was 65 miles per hour. He acknowledged that a driver cannot be issued a speeding ticket for driving in excess of an advisory speed. However, in Felicella’s opinion, a driver of a full gasoline tanker could not safely navigate the entrance ramp’s curve at 65 miles per hour without rolling over.

After the state rested, the defense moved for a judgment of acquittal, arguing that the state failed to establish that appellant operated the vehicle in a reckless manner. The defense argued that this was simply a traffic accident in which speed was a contributing factor, but appellant’s speed alone did not mean his driving was reckless. The trial court denied the motion, concluding that the state had made a prima facie case.

The defense presented its case, consisting of its own accident reconstruction expert, Donald Moore, who differed from Felieella on the calculation of the speed of the tanker. He opined that appellant’s tanker was probably traveling somewhere between 45 and 50 miles per hour at the time of the rollover. Moore calculated a worst-case scenario of 59 miles per hour, but believed that such a figure “probably is a little bit too high.”

After the defense rested and moved again for a judgment of acquittal, the trial court submitted the case to the jury. Against the recommendation of counsel, appellant refused jury instructions on any lesser-included offenses. After deliberations, the jury found appellant guilty of four counts of vehicular homicide as charged in the information.

The minimum guidelines sentence was 37 years, and the maximum was life in prison. The defense moved for a downward departure on the ground that the incident was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The court pronounced a sentence of 36 years, downwardly departing by only a year. This appeal follows.

On appeal, appellant argues that the trial court erred in denying his motion to disqualify Judge Streitfeld. Judge Streit-feld was presiding over a civil case involving the incident. Because the judge’s docket was cleared during the week that the ci'iminal trial was set, he volunteered to help the assigned judge by taking the criminal case, as he already had familiarity with the case. Although not objecting at first, appellant later filed an “Objection to Case Reassignment,” objecting to Judge Streitfeld presiding in the criminal case, as he had already made a legal determination in the civil case that there was sufficient negligence to permit the plaintiff to plead a claim for punitive damages. Because the issue of the degree of appellant’s negligence would also be raised in a motion for judgment of acquittal in the criminal trial, appellant argues that Judge Streitfeld should have disqualified himself. We find, however, that the motion was technically insufficient at the time it was presented. Even if it were sufficient, we conclude that the issue raised did not require disqualification.

The standard of review of the denial of a motion to disqualify is de novo. Edwards v. State, 976 So.2d 1177, 1178 (Fla. 4th DCA 2008). A motion to disqualify is governed by the procedural requirements of Florida Rule of Judicial Administration 2.330. One of the technical requirements of the rule is that a motion to disqualify shall “be sworn to by the party signing the motion under oath or by a separate affidavit.” Fla. R. Jud. Admin. 2.330(c)(3). Additionally, the “attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith.” Fla. R. Jud. Admin. 2.330(c). If the technical requirements of the motion are not met, the motion is legally insufficient. See Barnhill v. State, 834 So.2d 836, 843 (Fla.2002) (holding that regardless of whether the judge’s commentary otherwise warranted disqualification, “the technical requirements of the motion were not met and the trial court’s decision to deny the motion as legally insufficient was proper”). Thus, failure to support a motion for disqualification with the client’s sworn signature or an affidavit is a basis to deny the motion. Wal-Mart Stores, Inc. v. Carter, 768 So.2d 21, 22 (Fla. 1st DCA 2000); Gaines v. State, 722 So.2d 256, 256 (Fla. 5th DCA 1998).

Here, the trial court properly denied appellant’s motion because the motion did not comply with the procedural requirements of rule 2.330. The motion for disqualification was not supported by appellant’s sworn signature, nor was it supported by any affidavit. Further, defense counsel did not separately certify that the motion and the client’s statements were made in good faith. For these technical reasons alone, the trial court did not err in denying the motion as legally insufficient.

While appellant acknowledges that his motion was technically deficient because it failed to include the required verification, he maintains that he was not given the opportunity to swear to the motion in light of the trial court’s “haste” to summarily deny the motion. However, this contention is not borne out by the record. When the written motion was presented to the trial court, defense counsel noted that he had already prepared and filed the motion and was presenting it to the trial court for a ruling. Thus, the failure to comply with the technical requirements of the rule cannot somehow be attributed to the trial court.

Apart from the technical requirements of the rule, the substantive test for whether a motion to disqualify is “legally sufficient” is whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983); Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002); Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981); see also Florida Code of Judicial Conduct, Canon 3E(1) (providing that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned”).

Accordingly, the rule states that “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). In determining the legal sufficiency of the motion, “[i]t is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling.” Corie v. City of Riviera Beach, 954 So.2d 68, 70 (Fla. 4th DCA 2007). Nonetheless, the fear of judicial bias must be objectively reasonable. Foy v. State, 818 So.2d 704, 706 (Fla. 5th DCA 2002).

The facts and reasons given for the disqualification must tend to show personal bias or prejudice. Levine v. State, 650 So.2d 666, 667 (Fla. 4th DCA 1995). The fact that the judge has made adverse rulings against the defendant in the past is not an adequate ground for recusal, nor is the mere fact that the judge has previously heard the evidence. Mansfield v. State, 911 So.2d 1160, 1171 (Fla.2005); Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004). Moreover, a judge is not disqualified from presiding over a criminal trial because the judge presided over civil proceedings involving the defendant, even where the civil proceedings arise out of the same incident as the criminal proceedings. See, e.g., State v. Tanner, 224 La. 374, 378, 69 So.2d 505, 507 (1953); Adams v. State, 220 Miss. 812, 816-17, 72 So.2d 211, 213-14 (1954); State v. Reeter, 848 S.W.2d 560, 564 (Mo.Ct.App.1993); King v. State, 216 Tenn. 215, 226, 391 S.W.2d 637, 643 (1965). Likewise, in the context of a probation revocation proceeding, the Fifth District held that the defendant’s motion to disqualify the trial judge was legally insufficient where the same judge was presiding over his dependency case, and the defendant did not allege that the judge made any comments or rulings suggesting bias in that case. See Scott v. State, 909 So.2d 364, 367-68 (Fla. 5th DCA 2005).

Appellant failed to allege any objectively reasonable fear of judicial bias. The mere fact that Judge Streitfeld made an adverse ruling in a related civil case on a threshold issue of whether the plaintiff in that case could plead a claim for punitive damages did not demonstrate that the judge was personally biased or prejudiced against appellant. Instead, the trial judge’s ruling in the civil case was merely the exercise of a legitimate judicial function. Thus, appellant’s motion to reassign the case was properly denied as legally insufficient.

In his second issue, appellant claims that the evidence at trial showed, at best, only excess speed as causing the accident, which is legally insufficient to show that he drove with a willful and wanton disregard of safety that rose to the level of criminal culpability. The state argues that appellant’s conduct involved much more than merely speed in that he was driving a large tanker filled with highly combustible material and was veering in and out of traffic. We agree with the state that the evidence was sufficient to avoid a motion for judgment of acquittal.

A de novo standard of review applies when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the state that may be reasonably inferred from the evidence. Turner v. State, 29 So.3d 361, 364 (Fla. 4th DCA 2010). A court should grant a motion for judgment of acquittal only if “the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974). Where there is room for a difference of opinion between reasonable minds as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the trial court should submit the case to the jury. Id. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Pagan, 830 So.2d at 803 (citations omitted).

The crime of vehicular homicide is defined as the killing of a human being “caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2004). The degree of culpability required for vehicular homicide is less than the level of culpable negligence necessary to prove manslaughter, but more than a mere failure to use ordinary care. McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a “willful or wanton disregard for the safety of persons or property.” See State v. Del Rio, 854 So.2d 692, 693 (Fla. 2d DCA 2003); § 316.192(1), Fla. Stat.

In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm. D.E. v. State, 904 So.2d 558, 562 (Fla. 5th DCA 2005). Although the defendant need not have foreseen the specific circumstances causing the death of the victim, the defendant should have reasonably foreseen that the same general type of harm might occur if he knowingly drove his vehicle under circumstances that would likely cause death or great bodily harm to another. Michel v. State, 752 So.2d 6, 12 (Fla. 5th DCA 2000).

