author: VAN NORTWICK, J.

text:
    D.K.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5084.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

D.K.D., a juvenile, appeals his adjudication of delinquency for giving a false name or identification to a law enforcement officer in violation of section 901.36(1), Florida Statutes (2011). Appellant argues that the trial court erroneously denied his motion to dismiss because section 901.36(1) requires arrest or lawful detention as a condition precedent to a violation of the statute and he was not arrested or lawfully detained at the time he gave a false name to law enforcement. We agree and reverse.

Deputy Davis Goodwin testified that, while on duty one night, he saw appellant dash across a parking lot as though someone were chasing him. Appellant ran to a trailer used for storage of fireworks and peeked around the corner. Officer Goodwin and another officer (Corporal Ravey) approached, and appellant moved towards them. Appellant was asked what he was doing by the trailer at 2:30 a.m., and he offered that he was returning home from a friend’s house. Ascertaining that appellant was a juvenile, the officers asked his name explaining they wanted to contact a parent to be sure he was not a runaway. Appellant advised that his mother was out of town and there was no way to contact her but that he could show police his residence which was nearby. Appellant said his name was “Drey Slack.” He then gave his mother’s name, and when police looked up an address for the mother’s name, he advised they had since moved. The officers put appellant in a patrol car and drove in the direction of the address he gave as a current one. Before arriving, however, appellant admitted that he gave an incorrect address. Further, he later admitted that his name was not “Drey Slack,” and he gave his correct name. He was then arrested.

Appellant was charged with giving a false name or identification to a law enforcement officer in violation of section 901.36(1). At the hearing, at the close of the State’s case appellant moved for a judgment of dismissal on the ground that the statute required the State to prove that appellant had been lawfully arrested or detained by a law enforcement officer when he gave a false name or otherwise falsely identified himself to a law enforcement officer. The trial court found that appellant may have provided a false name to the officer during a consensual encounter, but the encounter was elevated to a lawful detention at some point. The trial court therefore denied dismissal of the charge, noting section 901.36(1) is a broad statute; found appellant guilty; and adjudicated him delinquent.

Section 901.36(1) provides, in pertinent part:

It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer....

By the specific terms of the statute the giving of false identification must occur after an arrest or lawful detention has commenced in order to constitute a violation of law. A criminal statute must be strictly construed and, where words are susceptible of more than one meaning, the statute must be construed most favorably to the accused. See Perkins v. State, 576 So.2d 1310 (Fla.1991). Accordingly, the trial court erred in broadly construing the statute to encompass appellant’s conduct during a consensual encounter.

In Jackson v. State, 1 So.3d 273 (Fla. 1st DCA 2009), we held that giving a false name to a law enforcement officer is not a crime under section 901.36(1) unless it occurs during a lawful detention or following arrest. The record before us does not refute appellant’s claim that he gave the false name during a consensual encounter. Corporal Ravey testified that they approached appellant merely to ask him some questions. The record is undisputed that the officers determined it was not appropriate to arrest appellant and decided to take him home for his own health and safety.

We reject the State’s argument that Jackson is distinguishable on the ground that the encounter between appellant and law enforcement was not consensual where the officer stopped appellant based on a well-founded suspicion of criminal activity. There is no basis in the record before us for finding that the officers had a well-founded suspicion that specific criminal activity was occurring. According to the officers’ testimony, there was a possibility that appellant was going to try to break in the trailer, and they had problems with graffiti on the backside of that building for months. The officer also testified, however, that he was not sure whether appellant intended to commit a burglary or was merely looking for someone. The officers conceded that there were no 911 calls regarding the vicinity and no BOLO matching appellant’s description. From the record, we know only that the officer had a mere suspicion of something, and they had only vague concern of criminal activity because of the juvenile’s presence at 2:30 a.m. Their primary suspicion was that appellant may be a runaway. Even assuming that the consensual encounter became a detention, it cannot be construed as a lawful one because there was no well-founded suspicion of any criminal activity.

Accordingly, we reverse appellant’s adjudication of delinquency and vacate the corresponding disposition. The other issues on appeal are rendered moot by this disposition.

ROBERTS and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: GILLESPIE, KENNETH L., Associate Judge.

license: Public Domain

text:
    Richard ALTHOUSE, Appellant, v. PALM BEACH COUNTY SHERIFF’S OFFICE, Appellee.
    No. 4D10-2221.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Richard Clyde Aithouse, Palm Beach Gardens, pro se.
    Glenn S. Cameron of Cameron, Davis, Gonzalez & Marroney, P.A., West Palm Beach, for appellee.
   GILLESPIE, KENNETH L., Associate Judge.

Appellant, Richard Aithouse (hereinafter “Aithouse”), appeals the lower court’s order denying his writ of mandamus complaint. The complaint sought to compel the Sheriff of Palm Beach County (hereinafter “Sheriff’) to produce public records pertaining to the recruitment and use of confidential informants. Aithouse contends that he is entitled to litigation costs reasonably incurred as a result of filing his complaint to force the Sheriff to comply with his public records request. We concur with Aithouse, reverse and remand to the lower court with directions to set an evidentiary hearing to determine if the costs requested by Aithouse were reasonably incurred and, if so, award those costs to Aithouse.

FACTS

On or about December 9, 2009, Aithouse made a written public records request to the Sheriff pursuant to section 119, Florida Statutes (2009), requesting rules, regulations, operating procedures and policies regarding the recruitment and use of confidential informants. In response, the Sheriffs Central Records Department provided Aithouse a written response indicating that his request for such information was exempt from public disclosure.

Consequently, on December 31, 2009, Aithouse filed a complaint for alternative writ of mandamus order to show cause seeking to compel production of the requested public records. The trial court issued an order to show cause to the Sheriff, having concluded that Althouse’s complaint showed a prima facie case for relief. Upon receipt of the court’s order to show cause, the Sheriff responded that its Central Records Department “failed to adequately respond to” Althouse’s request. By January 19, 2010, the Sheriff complied with Althouse’s public records request by providing him with the requested public records which were redacted in part pursuant to subsection 119.071(2)(d), Florida Statutes (2009).

Notably, counsel for the Sheriff, in a cover letter sent to Aithouse, “apologize[d] for the inadequate response that you [Alt-house] were provided by the Sheriffs Central Record department” and “agreefd] that the response by the Sheriff was not only inadequate but also incorrect with respect to the exemptions which apply to your particular request.” Also, the Sheriff offered to pay Althouse’s cost in filing the petition and perfecting service of process. Notwithstanding the Sheriffs production of the public records, Aithouse disputed the redactions made by the Sheriff, and argued that he was entitled to costs as a result of filing suit to enforce the public record laws despite the Sheriff’s subsequent compliance. In a supplemental response to the order to show cause, the Sheriff provided the trial court with un-redacted copies of the public records for an in camera inspection in order to examine the validity of the redactions. The trial court set a hearing, following which it entered an order denying issuance of a writ.

Although Althouse had to file suit in order to compel production of the public records by the Sheriff, the trial court “[found] that the PBCSO has complied with the Public Request of Plaintiff” and sustained the Sheriffs redactions. However, contrary to the above finding, the trial court found that Althouse was entitled to reimbursement for the ninety ($90) dollars he expended on service of process through the Sheriff, but concluded that Althouse was not entitled to reimbursement for the cost of filing the action, because “when PBCSO contacted the Clerk’s Office to determine what was owed, it was notified that Plaintiff had paid no fees for the filing of the compliant due to his claimed indigency and that no fees were owed to the Clerk.” Following the trial court’s ruling, Althouse moved for rehearing asserting that he had “incurred costs other than the filing fee and service of process, including photocopies, word processing copies, and the use of Westlaw legal research,” which was summarily denied by the trial court. This appeal followed.

PUBLIC RECORD LAW

Subsection 119.01(1), Florida Statutes (2009), provides “[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to the public records is a duty of each agency.” To encourage compliance with that policy, the legislature provided a sanction;

If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall access and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.

§ 119.12, Fla. Stat. (2009) (emphasis added); see also New York Times Co. v. PHH Mental Health Servs., Inc. 616 So.2d 27, 29 (Fla.1993) (“Section 119.12(1) is designed to encourage public agencies to voluntarily comply with the requirements of chapter 119-If public agencies are required to pay attorney’s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents.”).

Whether a person is entitled to fees and costs under section 119.12, is a matter of law reviewed de novo and, per the statute, depends on whether the agency’s refusal was lawful. Instructive in this case is Knight Ridder Inc. v. Dade Aviation Consultants, 808 So.2d 1268, 1270 (Fla. 3d DCA 2002), which provides that “[ejntitlement to fees under the statute is based upon whether the public entity had a ‘reasonable’ or ‘good faith’ belief in the soundness of its position in refusing production.”

In the instant case, it is clear from the record that the Sheriff did not provide evidence of a reasonable or good faith belief in the soundness of his refusal of production to Althouse. Noteworthy is the Sheriffs acknowledgement, which came only after Althouse filed his civil complaint: counsel for the Sheriff wrote Alt-house admitting that the response received from his Central Records department was “inadequate” and “incorrect.” Furthermore, this Court is not persuaded by the Sheriffs position that Althouse was not the prevailing party below and, as such, is not entitled to costs. The statute makes no mention that the Petitioner must be the prevailing party to be awarded costs. Rather, the courts task is determining whether a party had to file a civil action against an agency to compel compliance of public records; if so, if no reasonable or good faith belief existed to withhold such documents, then the court shall assess reasonable costs of enforcement.