A number of appellate courts in Florida have stated that “speed alone” is insufficient to support a conviction for vehicular homicide. See, e.g., House v. State, 831 So.2d 1230, 1233 (Fla. 2d DCA 2002) (holding that evidence was insufficient to support conviction for vehicular homicide where the defendant was driving 60 miles per hour in a 30 mile per hour zone before the collision and a minimum of 50 miles per hour at the time of impact); Hamilton v. State, 439 So.2d 238, 238-39 (Fla. 2d DCA 1983) (holding that speed alone will not support a conviction, but that other factors supported the vehicular homicide conviction where defendant was speeding at 50 to 60 miles per hour in a 30 mile per hour residential area with “SLOW-CHILDREN PLAYING” sign). This court, however, has held that grossly excessive speed alone can constitute reckless conduct. See Pozo v. State, 963 So.2d 831, 833-34 (Fla. 4th DCA 2007) (holding that evidence was sufficient to support conviction for vehicular homicide where defendant was driving anywhere from 67 to 90 miles per hour in a residential neighborhood, which alone justified denial of the motion for judgment of acquittal, even though the defendant was also playing with his CD, driving in rainy conditions, and rounding a curve in the road); see also Copertino v. State, 726 So.2d 330, 332-34 (Fla. 4th DCA 1999).

Taking the evidence in the light most favorable to the state, appellant was driving a gasoline tanker filled with 9,000 gallons of fuel at 56 to 60 miles per hour around a curving highway ramp with an advisory speed of 35 miles per hour and with other vehicles nearby. He was weaving and cut off at least one other driver, approached and overtook another driver, forcing her to change lanes quickly. As the trial court noted at sentencing:

Well, actually what occurred is he cut off one person, swerved, came up behind another car and then lost control of his vehicle. As far as pattern of recklessness, it involved more than one vehicle. Unfortunately the vehicle involving this family was in the wrong place at the wrong time.... It wasn’t just the speed. It was the whole method in which he was driving at the time.

We conclude that the state’s evidence was sufficient to show that the defendant should have reasonably foreseen that driving his tanker fully loaded with highly combustible fuel into a curve at such speeds as would likely cause him to lose control of his vehicle and cause it to overturn, would involve serious injury to himself, if not others. That others lost their lives was indeed a foreseeable and tragic occurrence. The trial court did not err in denying the motion for judgment of acquittal.

Appellant also suggests that the verdict was contrary to the weight of the evidence, but an appellate court has no authority to reverse a conviction on the ground that the verdict is contrary to the weight of the evidence. Robinson v. State, 462 So.2d 471, 476-77 (Fla. 1st DCA 1984); see also Tibbs v. State, 397 So.2d 1120 (Fla.1981). Rather, an appellate court concerns itself only with the legal sufficiency of the evidence. Toliver v. State, 953 So.2d 713, 715 (Fla. 1st DCA 2007). This issue is without merit.

Finally, appellant claims that the court erred in downwardly departing by only one year where the evidence showed that this was an isolated incident committed in an unsophisticated manner for which the appellant had shown remorse. However, appellant also complains that the trial judge improperly used religious considerations in determining the sentence. Under the unique facts of this case, we conclude that the trial judge relied upon constitutionally impermissible considerations in determining the extent of the downward departure.

A trial court’s decision to grant a downward departure is a two-step process. State v. Alonso, 31 So.3d 265, 266 (Fla. 4th DCA 2010). “First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1).” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999) (emphasis in original). Second, where the requirements of the first step are met, the trial court “must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068 (emphasis in original). If a trial court grants a downward departure, an appellate court does not have the power under the current statutory scheme to review the extent of the downward departure. See § 921.0026(1), Fla. Stat. (2008) (“The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.”).

At sentencing, the defense moved for a downward departure on the ground that the offense was “committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” a statutory ground for seeking a downward departure. See § 921.0026(2)(j), Fla. Stat. Although the court seemed unimpressed with the appellant’s statements of remorse, the court still downward departed but only by a year from the minimum guidelines sentence permitted. In pronouncing sentencing, the judge relied on a religious concept in determining the sentence. The court said:

Now, no number of years will bring back four extraordinary people or the scars that have been created as a result of what happened to those four extraordinary people.
In the Jewish tradition there is a concept [of chai it’s 18] that stands for life which is something I wish to be mindful of in imposing a sentence over the loss of life of four Jewish people.
I accept that you are a good friend, are a loving husband, and will prove to be a good father to your child as you have another child I understand. It is my sentence to downward depart by one year and impose a sentence of [double chai] 36 years, Florida state prison.

While the appellant argues that the trial court abused its discretion in consideration of Jewish tradition and the use of chai, discretion is not involved. The essence of his claim, albeit obliquely made, is that the court used improper criteria in determining the extent of a downward departure.

Although an appellate court generally may not review a sentence that is within statutory limits, an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence. Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010). Reliance on constitutionally impermissible factors is a violation of a defendant’s due process rights. See Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004); see also Holton v. State, 573 So.2d 284, 292 (Fla.1990). Examples of factors that are constitutionally impermissible or totally irrelevant to the sentencing process include the race, religion or political affiliation of the defendant. See Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). “[S]imilar principles apply when a judge impermissibly takes his own religious characteristics into account in sentencing.” United States v. Bakker, 925 F.2d 728, 740 (4th Cir.1991) (holding that judge violated due process by stating at sentencing that “those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests”); see also Singleton v. State, 783 So.2d 970, 979 (Fla.2001) (holding that biblical references should not be used at sentencing, but any error in the trial judge’s lone biblical reference in penalty phase of trial was harmless where jury was not exposed to the reference and the court’s order stated that it did not consider any aggravators other than the two set forth in the order).

In Nawaz, 28 So.3d at 125, the trial court was sentencing the appellant for soliciting a minor to engage in an unlawful act. In speaking to the defendant, the trial court accused him of being a degenerate, and the court commented on the appellant’s statement in his presentence interview that he thanked God that he had married a woman from his own country, Pakistan, and not an American woman. The court said, “I join you in thanking God you did not marry an American woman.” Raising the issue for the first time on appeal, the appellant argued that the court improperly took into account his national origin in imposing sentence. The First District found that because such an error was a defect in the sentencing process, it could review the issue as a fundamental error. Noting that national origin was a constitutionally impermissible factor where it becomes a basis for determining the sentence, the court found that the comments of the trial court “could reasonably be construed to suggest that the trial judge based appellant’s sentence, at least in part, on his national origin.” The court concluded:

We are further mindful of the mandate that, for justice to be done, it must also appear to be done. See, e.g., Scott v. Anderson, 405 So.2d 228, 234 (Fla. 1st DCA 1981) (“[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ”) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). Because it is unclear whether the trial court would have imposed the same sentence absent consideration of appellant’s national origin, we must vacate appellant’s sentence and remand for resen-tencing before a different judge.

Id. at 125 (emphasis in original).

If we were to substitute “religion” for “national origin,” the Nawaz case is on “all fours” with this case, except that here, the religious concept formed the very basis of calculating the sentence, not just a part. To establish the length of sentence based upon specific religious principles infuses it with a factor which is constitutionally impermissible. Having found a valid ground for departure, the court nevertheless made what was essentially an insignificant departure to bring the sentence within a religious precept. We cannot say that the sentence would be the same without reliance on the impermissible ground.

We therefore must vacate the appellant’s sentence and remand for resentenc-ing before a different judge. We acknowledge that this will cause pain to the families of the victims, which we much regret; nevertheless, the consideration of constitutionally impermissible factors in sentencing compels this result.

For the foregoing reasons, we affirm the conviction, vacate the sentence, and remand for resentencing before a different judge.

TAYLOR and LEVINE, JJ., concur.

      . Using a separate "slide-to-stop” calculation, which gives a minimum speed at the time of rollover, Felieella calculated a minimum speed of 52 to 62 miles per hour.

      . Under this canon, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. See Commentary to Florida Code of Judicial Conduct Canon 3E(1).