Considering the intent of Chapter 119, which has its roots deeply embedded in the prevention of government agencies restricting access to public records without a valid reason, see Brunson v. Dade Cnty. Sch. Bd., 525 So.2d 933, 934 (Fla. 3d DCA 1988), disapproved on other grounds, PHH Mental Health Servs., Inc., 616 So.2d 27; News & Sun-Sentinel Co. v. Palm Beach Cnty., 517 So.2d 743, 744 (Fla. 4th DCA 1987), disapproved on other grounds, PHH Mental Health Servs., Inc., 616 So.2d 27, this Court finds that the Sheriffs delay in complying with Alt-house’s request until after the filing of his suit amounted to an “unlawful refusal” under section 119.12, for which fees and costs are to be awarded.

Accordingly, we hold that the denial of an award of Althouse’s fees and costs, without an evidentiary hearing to determine the reasonableness of such costs, was reversible error. The matter is remanded to the lower court with directions to set an evidentiary hearing to determine if the costs requested by Althouse were reasonably incurred and, if so, award those costs to Althouse.

Reversed and remanded with direction.

POLEN and CONNER, JJ., concur.

      . See Weeks v. Golden (Weeks I), 764 So.2d 633, 635 (Fla. 1st DCA 2000) (reviewing a trial court's denial of costs and fees under section 119.12 without any deference to the trial court’s findings); cf. Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007) (typical standard of review is abuse of discretion when amount of fees and costs is at issue; standard of review is de novo, however, "when entitlement to attorney’s fees is based on interpretation of contractual provisions, or a statute, as a pure matter of law” (citations omitted)).

      . Equally, the Court does not find convincing the argument advanced by the Sheriff that Althouse "perpetuated the litigation after receiving the requested records from the Sheriff's Office including lawful redactions relating to same.” Notably, the Sheriff's compliance came after Althouse's suit to enforce production of the requested public records.


author: GROSS, J.

text:
    Javaris BRUCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2620.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

After a drive-by shooting, appellant Ja-varis Bruce was charged with three counts of attempted first-degree murder. A jury found him guilty of three counts of attempted voluntary manslaughter. We reverse because the trial court erred in failing to suppress Bruce’s statement to the police obtained in violation of article I, section 9 of the Florida Constitution.

To settle a score, Bruce drove four of his friends in his car to the Franklin Park Community Center, where they expected to find Jarvis Laramore and Eligha McFadden, the objects of their revenge. At least two of the car’s occupants brought their guns. After the car arrived, a number of gunshots sprayed from the car into the surrounding area and a stray bullet hit a person driving a car nearby. McFadden and Laramore ran away.

Several days after the shooting, Fort Lauderdale police officers arrested Bruce at his mother’s Fort Lauderdale home for the shooting. As police arrested him, Bruce instructed his mother to telephone his lawyer, Michael Rocque, to inform him of the situation. After a phone conversation with Bruce’s mother, Rocque understood that Bruce was hiring him. Rocque told Bruce’s mother to tell her son not to say anything to the police other than to express a desire to speak with legal counsel. As Bruce was being taken away by the Fort Lauderdale police, Bruce’s mother relayed the message. She also made the arresting officers aware that she was on the phone with her son’s attorney.

Immediately after receiving the.mother’s phone call, Rocque left a voice message with the Fort Lauderdale Police Department telling them that he was invoking Bruce’s right to remain silent and right to counsel. Additionally, Rocque faxed letters to the Fort Lauderdale Police Department and the Broward Sheriffs Office relaying the same , information. Rocque then prepared to go to the Fort Lauderdale Police Department to meet with Bruce, but before leaving his office Bruce’s mother told Rocque that her son was being taken to the Broward Sheriffs Office. Rocque arrived at the Broward Sheriffs Office at about 2:30 p.m., but was denied access to Bruce, who was being simultaneously interrogated. The detectives questioning Bruce were unaware that Rocque was seeking access to the interrogation room to see his client. Bruce signed a Miranda waiver form at 2:38 p.m. Bruce did not invoke his right to counsel. Over an hour later, Rocque was taken to the interrogation room. By that time, Bruce had given a statement. In his recorded statement, Bruce admitted that he went to the scene to fight and that he fired a gun “two times, I don’t know.” Neither before nor during the interrogation was Bruce informed that his attorney was in the building trying to speak with him.

Bruce’s motion to suppress his statement argued, among other things, that the police conduct violated his rights under article I, sections 9 and 16 of the Florida Constitution. The trial court denied the motion reasoning that Bruce did not “personally invoke his right to counsel” and that the interrogating officers did not have “a duty to stop the interrogation of the defendant” because they “were not aware that Mr. Rocque was present to see the defendant.”

Haliburton v. State (Haliburton II), 514 So.2d 1088 (Fla.1987) compels the conclusion that the police conduct in this case denied Bruce due process of law under article I, section 9 of the Florida Constitution. With facts similar to those in this case, Haliburton I originally found a violation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Haliburton v. State (Haliburton I), 476 So.2d 192 (Fla.1985). The United States Supreme Court vacated that decision and remanded it for reconsideration. Florida v. Haliburton, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986). On remand, the Florida Supreme Court again suppressed the defendant’s statement, basing its ruling on the Florida, and not the Federal, Constitution.