      . By contrast, the Fifth District in dicta has expressed skepticism about the maxim that "speed alone is not enough,” but the court found it unnecessary to reach the question. See State v. Lebron, 954 So.2d 52, 55 (Fla. 5th DCA 2007) ("This court, however, has never directly said that speed alone is not enough. When confronted with the issue, we, as most other appellate courts of this state, have found that speed was not alone in what amounted to reckless driving. Perhaps it is because excessive speed for the prevailing conditions is rarely without other circumstances.”).

      . The bracketed portion is not in the written transcript. However, the appellant’s brief included the reference to chai. Later, this court was provided with a DVD with the sentencing proceeding where the court clearly uses the term. The state does not contest that the judge said these comments. It is disturbing to this court that the official transcript does not contain all of what the court said on such an important part of the record.

      . The use of the double chai was also on the DVD of the sentencing proceeding but not in the official transcript.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bryan URLRICH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3472.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 31, 2011.

      Bryan Urlrich, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009), and Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007).

WARNER, CIKLIN and GERBER, JJ., concur.


author: PER CURIAM. GROSS, J.,

text:
    Joseph CHARNECO, Petitioner, v. Kevin GAYDA, Kelly Gayda, and Nicholas Charneco, Respondents.
    No. 4D11-2606.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Nov. 2, 2011.
    Neil Rose of Bernstein, Chackman, Liss & Rose, Hollywood, for petitioner.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, John J. Uustal and Eric S. Rosen of Kelley, Uustal, PLC, Fort Lauderdale, for respondents.
   PER CURIAM.

The petition for writ of certiorari is dismissed.

WARNER and POLEN, JJ., concur.

GROSS, J, concurs specially with opinion.

GROSS, J.,

concurring specially.

Although I find the trial judge’s order to be a departure from the essential requirements of law, I see no reason why the harm that will result from the order cannot be corrected on plenary appeal. The order fails to meet the requirements for certiorari review of an order denying discovery. See Romanos v. Caldwell, 980 So.2d 1091, 1092 (Fla. 4th DCA 2008). (observing that certiorari review of orders denying discovery “is reserved for extraordinary and highly unusual situations where the trial court’s order constitutes a serious departure from the essential requirements of law that cannot be remedied on direct appeal”). In a case where the defendant below has not been shown to have any responsibility for the sanctioned conduct of his stricken experts and prior counsel, there is nothing to prevent the trial judge from reconsidering the severity of the sanction he has imposed.


author: MARSTILLER, J.

text:
    Margaret A. ROSENBERGER, Margaret Smith, et al., Appellants, v. Wesley JAMISON, Director and Registered Agent of the First Baptist Church of Micanopy, Inc., et al., Appellees.
    No. 1D10-5155.
    District Court of Appeal of Florida, First District.
    Sept. 16, 2011.
    Rehearing Denied Oct. 26, 2011.

      Joseph W. Little, Gainesville, for Appellants.
    Jamie Billotte Moses and Jonathan C. Hollingshead of Fisher, Rushmer, Werren-rath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees.
   MARSTILLER, J.

The underlying controversy in this case is over how the First Baptist Church of Micanopy, Inc., (“Church”) should be governed. The parties have divergent beliefs about church governance, and their disagreement fueled a struggle for control of the Church. Their power struggle ended up in circuit court, where the ousted group sued the Church and its pastors for breach of fiduciary duty. The plaintiffs, Appellants in this court, alleged that the defendants acted unlawfully by failing to follow the procedures set forth in the Church’s Articles of Incorporation and Bylaws for removing individuals as members and officers of the Church, electing directors, and amending the Articles and Bylaws. Concluding, after holding an evidentiary hearing, that it lacked jurisdiction over what it deemed an ecclesiastical dispute, the circuit court entered final judgment for the defendants. We agree with the lower court’s decision and accordingly affirm the judgment.

Background

The First Baptist Church of Micanopy, Inc., is a non-profit corporation organized under chapter 617, Florida Statutes. The Church’s Articles of Incorporation on file with the Secretary of State when the controversy arose (“1955 Articles”) provided that “[a]ll active members of the First Baptist Church of Micanopy, Florida, ... shall become members of this corporation and comprise the entire membership of this corporation.” Under Articles VI and VII, there was to be a seven-member board of directors to manage the “affairs of the corporation,” and director elections were to occur “annually at a meeting of the members of the corporation to be held without notice on the last Wednesday night of September each year.” Further, Article VIII stated that “[t]he by-laws of this corporation shall be made, altered, amended or rescinded by the board of directors of this corporation.”

The bylaws in effect during the relevant period were adopted by the Church membership on January 19, 1994 (“1994 Bylaws”). They specify the terms of membership in the congregation (eligibility; voting rights; procedure and grounds for termination). As to termination by exclusion the 1994 Bylaws state: “[T]he church may, after due notice and consideration, terminate the membership of any member at the next scheduled business meeting or within 30 days by the vote of a simple majority.” The 1994 Bylaws also provide that regular business meetings were to be held monthly, while special meetings could be held “by notifying the Moderator or Pastor and announcing it publiely at a regularly scheduled church service, one week in advance, if possible.” Further, “[a] majority vote of all active members present, unless otherwise stated herein, shall decide all matters,” and the bylaws may be amended “by a majority vote of all active members present, at the regular business meeting or a special called meeting after one week’s notice.”

Around August 2007, a small group within the Church comprised of then-pastor Eric Redmond, assistant/co-pastor Wesley Jamison, and Robert Gulick began discussions with members about the wisdom of, and Biblical justification for, changing the Church’s governance structure from congregation led to elder led. On January 16, 2008, after the regular business meeting adjourned, Redmond again raised with the members in attendance his proposal for an elder-led form of governance. The proposal met with strong opposition from several individuals, including Appellants Carson Roberts and Martha Weaver.

The parties dispute what occurred during subsequent conversations between Redmond and opposition members, and whether certain individuals relinquished their offices and membership voluntarily or were forced out. But the record reflects that between January 18, 2008, and February 20, 2008, Redmond spoke with, or attempted to speak with, several of the Appellants about what he considered to be grounds for removing them as members of the Church. He called two special meetings of the membership — one on January 20, 2008, and another on February 3, 2008 — to announce that Carson and Faye Roberts would no longer be in their leadership positions and to take action on “disciplinary matters” involving Carson Roberts, Ruby Sheffield, Martha Weaver and Wesley Weaver. At the next regular business meeting on February 20, 2008, a majority of the members attending voted to terminate those individuals’ membership. After the vote, Redmond directed the new non-members to leave the premises, which they eventually did, taking more than twenty sympathizers with them. Thereafter, the membership voted to amend the 1955 Articles and the 1994 Bylaws as necessary to transition from a congregational church to an elder-led church, and to take a final vote at a special meeting on March 2, 2008. Members also voted to reduce the number of Church trustees/corporate officers from five to three, make the membership of the Board of Directors and the Board of Elders identical, and revise the Bylaws accordingly; and add Robert Gu-lick to the Board of Elders (joining Redmond and Jamison).

Prior to the February 20 votes, the Church officers/directors included Faye Roberts, president and director; Ronald Ward, vice president and director; William Hayden, secretary/treasurer and director; Sam Register, director; Phillip Samuels, director; and Carson Roberts, deacon and moderator. On February 22, 2008, the Church filed an Annual Report with the Secretary of State reflecting the following officers and directors: Wesley Jamison, president and director; Eric Redmond, vice president and director; and Robert Gulick, secretary and director. The March 2, 2008, special meeting took place as scheduled, and there the Church membership adopted its Amended and Fully Restated Articles of Incorporation (“2008 Articles”) and completely revised bylaws (“2008 Bylaws”) establishing an elder-led form of governance.