According to the facts set forth in Haliburton I, the defendant was arrested “at about 6:30 a.m., advised of his rights, and questioned until 9:30 a.m.” 476 So.2d at 193. “He submitted to a polygraph examination at 2:05 p.m.” Id.

Meanwhile [the defendant’s] sister retained an attorney to represent him. The attorney called the police near the end of the polygraph examination and requested that the questioning stop. The attorney arrived at the police station a few minutes before 4 p.m. and asked to speak with [the defendant], but was not allowed to do so. [The defendant] gave a recorded statement from 3:56 until 4:20 p.m. that was played to the jury. By 4:18 p.m. the attorney had a telephone court order requiring that the police give him access to [the defendant]. After the judge’s second phone call, the police chief ordered that the interrogation cease, and the attorney was able to see [the defendant].

Id.

The Supreme Court held in Haliburton I that “the police’s failure to notify [the defendant] that an attorney [retained on his behalf] was present and requesting to see him deprived [the defendant] of information essential to a knowing and intelligent waiver of his right to counsel under Miranda v. Arizona.” Haliburton II, 514 So.2d at 1089. See also Haliburton I, 476 So.2d at 193-94.

Under facts similar to Haliburton, the United States Supreme Court found no federal fifth or sixth amendment violation, but wrote that its decision did not disable “the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.” Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The United States Supreme Court vacated Ha-liburton I and remanded it for reconsideration in light of Burbine. Florida v. Haliburton, 475 U.S. at 1078, 106 S.Ct. 1452.

On remand, the Florida Supreme Court held that the police conduct in Haliburton I denied the defendant due process of law under article I, section 9 of the Florida Constitution. Haliburton II, 514 So.2d at 1090. The Supreme Court based the violation on the failure of the police (1) to tell the defendant of his attorney’s telephone call and (2) provide the attorney with access to the defendant after he arrived at the police station. Id. The Court explained its ruling by quoting from Justice Stevens’ dissent in Burbine:

As Justice Stevens stated in his Burbine dissent, any “distinction between deception accomplished by means of an omission of a critically important fact and deception by means of a misleading statement, is simply untenable.” [475 U.S. at 458, 106 S.Ct. 1135] (Stevens, J., dissenting). Further, “there can be no constitutional distinction ... between a deceptive misstatement and the concealment by the police of the critical fact that an attorney retained by the accused or his family has offered assistance, either by telephone or in person.” Id. (footnote omitted).
Further, the attorney in the instant case not only telephoned the police station as to the status of his client, but subsequently arrived at the station and requested access. As the Oregon Supreme Court has observed, “[t]o pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run.” State v. Haynes, 288 Or. 59, 72, 602 P.2d 272, 278 (1979), cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980). Haliburton was not told of the attorney’s presence or request.

Haliburton II, 514 So.2d at 1090.

Haliburton II remains good law. In Harvey v. State, the Supreme Court confronted a challenge to a defendant’s statements where a public defender heard of Harvey’s arrest and “took it upon himself’ to “go to the station to see if Harvey needed a lawyer.” 529 So.2d 1083, 1085 (Fla.1988), abrogated on other grounds by Fenelon v. State, 594 So.2d 292, 294 (Fla.1992). Finding that the public defender was “not Harvey’s lawyer,” the Supreme Court distinguished Haliburton II as a case where

the defendant’s sister had called a specific attorney and asked him to represent her brother. The police refused to permit the attorney to see Haliburton even after a judge had ordered them to do so. Here, neither Harvey nor anyone from his family requested that an attorney come to the police station to talk with him.

Harvey, 529 So.2d at 1085.

The first district followed Haliburton II in State v. Allen, 548 So.2d 762 (Fla. 1st DCA 1989), a case factually similar to this one. There, the defendant gave a statement “as an attorney secured for the [defendant] by members of his family was attempting to reach him.” Id. at 763. The police failed to inform the defendant that the attorney was trying to contact him by telephone and “while there was no deliberate deception by the sheriffs office,” the defendant’s “location was easily ascertainable.” Id. The first district affirmed the trial court’s suppression of the defendant’s statement, relying on Haliburton II. Id. at 764. The court “emphasized that the constitutional error” was “the failure to tell the [defendant] that an attorney wished to speak with him.” Id. The court held that a constitutional violation occurred even though the police did not intentionally block communication between the attorney and the defendant. Id.

This case presents a stronger case for a due process violation under article I, section 9 than both Haliburton II and Allen. Here, it was Bruce who asked his mother to call his lawyer with the intention of retaining him; this was not a case where relatives secured a lawyer on a defendant’s behalf. Under Haliburton II, a suspect must be informed promptly of efforts by a lawyer to provide legal assistance relating to the detention; this means that the police must advise a defendant that a lawyer is present in the station house and available to speak with him. Armed with that information, the suspect may choose whether he wishes to speak with counsel. If he desires to do so, interrogation must cease. Only if a suspect decides to forego the assistance of counsel, may interrogation continue and counsel be denied access. Because they are responsible for the suspect’s isolation, the police have a duty to act reasonably, diligently, and promptly to provide the defendant with accurate information.

The police cannot rely on the failure to notify interrogators of a lawyer’s presence to skirt the article I, section 9 due process requirements imposed by Haliburton II. Thus, the fact that the interrogating detectives in this case were unaware of Roc-que’s presence at the station house is without legal significance. To allow the police to hide behind the imprecise standard of the good faith ignorance of the interrogators would encourage law enforcement to be deaf and blind to a lawyer’s attempts to contact his client in the station house. In this case, Rocque was present in the station house seeking access to Bruce before Bruce signed the Miranda waiver. The motion to suppress the statements should have been granted.

For these reasons, we reverse the convictions for attempted voluntary manslaughter and remand to the circuit court for a new trial.

WARNER and STEVENSON, JJ., concur.

      . In Smith v. State, a case involving an appointment of counsel prior to a defendant's arrest, which the opinion characterizes as "a nullity,” the Supreme Court distinguished Ha-liburton II as an article I, section 9 case, not one involving a "question of waiver under the Sixth Amendment,” and found that "the offensive police misconduct which compelled the decision in Haliburton [II] was not present.” 699 So.2d 629, 639 (Fla.1997).


author: CIKLIN, J.

text:
    Lukens PETIT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4253.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Jonathan S. Friedman, Law Offices of Jonathan S. Friedman, P.A., Fort Lauder-dale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appel-lee.
   On Motion for Clarification

CIKLIN, J.

We grant the motion for clarification, withdraw our previous opinion and substitute the following in its place.

Introduction

Lukens Petit appeals his convictions for one count of felony murder, three counts of attempted felony murder, and one count of armed robbery. Petit received a life sentence for the felony murder and thirty years for each of the remaining convictions, all to be served concurrently. While ultimately we affirm the convictions, we write to discuss the Confrontation Clause arguments raised by Petit. As for all other arguments Petit raises, we find them to lack merit and do not discuss them further.

Background

On July 14, 2007, armed gunmen robbed a carwash in Pompano Beach. After the suspects fled in a vehicle, two of the victims pursued them onto southbound 1-95 until the suspects took the Hollywood Boulevard exit. By this point, the suspects were being chased by police cars. The suspects ran through an intersection and crashed into a vehicle containing three individuals, all of whom were seriously injured. One of the individuals inside the suspects’ vehicle was killed in the accident as well.

After Petit was arrested for his involvement in the robbery and automobile collision, Edder Joseph, the owner of a carwash and one of the robbery victims, testified at Petit’s bond • hearing. He said that he and his employee, Rubin Saint Remy, were at the carwash when a vehicle pulled in very fast; five men wearing homemade ski masks and holding guns, including at least one shotgun, got out of the vehicle and ordered everyone on the ground. The five men took Joseph’s'money, identification, and jewelry, got back into the vehicle, and fled the scene; Joseph and Saint Remy quickly entered one of the vehicles at the car-wash and pursued the suspects onto and down 1-95.

Joseph’s testimony at the bond hearing was read into the evidence at Petit’s trial because Joseph refused to testify. Sometime after the robbery, Joseph was the victim of a shooting, which he survived. Joseph then started living with various relatives and friends to elude authorities and anyone else. Petit objected to Joseph’s bond hearing testimony being admitted at trial, arguing that it violated the Confrontation Clause as understood in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court overruled the objection, finding that the state demonstrated that Joseph was unavailable.

At the trial, audio recordings of four 911 calls were admitted into evidence and played for the jury. The first call came from an individual reporting the robbery. The second was a call back from the 911 operator after the first call was disconnected. The third call originated from Saint Remy as he and Joseph pursued the suspects on 1-95, and the fourth call was initiated when the third call was disconnected and a 911 operator called back. Petit objected to all of these calls being admitted, arguing that they were Confrontation Clause violations under Crawford as well. The trial court found all of the calls to be nontestimonial because they were part of an ongoing emergency and admitted them.

Bond Hearing Testimony

Petit argues on appeal that Joseph’s statements at the bond hearing were im-permissibly admitted because they violated his Sixth Amendment right to confront witnesses as explicated in Crawford. More specifically, Petit argues (1) the state did not prove Joseph’s unavailability, and (2) there was no meaningful opportunity for cross-examination at the bond hearing.

In State v. Belvin, 986 So.2d 516 (Fla.2008), our supreme court summarized the Crawford holding of the United States Supreme Court:

[I]n Crawford, the Supreme Court ... held the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if “testimonial” evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1854. “Only [testimonial statements] cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.

Id. at 520. The state concedes that Joseph’s statements at the bond hearing were testimonial, and we find no reason to question this concession. Therefore, the relevant inquiry regarding Joseph’s bond hearing testimony is whether the state proved Joseph’s unavailability and whether Petit had an opportunity for cross-examination.