The Complaint

Appellants’ Third Amended Complaint filed October 2, 2009, seeks to undo the membership terminations of Carson Roberts, Ruby Sheffield, Martha Weaver and Wesley Weaver, the election of Wesley Jamison, Eric Redmond and Robert Gulick to the reconstituted three-member Board of Directors, and the adoption of revised Articles of Incorporation and Bylaws. The overarching allegation is that the Church took these actions without following the procedures set forth in the 1955 Articles and 1994 Bylaws. But Appellants not only allege that the relevant meetings were held without proper notice, thereby nullifying the votes cast, they also allege, inter alia, that:

• Eric Redmond and Wesley Jamison were concerned that the Church’s congregation-led government was inconsistent with Biblical teachings.
• The two men “decided on a plan to supplant congregation governance with elder-governance” under which “three male elders would make all decisions” for the Church.
• Eric Redmond took offense to statements made after the January 16, 2008, regular meeting by members who “voiced opposition to ‘elder leadership’ ” and shortly thereafter, he called special meetings to oust from their leadership positions and membership in the Church those expressly opposed to the governance change.
• Eric Redmond, as pastor of the Church, was “to act as ‘the leader of worship, proclamation, administration, education, and pastoral ministries’ ” and “had no authority to conduct the civil governance of [the] Church.” Therefore, he was not authorized to call any meetings.
• The individuals removed from leadership positions and excluded from Church membership received no notice, “written or otherwise,” of “the charges against them or the nature of the action to be taken against them” at the meetings.
• The defendants “did not establish that those to be excluded [from membership] had become an offense to the church and to its good name by reason of immoral or unchristian conduct, or by persistent breach of his or her covenant vows, which [the] Church’s constitution and by-laws require for exclusion.”

Analysis

Appellants contend that the trial court erred in deeming this an ecclesiastical dispute over which the court has no jurisdiction. They argue that their breach of fiduciary duty claim is purely secular because the issue presented is whether the Church, in removing certain members, electing new directors, and changing its governing documents, contravened chapter 617, Florida Statutes. Because the Church is incorporated as a nonprofit entity under chapter 617, it must abide by the statutory provisions requiring certain corporate actions to be taken in accordance with the entity’s articles of incorporation or bylaws. This, Appellants claim, the Church did not do. Appellees posit that the dispute is about church governance, i.e., whether the Church should be congregation led or elder led. It is entirely an ecclesiastical matter, they argue, and courts have no jurisdiction to intervene.

We agree the underlying dispute concerns the Church’s form of governance, and the First Amendment prohibits civil courts from adjudicating such ecclesiastical matters. See Malicki v. Doe, 814 So.2d 347, 356 (Fla.2002) (“[T]he First Amendment provides churches with the ‘power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ ”) (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)); Malichi v. Archdiocese of Miami, 945 So.2d 526, 529 (Fla. 1st DCA 2006) (stating that the First Amendment “prevents secular courts from reviewing disputes requiring an analysis of ‘theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required ....’”) (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 733, 20 L.Ed. 666 (1871)). But the issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church.

“[W]hen a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy, the civil courts may adjudicate the dispute.” Se. Conf. Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So.2d 842, 844 (Fla. 4th DCA 2003) (citing Jones v. Wolf, 443 U.S. 595, 602-04, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979)). In Word of Life Ministry, Inc. v. Miller, 778 So.2d 360, 362 (Fla. 1st DCA 2001), we determined that a dispute between a corporate church and its members over corporate assets and propriety of corporate dissolution involved only neutral legal principles and therefore could be judicially resolved. There the church, a non-profit corporation, sued its ministers and bookkeeper to prevent dissolution of the corporation and distribution of its assets. The defendants had taken a series of actions the church challenged, including electing new directors, amending the church’s articles of incorporation, and voting to dissolve the corporation and distribute its assets. Id. at 363-64. We determined that the essential dispute was solely over who had the right to control church property, and that the case “implicate[d] neutral legal principles only,” specifically, that “[a] corporation must act in accordance with its articles of incorporation and duly adopted by-laws.” Id. at 362, 363. For that reason, we concluded, the court could resolve the dispute without violating the First Amendment. Id.

As in Word of Life, this case asks whether the Church, a corporate entity, complied with its articles of incorporation and bylaws in terminating corporate membership, electing directors, and amending corporate documents. Thus, it implicates the same neutral legal tenets. However, even where neutral law applies, secular courts must not “become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs.” Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). On this principle, Appellants’ case is distinguishable from Word of Life. First, the essential dispute in this case is not over property, as in Word of Life. Rather, the controversy is solely over how the Church should govern itself — an essentially religious matter. Cf. Milivojevich at 709 (determining that although the dispute, on its face, is about control of church property, “this case essentially involves not a church property, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals.”). Second, under the 1955 Articles, membership in the congregation automatically conveyed membership in the corporation. And the 1994 Bylaws, on which Appellants rely, detailed the procedure and grounds for terminating membership in the congregation. Consequently, any inquiry into whether the Church adhered to its bylaws in excluding members necessarily entangles the court in religious matters protected by the First Amendment. Word of Life presented a markedly different factual scenario. There “most members of the congregation were in legal contemplation strangers to the corporation,” 778 So.2d at 362, and in any event, expulsion of members from the congregation was not at issue. Thus, in Word of Life this court could review the corporation’s actions for compliance with the bylaws, without implicating church doctrine. Cf. Hemphill v. Zion Hope Primitive Baptist Church of Pensacola, Inc., 447 So.2d 976, 977 (Fla. 1st DCA 1984) (finding judicial resolution of church dispute permissible where no interpretation of church doctrine was necessary to determine if corporate church fired its pastor in accordance with articles and bylaws). Finally, it is evident from Appellants’ complaint and from the testimony taken by the trial court that exercising jurisdiction in this instance would be tantamount to “intervening on behalf of [a group] espousing particular doctrinal beliefs.” We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

For the foregoing reasons, we conclude the trial court correctly ruled that it lacked jurisdiction over the parties’ ecclesiastical dispute. Accordingly, we affirm the judgment on appeal.

AFFIRMED.

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

      . Plaintiffs are former members, officers and/or directors of the Church: Margaret A. Rosenberger; Margaret Smith; Martha Ann Weaver; Carson Roberts; Ruby Sheffield; Janice A. Nobles; Reva Phillips; Tinka Phillips; Jo Harris; Mary Alice Denton; Marietta Townsend; Janie Burnham; Faye Roberts; Jane Elholm.

      . Defendants are the First Baptist Church of Micanopy, Inc., Wesley Jamison, Eric M. Redmond and Hayden E. Norris. Norris is currently pastor of the Church.' Redmond and Jamison preceded him in that role; they are no longer members of the Church.

      . We review de novo the trial court’s decision that it lacks subject matter jurisdiction over the parties' dispute. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 350 (Fla. 1st DCA 2003).

      . Our 'decision here does not conflict with the supreme court’s decision in Epperson v. Myers, 58 So.2d 150 (Fla.1952). In Epperson, the challenged actions were taken at meetings called, held and attended only by a particular group of members without notice to or participation by the broader church membership. The supreme court held that the trial court properly asserted jurisdiction to address "fraud, collusion or arbitrary conduct” by a "rump faction.” Id. at 152. The instant case does not present similar facts. See also Umberger v. Johns, 363 So.2d 63, 65 (Fla. 1st DCA 1978) (relying on Epperson to reverse dismissal of complaint alleging that a church faction colluded to change church bylaws without adequate notice to church membership).


author: ALTENBERND, Judge.

text:
    MB PLAZA, LLC, a Florida Limited Liability Company, Appellant, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, Appellee.
    No. 2D11-852.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 2011.
    Rehearing Denied Oct. 28, 2011.

      David H. Charlip of Charlip Law Group, LLC, Aventura, for Appellant.
    William P. Keith and Sally Rogers Cully of Rumberger, Kirk & Caldwell, Tampa; and Joshua D. Lerner of Rumberger, Kirk & Caldwell, Miami, for Appellee.
   ALTENBERND, Judge.

MB Plaza, LLC, appeals a nonfinal order appointing a receiver in a pending foreclosure action. We affirm the trial court’s decision to appoint a receiver, but we reverse the order appointing the receiver to the extent that its content is far more extensive than that which could be justified by the presentations at the short hearing to appoint a receiver.

MB Plaza owns and operates a commercial shopping center with several tenants. It signed a promissory note that is currently held by Wells Fargo Bank. The note is secured by the real property associated with the shopping center. The mortgage contains an assignment of rents and a provision for the appointment of a receiver with “all of the usual powers and duties of receivers in similar cases” in the event of default. This foreclosure action was filed in May 2010, and Wells Fargo did not seek the appointment of a receiver until late December 2010.

The hearing on the motion for appointment of receiver occurred at the end of a uniform motion calendar. The trial court accommodated the parties with extra time, and the hearing apparently lasted about forty-five minutes. Although a longer evi-dentiary hearing undoubtedly would have produced a better transcript for appellate review, it is clear that the promissory note was in default and that MB Plaza had been collecting rent for many months without remitting the rents to the lender. With declines in property values, the property was no longer adequate security for the note, and MB Plaza did not have funds to pay the property taxes.

MB Plaza argues that it was essential for Wells Fargo to prove that MB Plaza was wasting the property before it could obtain a receivership in this context. In support of this argument, MB Plaza relies on a sentence in Seasons Partnership I v. Kraus-Anderson, Inc., 700 So.2d 60 (Fla. 2d DCA 1997). The sentence states: “The record reveals no equitable or legal reasons to employ this extraordinary remedy where there is no evidence that The Seasons is wasting the property and there are other methods to protect Kraus-Anderson’s security interest without depriving The Seasons of its right of possession.” Id. at 62. While we can appreciate MB Plaza’s argument, we believe it argues for a more restrictive interpretation of the sentence than this court intended.

This court applied the reasoning of Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 249 (1930), to the facts in Seasons Partnership in deciding that Kraus-Anderson had not established a basis for an appointment of a receiver. 700 So.2d at 61. Under the guidelines announced in Carolina Portland Cement, the appointment of a receiver is not a matter of right even if the mortgage so provides and contains an assignment of rents clause. See Carolina Portland Cement, 128 So. at 249. “In deciding whether to enforce a mortgage provision for the appointment of a receiver, the trial court must balance the mortgagor’s right to own and possess its property against the interests of the mortgagee in protecting its security in the property.” Seasons Partnership, 700 So.2d at 61 (citing Carolina Portland Cement, 99 Fla. 987, 128 So. 241).

In Seasons Partnership, the existing property manager was doing a good job and was, in fact, the person selected to be the receiver. Notably, rental income from the apartment complex was being properly applied. 700 So.2d at 61. The lender in Seasons Partnership needed to establish a justifiable basis for the appointment of a receiver. Waste would have provided a justifiable basis for the trial court to exercise its discretion by appointing a receiver in Seasons Partnership, but this court did not intend to make waste a condition precedent to such an appointment. Indeed, such a holding would have conflicted with the guidelines in Carolina Portland Cement.

Although we conclude that the trial court had the discretion in this case to appoint a receiver, we are concerned about the content of the order. This order is not a simple order comparable to the order published by The Florida Bar. See Guy Piers Coburn, Extraordinary Remedies, in Creditors’ and Debtors’ Practice in Florida, § 11.40, at 11-33-11-34 (Fla. Bar CLE 3d ed. 2007). Here, the order is nine pages long. It requires a bond of only $5000 while relieving the receiver of liability for any losses except those resulting from gross negligence, fraud, or intentional torts. The receiver is to be compensated at the rate of $150 per hour, with a maximum of $450 per month plus fees and expenses for various activities including the “marketing and sale” of the property. Nothing at the hearing or in the mortgage agreement would suggest that the receiver should have the power to market and sell this commercial property at this stage of the foreclosure proceeding.

Most significantly, the receiver is given the power to negotiate and enter into contracts affecting “any part or all of the Mortgaged Property” with no obvious requirement that the receiver obtain the consent or approval of MB Plaza or the court no matter how extensive the contract. It also allows the receiver to “nullify and/or immediately terminate” existing contracts “in the Receiver’s sole an [sic] absolute discretion” without oversight from the court or MB Plaza. It is troubling that the order appears to give the receiver more unsupervised power than even that given to a trustee in bankruptcy.

This order was not provided to the court or to MB Plaza until the end of the short hearing. The evidence and discussions at the hearing do not justify an order of this scope. MB Plaza sought rehearing concerning the content of the order, and the trial court denied rehearing. Simply stated, nothing in this record supports the notion that this order contains “all of the usual powers and duties” given to a receiver “in similar cases.” The powers and duties actually provided are not justified by the record. We conclude that it was an abuse of discretion to enter an order with these extensive provisions in the context of this case and this hearing.

On remand, if the parties cannot agree upon the content of the order, the trial court shall hold an evidentiary hearing and determine what powers and duties should reasonably be provided to this receiver.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and KELLY, JJ., Concur.

      . Although there may be instances in which the parties to a foreclosure could agree that a sale by receiver would be appropriate, a sale by a receiver is ordinarily improper and, even if authorized, should be carefully watched by the court. See, e.g., Shubh Hotels Boca, LLC v. Fed. Deposit Ins. Cotrp., 46 So.3d 163 (Fla. 4th DCA 2010) (quashing trial court order that allowed and approved a sale by the receiver before final judgment of foreclosure); Fugazy Travel Bureau, Inc. v. State, 188 So.2d 842, 844 (Fla. 4th DCA 1966) (recognizing that "there are instances in which a sale by receiver is expedient and proper,” but nonetheless reversing portion of order that authorized the sale of a promissory note by the receiver and cautioning that a "sale by a receiver should be carefully watched by the court”).

      . Wells Fargo did not draft this mortgage agreement. We are not aware of any Florida statute, rule, or case law that establish a receiver’s “usual powers and duties” in cases “similar’’ to this case. The mortgage agreement contains a section that purports to describe rights and authorities of a receiver or the lender in the event of a default. It is unlikely to be binding upon the trial court when the court exercises its discretion to appoint a receiver, especially to the extent that several of the powers described therein might contravene- Florida law if afforded to a receiver and the section creates few, if any, duties.


author: COHEN, J.

text:
    Frank WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2522.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Frank White appeals his conviction of second-degree murder with a firearm and attempted robbery. The only issue raised on appeal is whether the jury instruction on manslaughter by procurement was fundamental error. No error is assigned as to the attempted robbery conviction.

White and an accomplice, Trent Harris, were robbing individuals seeking to purchase drugs at a location well-known for drug sales. The victim, who apparently intended to purchase drugs, drove his vehicle to this location where he was accosted by White and Harris. During the course of the attempted robbery, Harris shot the victim in the neck and back, killing him.

Based on White’s role in the offense, the trial court instructed the jury, without objection, on manslaughter by procurement as a lesser included offense to the first-degree murder charge. White argues that the instruction was erroneous and constituted fundamental error.

In Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), we examined manslaughter by act in the context of a double jeopardy challenge. In dicta, we stated, “The words ‘act’ and ‘procurement’ obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter.” Id. at 641. While defendants charged with voluntary manslaughter, as in Barton, have argued that it required a showing of an intent to kill, defendants charged with first or second-degree murder, seeking to give the jury the option of a lesser included offense, have argued the opposite: that intent to kill was not an element of the offense.

In Montgomery v. State, 70 So.3d 603, 606-07 (Fla. 1st DCA 2009), the First District ruled that manslaughter by act “requires only an intentional unlawful act, rather than an intent to kill[,]” and certified conflict with Barton. The supreme court accepted jurisdiction and, in State v. Montgomery, 39 So.3d 252, 256 (Fla.2010), ruled that under Florida law, the crime of manslaughter by act does not require proof of an intent to kill. Critical to this analysis was the court’s observation that:

[I]mpos[ing] such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.

Id. However, Montgomery did not address manslaughter by procurement.

Section 782.07(1), Florida Statutes (2010), defines manslaughter as follows:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

At the time of White’s trial, the standard jury instructions on manslaughter by procurement provided in relevant part:

To prove the crime of [mjanslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.
2.b. (Defendant^] intentionally procured the death of (victim).
To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Fla. Std. Jury Instr. (Crim.) 7.7. White suggests that instruction suffers from the same defect found in Montgomery. We agree.