“The trial court’s determination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Essex v. State, 958 So.2d 431, 432 (Fla. 4th DCA 2007) (citation and quotation marks omitted). Further, whether the bond hearing provided an opportunity for cross-examination for Confrontation Clause purposes is a purely legal question and should therefore be reviewed by this court de novo. See, e.g., Cromartie v. State, 70 So.3d 559, 563 (Fla.2011) (“The issue in this case is a pure question of law and therefore the standard of review is de novo.”).

As to the required analysis concerning unavailability in the instant case, the facts are uncontested. We must determine whether these facts could permit the trial court to find that the declarant, Joseph, was unavailable for Crawford purposes.

An investigator for the state attorney’s office testified that he was the individual responsible for locating Joseph. The investigator testified first about his interaction with Joseph back in March of 2009, approximately six months before Petit’s trial. The investigator testified that Joseph was “scared to death” of testifying because “he had been shot several times because of just becoming involved with the police and he felt that testifying would be even worse.” According to the investigator, Joseph did not cooperate or agree to come to court. He said that he reached out to Joseph’s wife to try to locate Joseph the day before the trial. The investigator said that Joseph’s wife put Joseph on the phone at one point. Joseph told the investigator he was still frightened of testifying, that he thought this case was over because of a co-defendant’s trial, and that he lost his vision and had trouble walking as a result of being shot. Joseph said he was not living with his wife but was living with different relatives and friends to keep his location unknown. The investigator said that Joseph refused to testify and never disclosed his location. The investigator also said that it was “impossible” to find Joseph and that he “may be in deep hiding.” The investigator further testified that he served a subpoena on Joseph via his attorney back in March for a co-defendant’s trial and Joseph did not appear to testify.

On appeal, Petit argues that an individual can only be considered “unavailable” for Confrontation Clause purposes if he fits into any of the categories in section 90.804(1), Florida Statutes (2007). Section 90.804, however, defines “unavailability” of the declarant for the purpose of the hearsay exceptions. But the Florida Supreme Court has defined unavailability for Confrontation Clause purposes much more broadly than section 90.804(1): “In order for a witness to be unavailable for confrontation purposes, the State must make a good faith showing of attempting to secure the witness. This includes going to reasonable lengths to procure the witness.” State v. Johnson, 982 So.2d 672, 681 (Fla.2008) (emphasis added). Therefore, the only requirement here is that the state made a good faith effort to procure Joseph as a witness for the instant trial.

From the investigator’s testimony, we find that the trial court did not err in determining that the state made a good faith effort to locate Joseph for the trial. Therefore, the trial court, based on the particular facts of this case, correctly determined that Joseph was unavailable for the trial.

The remaining issue is whether the bond hearing at which Joseph testified provided Petit an opportunity for cross-examination. Petit argues that a bond hearing does not provide a meaningful opportunity for cross-examination as contemplated by the United States Supreme Court in Crawford. Specifically, Petit characterizes the Crawford holding as forbidding the admission of former testimony if “the former testimony is [not] obtained during a judicial procedure that is similar in motive to the trial.” However, this is a mischaracterization of the holding in Crawford. The Supreme Court has stated the cross-examination requirement in very general terms: “Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford, 541 U.S. at 59, 124 S.Ct. 1354. Crawford does not require similarity of motive in the previous judicial proceeding or mention a “meaningful” opportunity for cross-examination.

In Thompson v. State, 995 So.2d 532 (Fla. 2d DCA 2008), the Second District dealt with a similar issue. A victim’s testimony at an adversarial preliminary hearing was admitted at trial because the victim was murdered prior to trial. Id. at 533. The defendant argued that the admission of this testimony violated his confrontation rights under Crawford. Id. at 534. The court noted that Crawford required that prior testimony of an unavailable witness is only admissible if its “reliability [is] ‘tested in the crucible of cross-examination.’ ” Id. (quoting Crawford, 541 U.S. at 61, 124 S.Ct. 1354).

The Second District reviewed the relevant rule of criminal procedure dictating adversarial preliminary hearings and found that “[t]he rule places no limitations on the extent of cross-examination.” Id. The Second District concluded that no Confrontation Clause violation occurred in admitting the victim’s prior testimony from an adversarial preliminary hearing because the defendant had an opportunity for cross-examination at the hearing.

Petit cites to an older case from the First District, Nazworth v. State, 352 So.2d 916 (Fla. 1st DCA 1977). In Naz-worth, the defendant appealed the admission at trial of testimony taken at a bond hearing. Id. at 917. The witness’s testimony on direct and cross-examination at the bond hearing encompassed eight total transcript pages, but the state conducted a forty-two-page re-direct examination that was not subject to cross-examination and which was read into the record at trial. The First District found, “The extensive re-direct of [the witness] by the state after the limited cross-examination by [the defendant’s] counsel did not afford the defendant an opportunity for proper cross that would have been available had [the witness] testified at trial.” Id. at 918. Petit emphasizes the following language from Nazworth:

A bond hearing is for the purpose of setting bond. The inquiry conducted bears little or no resemblance insofar as defendant is concerned with trial.

Id. Nazworth is distinguishable for multiple reasons. First, it predates Crawford. Second, it does not appear to be a case dealing with the Confrontation Clause, but rather with the general admissibility of prior testimony under Florida common law. Third, in the instant case we are not presented with a lengthy re-direct examination which was not subject to cross-examination. Finally, Nazworth is brief and its analysis is quite limited. Thus, we find Nazworth inapplicable to the instant case.

We can find no Florida case addressing whether a bond hearing satisfies the requirement of an opportunity for the cross-examination as explained in Crawford. Therefore, we turn to relevant federal cases for guidance. The United States Supreme Court has explained that “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)).

In U.S. v. Hargrove, 382 Fed.Appx. 765, 778 (10th Cir.2010), the Tenth Circuit stated the following clear understanding of the interplay of Crawford and other rules of evidence regarding cross-examination:

Crawford requires only that the defendant have an opportunity to cross-examine the adverse witness at the prior proceeding — it does not require that the defendant have a similar motive at the prior proceeding. The pri- or motive requirement comes from the Federal Rules of Evidence, not the Confrontation Clause. See Fed.R.Evid. 804(b)(1).

Id. The Tenth Circuit continued to distinguish between a Crawford issue and an evidentiary issue regarding prior testimony:

[The defendant] also claims testimony in a Kansas state court preliminary hearing can never satisfy the requirements of the Confrontation Clause because the purpose of a preliminary hearing under Kansas law is limited to determining the existence of probable cause. This argument is unavailing because the Supreme Court has held testimony from a preliminary hearing can be admitted without violating the Confrontation Clause despite the fact the function of a preliminary hearing “is ... determining whether probable cause exists-” What matters under the Confrontation Clause is whether the defendant had a prior opportunity to cross-examine the witness. Under Kansas law, “[t]he defendant has the right to cross-examine witnesses against him and introduce evidence on his behalf [at the preliminary examination].” [The defendant] had the right and he exercised that right.

Id. at 779 (citations and footnotes omitted); see also O’Neal v. Province, 415 Fed.Appx. 921, 924 (10th Cir.2011) (“[U]nder Crawford, a preliminary hearing affords sufficient opportunity for cross-examination .... ”); Samayoa v. Ayers, 649 F.Supp.2d 1102, 1145 (S.D.Cal.2009) (“ ‘[Sjimilar motive’ is a state evidentiary requirement, and not a requirement under the Confrontation Clause. The Supreme Court has refrained from conducting any similar motive inquiry in their [sic] Sixth Amendment cases .... ”).

Thus, the Tenth Circuit has found that the opportunity for cross-examination under the Confrontation Clause is not the same as that contemplated under the Federal Rules of Evidence, which requires similarity of motive to develop testimony. The same is true in Florida and in the instant case — the rules of evidence for Florida and the Florida common law may require that prior testimony only be admitted if there is similarity of motive to develop testimony, but that is a separate analysis from Crawford and the Confrontation Clause. Petit’s argument below was clearly and unambiguously a Crawford objection alone.

Therefore, the trial court did not err in admitting Joseph’s prior testimony at the bond hearing over Petit’s Crawford objection. Joseph’s statements were testimonial and therefore fell within the ambit of Crawford’s application of the Confrontation Clause. However, the state demonstrated that Joseph was unavailable for trial, and Petit had an opportunity to cross-examine Joseph at the bond hearing, which his counsel took. Therefore, Crawford was satisfied.

The Four 911 Calls

“An appellate court employs a mixed standard of review in considering a trial court’s ruling on the admissibility of evidence over an objection based on the Confrontation Clause.” Hernandez v. State, 946 So.2d 1270, 1277 (Fla. 2d DCA 2007). As such, the trial court’s factual findings must be supported by competent, substantial evidence; the trial court’s legal conclusions, however, are subject to de novo review. Id. In the matter of the 911 calls, the only issue presented is whether the calls were testimonial or nontestimonial. This is a legal question, and therefore we approach it de novo.

The Supreme Court in Crawford purposefully declined to provide any definition for “testimonial.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ”). Approximately two years after Crawford was decided, however, the Supreme Court provided further guidance as to what constitutes testimonial and nontestimonial statements in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

In Davis, the statements at issue came from a 911 call made by a victim of domestic violence who was in the process of being abused by her former boyfriend. Id. at 817. The victim told the 911 operator, “He’s here jumpin’ on me again.” The victim then said that the former boyfriend was “runnin’ now.” The operator asked the victim a number of questions about the former' boyfriend’s identity and whereabouts.

The Court concluded that those statements made to the 911 operator were non-testimonial and therefore admitting them did not violate the Confrontation Clause. The Court stated the following standard:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822, 126 S.Ct. 2266.