The standard jury instruction for manslaughter by procurement required the State to prove that White procured the death of the victim. While we agree with the State’s position that procurement requires an intentional act, as instructed, it is the victim’s death being procured. The average juror would likely interpret the instruction as requiring a finding that, in advance of the actual killing, the defendant intentionally persuaded, induced, prevailed upon, or caused a person to kill. The purpose of the procurement was to effect the death of another. As was the case in Montgomery, this instruction blurs the distinction between manslaughter by procurement and premeditated first-degree murder, and imposes a more stringent finding of intent than upon that of second-degree murder. In Montgomery, the supreme court found “the relevant intent is the intent to commit an act which caused death[.]” 39 So.3d at 257. We agree with White that what is procured under manslaughter by procurement is an act that results in the victim’s death. That was not what the jury was asked to determine. Instead, the jury was asked to decide whether White procured the death of the victim, in effect, requiring the jury find that White intended the victim’s death. Consequently, we feel bound by the analysis in Montgomery to find that, despite the lack of a contemporaneous objection, the error was fundamental.

AFFIRMED IN PART, REVERSED IN PART; and REMANDED for a new trial on the second-degree murder charge.

ORFINGER, C.J., and JACOBUS, J„ concur.

      . White was originally charged with first-degree murder with a firearm, attempted robbery with a firearm, robbery with a firearm, and possession of a firearm by a minor.

      . The trial court added "or his principal” to the instruction.

      . We are aware that in April 2010, the Florida Supreme Court authorized, on an interim basis, the publication and use of an amended jury instruction on manslaughter by procurement. In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So.3d 853 (Fla.2010), reh'g denied (July 22, 2010). The relevant instruction now reads: "2.b. (Defendant) procured the death of (victim).” Id. at 854. The supreme court does not warrant the correctness of standard jury instructions.


author: ORFINGER, C.J.

text:
    Ginnifer GEE, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, etc., Appellee.
    No. 5D10-1687.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 2011.

      Enrique Nieves, III, of Ice Legal, P.A., Royal Palm Beach, for Appellant.
    Andrea Shelowitz and Jesse Davidson, of Gladstone Law Group, P.A., and Ronald M. Gaché, of Shapiro, Fishman & Gaché, LLP, Boca Raton, for Appellee.
   ORFINGER, C.J.

Ginnifer Gee appeals from a final summary judgment of foreclosure entered in favor of U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust 2005-10 (“U.S. Bank”). Ms. Gee argues, among other things, that (1) U.S. Bank lacked standing to bring the foreclosure action, and (2) the summary judgment was entered on grounds that were not raised in the summary judgment motion. We reverse the summary judgment.

U.S. Bank filed a complaint against Ms. Gee seeking to reestablish a lost note and mortgage, reform the legal description contained in the mortgage and the deed by which Ms. Gee acquired title to the mortgaged property, and then to foreclose the reestablished and reformed note and mortgage. U.S. Bank’s complaint alleged that Ms. Gee executed and delivered a promissory note and mortgage (collectively, “the Mortgage”) to Advent Mortgage, LLC, which, in turn, assigned the Mortgage to Option One Mortgage Corporation. American Home Mortgage Servicing, Inc., purporting to act as successor in interest to Option One, then assigned the Mortgage to U.S. Bank, and U.S. Bank asserted that the Mortgage was in default. Ms. Gee, acting pro se, filed an answer, generally denying U.S. Bank’s allegations.

U.S. Bank subsequently filed a motion for summary judgment of foreclosure. The motion was silent regarding the reestablishment and reformation claims. In support of U.S. Bank’s motion, an employee of American Home, now purporting to act as U.S. Bank’s servicing agent, filed an affidavit, averring that the complaint’s allegations were true based on her knowledge as custodian of U.S. Bank’s business records, that U.S. Bank owned and held the Mortgage, and that Ms. Gee defaulted under the Mortgage by failing to make payments as due. Neither the motion nor the affidavit made mention of the lost note, the lost mortgage, or the claim for reformation of the deed and mortgage. To the contrary, the summary judgment motion stated that “the original promissory note, mortgage and assignment of mortgage would be filed on or before the hearing.” After a hearing, the court entered a summary final judgment of foreclosure, which reestablished the lost Mortgage, reformed the legal description contained in the mortgage and the warranty deed, and foreclosed the reestablished and reformed Mortgage. This appeal followed.

This Court reviews an order granting summary judgment de novo. See The Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006). Summary judgment is appropriate only “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The court may consider “affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” on which the parties rely. Fla. R. Civ. P. 1.510(c). But in doing so, the court must draw “every possible inference” in favor of the non-moving party. Dreggors v. Wausau Ins. Co., 995 So.2d 547, 549 (Fla. 5th DCA 2008); Edwards v. Simon, 961 So.2d 973, 974 (Fla. 4th DCA 2007).

Ms. Gee first challenges U.S. Bank’s standing to bring the action. The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). Thus, “[t]he party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes (2010). State St. Bank & Trust Co. v. Lord, 851 So.2d 790, 791 (Fla. 4th DCA 2003). If the note does not name the plaintiff as the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. See Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So.2d 708 (Fla. 5th DCA 2006).

Here, the record does not contain the original Mortgage. To prove its ownership, U.S. Bank filed a copy of the Mortgage as well as two assignments. The first assignment transferred the Mortgage from Advent Mortgage, the original mortgagee, to Option One. The second assignment purported to transfer the mortgage from American Home, as successor in interest of Option One, to U.S. Bank. However, and significant to our consideration, U.S. Bank provided nothing to demonstrate how American Home came to be the successor in interest to Option One.

Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid foreclosure based on the absence of an endorsement to [it].” But that argument flies in the face of well-established precedent requiring the party seeking foreclosure to present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action. See Verizzo, 28 So.3d at 978; Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank, as the plaintiff, was required to prove. See Lizio, 36 So.3d at 929; Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of ownership to prove its status as holder of note); see also Khan v. Bank of Am., N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had standing to foreclose mortgage as matter of law where copy of note attached to amended complaint bore endorsement assigning note to another bank); Verizzo, 28 So.3d at 977 (finding genuine issue of fact as to whether bank owned and held note where record did not reflect assignment or endorsement of note to bank). Cf. Isaac v. Deutsche Bank Nat’l Trust Co., 74 So.3d 495, 2011 WL 1261142 (Fla. 4th DCA 2011) (holding that assignee of promissory note and mortgage adequately established its ownership of note and mortgage, as necessary to confer standing to bring foreclosure action, where assignee filed original note and mortgage, along with allonge payable to bearer, and affidavit from representative of successor in interest to previous assign-ee); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010) (holding that written assignment of promissory note and mortgage from nominee of original lender to bank was sufficient to confer upon bank authority to foreclose mortgage, even though nominee had no beneficial interest in note and note was not endorsed by original lender; mortgage gave nominee explicit power to enforce note by foreclosing note and nominee assigned that right to bank).

Ms. Gee also asserts that the trial court improperly entered summary judgment on the reestablishment and reformation claims when these claims were not raised in U.S. Bank’s summary judgment motion. We agree. A motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued....” Fla. R. Civ. P. 1.510(c). The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the mov-ant. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Bloch v. Berkshire Ins. Co., 585 So.2d 1137, 1138 (Fla. 3d DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the nonmoving party to be prepared for the issues that will be argued at the summary judgment hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So.2d 283, 284 (Fla. 4th DCA 1995). “It is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006).

As Ms. Gee contends, U.S. Bank’s summary judgment motion made no mention of its claim to reestablish the lost Mortgage and identified no evidence to support its claim that these documents were lost. Instead, the motion declared the opposite — that “[t]he original promissory note, mortgage and assignment of mortgage will be filed on or before the hearing.” Yet, the court considered a lost documents affidavit at the summary judgment hearing and reestablished the Mortgage in the final judgment. Similarly, the summary judgment motion made no mention of U.S. Bank’s claim to reform the legal description in the deed and mortgage, nor was the issue discussed at the summary judgment hearing. Still, the court reformed the original mortgage and deed, and modified the legal description.

Because U.S. Bank’s motion did not address any facts or law pertaining to its entitlement to summary judgment on its claims to reestablish the lost instruments and reform the deed and mortgage, the trial court erred in entering summary judgment on these grounds. By failing to state with particularity the grounds upon which its summary judgment motion was based, U.S. Bank failed to provide Ms. Gee with proper notice of the separate issues to be resolved and why U.S. Bank was entitled to summary judgment. See Locke v. State Farm Fire & Cas. Co., 509 So.2d 1375, 1376-77 (Fla. 1st DCA 1987) (holding that summary judgment motion was insufficient to place non-moving party on notice of issues to be argued at hearing as motion merely stated that no material issues existed and movant was entitled to judgment); see also State Farm Mut. Auto. Ins. Co. v. Mashburn, 15 So.3d 701, 706 (Fla. 1st DCA 2009) (reversing summary judgment entered against insurer based on notice issue, which was not raised with particularity in summary judgment motion; raising issue in attached affidavits was insúfla-cient); Deluxe Motel, Inc. v. Patel, 727 So.2d 299, 301 (Fla. 5th DCA 1999) (reversing summary judgment that was based on arguments made at hearing but not in motion); Sunshine Wireless Co., 654 So.2d at 284 (reversing summary judgment for insufficient notice of issues to be addressed and noting that particularity rule was designed to prevent “ambush” by allowing nonmoving party to be prepared for issues that will be argued at summary judgment hearing); Boucher v. First Cmty. Bank of Orange City, 626 So.2d 979, 982 (Fla. 5th DCA 1993) (reiterating that on summary judgment, court is limited to grounds raised in motion).

For these reasons, we reverse the final summary judgment of foreclosure entered in favor of U.S. Bank, and remand for further proceedings.

REVERSED and REMANDED.

COHEN, J. and, RUDISILL, M.J., Associate Judge, concur.

      . Copies of the relevant instruments were attached to the complaint or filed with the trial court prior to the summary judgment hearing.

      . U.S. Bank’s appellate counsel did not represent it below.

      . For these reasons, U.S. Bank's reliance on Greeley v. De Cottes, 24 Fla. 475, 487, 5 So. 239, 242 (Fla.1888) ("The rule that courts of equity have authority to reform all deeds, mortgages, contracts, and all similar instruments, so as to make them conform to the true intent of the parties thereto, is well established.”), disapproved of on other grounds by Fisher v. Villamil, 62 Fla. 472, 56 So. 559 (Fla.1911); MCZ/Centrum Flamingo I, LLC v. AIMCO/Bethesda Holdings, Inc., 988 So.2d 89 (Fla. 3d DCA 2008) (recognizing that equitable lien may arise from written contract that evidences intention to charge property with debt or obligation); and Blumin v. Ellis, 186 So.2d 286, 294 (Fla. 2d DCA 1966) ("An equitable lien or mortgage will arise from a written contract which shows an intention to charge or mortgage some particular property with a debt or obligation.”); is misplaced. The fact that Ms. Gee made payments on the Mortgage for three years did not discharge U.S. Bank of its duty to prove that it held and owned the Mortgage.

      . As U.S. Bank argues, equity may reform an instrument to prevent manifest injustice and to express the intent of the parties. Spear v. MacDonald, 67 So.2d 630, 635 (Fla.1953); Belitz v. Riebe, 495 So.2d 775, 776 (Fla. 5th DCA 1986); Nielsen v. Paneil, Inc., 202 So.2d 894, 895 (Fla. 4th DCA 1967). Mortgage foreclosures are equitable proceedings in which opportunities to try to reform instruments to reflect their true intent should be permitted if not encouraged. Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000); Trs. of C.I. Mortg. Group v. City Hous. Corp., 422 So.2d 323, 324 (Fla. 4th DCA 1982). Notwithstanding, U.S. Bank was still required to state with particularity that its summary judgment motion was based on this ground. The record is clear that Ms. Gee denied this count te her answer, and U.S. Bank filed no motion or affidavit and presented no argument concerning this issue. Yet, the court in its final summary judgment, reformed the deed and mortgage by changing the legal description, which was error. Further, U.S. Bank compounded the error by failing to join the original grantor of the deed that it wished to have reformed. The purpose of reformation is to make an instrument accurately express the true intention of the parties at the time of its execution. Providence Square Ass'n v. Biancardi, 507 So.2d 1366 (Fla.1987). Consequently, the grantor of the deed conveying title to Ms. Gee was a necessary party to U.S. Bank’s claim to reform the deed. Chanrai Invs., Inc. v. Clement, 566 So.2d 838 (Fla. 5th DCA 1990).


author: DAVIS, Judge.

text:
    Tyree GLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3767.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      Charles E. Lykes, Jr., Clearwater, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Elba Caridad Martin-Schomaker, and Anne Sheer Weiner, Assistant Attorneys General, Tampa, for Appellee.
   DAVIS, Judge.

Tyree Gland challenges his convictions and sentences for second-degree murder and delinquent in possession of a firearm. Mr. Gland was charged and convicted based on a series of events that began with fighting between two groups of young people in several locations in south St. Peters-burg and ended after a drive-by shooting resulted in the death of Deandre Brown. Mr. Gland and Raymond Adams were charged with second-degree murder, and Mr. Gland was identified as the shooter. On appeal, Mr. Gland raises four issues. We find no merit in any of the issues raised by Mr. Gland and affirm. We write, however, to explain our reasoning regarding two of the issues.

Approximately a year after his arrest, while he was in custody awaiting trial, Mr. Gland had a fellow inmate tattoo his upper left shoulder with an inscription that read: “WANTED Det. Gibson $100,000.” Detective Gibson was the case agent assigned to the shooting investigation. The State sought to have the jury advised of this tattoo, arguing that it was evidence of Mr. Gland’s consciousness of guilt. Mr. Gland filed a motion in limine seeking to exclude the picture of the tattoo and any testimony related to it from trial. He argued that the tattoo was being used more as character evidence than evidence of consciousness of guilt. The trial court denied the motion, and the jury was shown the picture. In closing argument, the State argued to the jury as follows:

No prior contact with this detective. He gets arrested. Sometime while he’s in jail, this appears on his arm. $100,000 reward for Detective Gibson. Consciousness of guilt. Arrogance about his guilt. Is that — is that the kind of person that something like “I’m gonna kill one of them f-n-,” would be rolling out his lips?

Defense counsel objected, arguing that this was the very character argument that he had warned of in his motion. The trial court sustained the objection; however, there was no request for a curative instruction or a mistrial.

On appeal, Mr. Gland argues that the picture of the tattoo coupled with the State’s closing argument amounted to an improper use of the tattoo as evidence of bad character. We agree that the picture of the tattoo should not have been admitted. However, even considering that error in conjunction with the State’s objectionable statements in its closing, we are satisfied beyond a reasonable doubt that this error did not affect the verdict and instead was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The second issue that we write to address involved the jury instructions. At trial, the court read the standard jury instruction on manslaughter as a lesser-included offense of second-degree murder. In instructing the jury, the trial court gave both the manslaughter by act instruction and the manslaughter by culpable negligence instruction. Initially, we note that Mr. Gland is correct that pursuant to State v. Montgomery, 39 So.3d 252, 259 (Fla.2010), it was error for the trial court to give the instruction on manslaughter by intentional act which included the then-standard language requiring the State to prove that a defendant had an intent to kill the victim. However, the error was not fundamental in Mr. Gland’s case because the trial court also read the standard instruction on manslaughter by culpable negligence, an alternative way of proving the offense of manslaughter. That instruction contains no requirement that the jury find an intent to kill the victim. Where the manslaughter by culpable negligence instruction applies and is properly given, the giving of the erroneous standard instruction on manslaughter by intentional act is not fundamental error. Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010); see also Haygood v. State, 54 So.3d 1035 (Fla. 2d DCA) (certifying a question of great public importance seeking to determine if Bams-Dias applies even where the facts do not support a manslaughter by culpable negligence instruction), review granted, 61 So.3d 410 (Fla.2011).

Based on the facts presented in the instant case, the evidence supports Mr. Gland’s conviction for second-degree murder but also could reasonably have supported a verdict of manslaughter by culpable negligence. Cf. Haygood, 54 So.3d at 1038 (Altenbernd, J., specially concurring in part; dissenting in part) (“This is a case in which the evidence unquestionably supports the jury’s verdict [of] second-degree murder. At the same time, the evidence would also have permitted the jury to return a verdict of manslaughter by act if the jury had received the correct instruction. I am hard pressed to believe that any reasonable jury would have found that the evidence in this case supported a theory of manslaughter by culpable negligence.”). Because the jury was properly provided the option of convicting Mr. Gland on the lesser-included offense of manslaughter by culpable negligence if it had found that the State had failed to prove the elements of second-degree murder, the error in the manslaughter by act instruction was not fundamental. See Barros-Dias, 41 So.3d at 372.

Affirmed.

ALTENBERND and WALLACE, JJ, Concur.

      . The instruction given by the trial court was the standard jury instruction at issue in State v. Montgomery, 39 So.3d 252 (Fla.2010).


author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. Stephen Dannell GARDNER, Jr., Appellee.
    No. 2D10-1776.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

Stephen Dannell Gardner, Jr., was charged with resisting arrest without violence and possession of cocaine with intent to sell, and in this appeal, the State of Florida challenges an order granting Gardner’s motion to suppress the cocaine found in his car. We conclude that the trial court erred in granting the motion to suppress because there was probable cause to search the car, and we therefore reverse.

At the hearing on Gardner’s motion to suppress, Detective Joseph Zagar testified that he met with Pierre Hodges on August 11, 2009. Hodges stated that at about 4 p.m. on that day, Gardner and another man surrounded him, and the other suspect pointed a gun at him and tried to shoot him. Although the victim tried to knock the gun away, it fired and the bullet hit the ground. Both Gardner and the shooter then got into a red Chrysler Concorde and left the area. Gardner, with whom Detective Zagar was familiar, drove the getaway car, and Hodges did not state that the shooter discarded the gun before getting into Gardner’s car. Another person in the area heard the gunshot, saw Gardner in the area, and saw him get in his car and leave.

When Detective Zagar was leaving the victim’s home about two hours later, he saw the red Chrysler Concorde and followed it to a parking lot. When the car stopped, Gardner was the only person in the car and he was the registered owner of the car. Detective Zagar told Gardner that he was going to be arrested for attempted murder and Gardner, who was sitting in the driver’s seat at the time, resisted being placed under arrest.

After police officers were able to place Gardner under arrest, they had a K-9 walk around his car. The dog alerted to the presence of drugs in the trunk of the car and, although officers searched the passenger area of the car, they could not search the trunk because it was locked. The car was placed in a secure area at the police department, and Detective Zagar searched the car the following morning and found cocaine in a cigar tube in the pocket of the driver’s side door.

In its order, the trial court cited to Jaimes v. State, 862 So.2d 833, 836 (Fla. 2d DCA 2003), in ruling as follows:

Absent a search warrant, there are three valid means by which law enforcement may search a vehicle: (1) incident to a valid arrest; (2) under the “automobile exception” to the warrant requirement which requires exigent circumstances coupled with probable cause; and (3) when a vehicle has been impounded, as part of a reasonable inventory search following standardized procedure.

(Citations omitted.)

The State did not argue at the suppression hearing that police could search the vehicle pursuant to a recent arrest, and the trial court ruled that, because the other two circumstances did not apply, Detective Zagar’s search of the vehicle was unlawful.

Regarding the third ground justifying a warrantless search of an automobile, we agree with the trial court that the search was not a reasonable inventory search where the State did not establish that police complied with standardized criteria. See Patty v. State, 768 So.2d 1126, 1127 (Fla. 2d DCA 2000).

However, as to the first two grounds noted above which would justify a warrant-less search of an automobile, in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the Supreme Court clarified these two grounds, holding that “[pjolice may search a vehicle incident to a recent occupant’s arrest only if the arres-tee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” As to the first ground, as noted above the State did not argue that the search was valid pursuant to a recent arrest and the record shows that Gardner was clearly not within reaching distance of the automobile at the time of the search.

Nevertheless, turning to the second ground justifying a warrantless search, we conclude that Detective Zagar did have a reasonable belief that Gardner’s car contained evidence of the offense of arrest, and therefore, the trial court erred in suppressing evidence found during the search. See State v. Nowak, 1 So.3d 215, 219 (Fla. 5th DCA 2008) (“A determination of whether certain facts give rise to probable cause is treated as a question of law and reviewed de novo.”).

The trial court mistakenly believed that even when probable cause exists, exigent circumstances are required before police can search a vehicle. The trial court held that when the vehicle was impounded, “all exigency disappeared as the only people with access to the vehicle was law enforcement.” In Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982), the Supreme Court noted that “when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrant-less search of the vehicle, even after it has been impounded and is in police custody.”

In State v. Green, 943 So.2d 1004, 1006 n. 1 (Fla. 2d DCA 2006), this court noted that exigent circumstances are no longer “required in order to apply the automobile exception to the warrant requirement.” Therefore, the issue is whether police had probable cause to search Gardner’s car, irrespective of the fact that the search was conducted at the police station.

We agree with the trial court that the K-9 alert did not provide probable cause to search, because the State did not meet the requirements outlined in Harris v. State, 71 So.3d 756 (Fla.2011). However, we conclude that regardless of the K-9 alert, police had probable cause to search the car based on the attempted shooting that occurred two hours earlier.

In Chambers v. Maroney, 399 U.S. 42, 44, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), two men armed with guns robbed a gas station at night. Two witnesses saw a blue compact station wagon circling the block near the gas station and, about the same time that the gas station was robbed, they saw a car speed away from a parking lot near the station with four men in the car. Id. Within an hour, police stopped a light blue compact station wagon with four men about two miles from the gas station, and the car was taken to the police station and searched and two guns were found. Id. The Supreme Court held that police had probable cause to search the blue compact station wagon for guns and stolen money because it was linked to the robbery. Id. at 47, 90 S.Ct. 1975.

Similarly, in Beck v. State, 181 So.2d 659, 660 (Fla. 2d DCA 1966), a liquor store was robbed at gunpoint and the robber was seen leaving the area in a tan Lincoln Continental. Two witnesses followed the car and saw it park in an athletic club parking lot, and the witnesses later showed a police officer where the car was parked. Id. at 661. After observing a paper bag on the floor of the passenger’s side and a nickel plated revolver on the front seat, police searched the car. Id. This court held that based on all the facts and circumstances, police had probable cause to search the car and that the appellant’s motion to suppress was properly denied. Id. at 662; see State v. Jackson, 368 So.2d 66, 69 (Fla. 3d DCA 1979) (holding that police clearly had probable cause to search car where two men robbed a grocery store and drove to apartment complex twenty miles away, the robbery victims followed them and called police, and police arrived and searched the car); see also Ruiz v. State, 743 So.2d 581, 582 (Fla. 4th DCA 1999) (concluding that police had probable cause to seize car where someone fired a shotgun from the car on the interstate).

In the present case, Detective Zagar had probable cause to search Gardner’s car for evidence related to the shooting. Even though the person who carried the gun was not in the car when it was stopped, according to the victim, Gardner was working with the shooter during the incident and both men left the scene in Gardner’s car. Further, the shooting occurred only two hours before the car was stopped. See Nowak, 1 So.3d at 219 (holding that police had probable cause to search car because “it was simply a practical, common-sense conclusion that evidence of No-wak’s planning and plan would likely be found in the vehicle that brought her to the encounter” with the victim where the evidence showed that Nowak drove from Texas to accost the victim).

Accordingly, we reverse the order granting the motion to suppress. Police could permissibly search the car because there was probable cause to believe that evidence relating to the shooting would be found in the car. We remand this case for proceedings consistent with this opinion.

Reversed and remanded.

WALLACE, J„ Concurs.

VILLANTI, J., Concurs in result only.

      . Hodges identified Gardner by a nickname during his first interview with Detective Zagar and later identified him in a photopack before Gardner’s car was stopped. After the car was stopped and Gardner was placed under arrest, Hodges identified him at the scene.