The Court also considered a separate case, Hammon v. Indiana, reported with Davis. Id. at 819. In Hammon, the statements at issue were made directly to police officers and did not involve 911 calls. The police responded to a reported domestic disturbance. They found the victim, appearing frightened, alone on the front porch, but she told the police that “nothing was the matter.” She gave the police permission to enter the house and they found the victim’s husband in the kitchen. The officers questioned both the victim and her husband in separate rooms and these statements to police were the ones at issue. The Court found that the statements were testimonial:

Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.

Id. at 830.

The Court in Davis emphasized that its analysis was constrained by the facts presented to it in the case and stated that it was not “attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial.” Id. at 822.

Recently, in Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Supreme Court offered a further refinement of its Crawford/Davis jurisprudence. The Court explained that determining “whether an emergency exists and is ongoing is a highly context-dependent inquiry.” Id. at 1158. The Court explained the “primary purpose test” as follows:

To determine whether the “primary purpose” of an interrogation is “to enable police assistance to meet an ongoing emergency,” which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.

Id. at 1156 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266).

Continuing, the Court reiterated that the subjective or actual intentions of the individuals involved is not a consideration. Instead, the primary consideration is whether “the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief [is] later proved incorrect.” Id. at 1157 n. 8.

The Court also explained the narrowness of its prior holding in Davis. Because Davis and Hammon involved “domestic violence, a known and identified perpetrator, and, in Hammon, a neutralized threat,” the Court had “focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them.” Id. at 1158. Importantly, the Court found:

Domestic violence cases like Davis and Hammon often have a narrower zone of potential victims than cases involving threats to public safety. An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue.

Id. The Court also reiterated that “the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the ‘primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.’ ” Id. at 1165 (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266).

The Court then provided a nonex-haustive list of considerations which may aid courts in determining whether an emergency is ongoing: (1) whether an armed assailant poses a substantial threat to the public at large, see id. at 1158; (2) the type of weapon used by the assailant, see id. at 1158-59; (3) the severity of the victim’s injuries, see id. at 1159; (4) the formality of the interrogation, see id. at 1160; and (5) the involved parties’ statements and actions. See id. Finally, the Court reiterated its observation in Davis that “ ‘a conversation which begins as an interrogation to determine the need for emergency assistance’ can ‘evolve into testimonial statements.’ ” Id. at 1159 (quoting Davis, 547 U.S. at 828, 126 S.Ct. 2266).

With this guidance in mind, we now address whether the four 911 calls introduced in the instant case were testimonial or nontestimonial. This determination hinges on whether the questions from the 911 operator occurred during the context of an ongoing emergency and were designed “to enable police assistance to meet [the] ongoing emergency.” Bryant, 131 S.Ct. at 1165.

The first 911 call was from an unknown individual calling to report the robbery. It was a very brief conversation, in which the caller made semi-coherent statements to the 911 operator. The caller stated that he or she was at a food store and saw “the car pulled up and guns and all.” The caller said he or she did not know what was going on. The caller then disconnected the call.

During the first call, the 911 operator only asked very preliminary questions trying to discern what the caller was trying to report. From the brief and discombobulated statements made by the caller, the situation appeared to involve armed suspects, but based on the brevity of the call and the caller’s difficulty making coherent sentences it would be unclear what was actually happening from this call—-just that some situation involving guns was occurring or had occurred. We have no trouble concluding that the primary purpose of the 911 operator’s questions was to determine whether an ongoing emergency existed in the first place and thus the statements from this call were nontestimo-nial.

In the second call, which was also very brief, the 911 operator reversed the call to get the caller back on the line. The operator asked basic questions such as what type of vehicle the suspects drove, what they did during the robbery, how many suspects were present, and what weapons they brandished. In this call, the 911 operator’s questions were once again designed to gather basic background information to determine if an ongoing emergency even existed. The statements during this call were also nontestimonial.

The third call occurred when Saint Remy called 911 to report the robbery as he and Joseph were pursuing the suspects on 1-95. Initially the 911 operator was unclear as to what the caller was reporting, so the first few questions were preliminary in nature. Once the operator discerned that Saint Remy was in a vehicle pursuing another vehicle containing multiple armed robbers down a major interstate highway at presumably high speeds, the operator then attempted to convince Saint Remy to stop following the suspects because it was dangerous.

Petit argues that this call could not relate to an ongoing emergency because Saint Remy’s actions—chasing the suspects down 1-95—in effect created (or extended) the emergency situation. However, the Supreme Court in Bryant held that the subjective intent of the parties is not relevant. Instead, the proper analysis is whether “the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief [is] later proved incorrect.” Bryant, 131 S.Ct. at 1157 n. 8. The 911 operator had limited information, mainly that the victims of a robbery were pursuing another vehicle containing multiple armed suspects down an interstate highway. This was also an informal interrogation, whose primary purpose appears to have been to convince Saint Remy to cease his pursuit. A reasonable person, when faced with these facts, would believe that an emergency was ongoing. Thus, the statements from this call were nontestimonial.

The fourth 911 call is admittedly more difficult to analyze. It is substantially lengthier than the prior three calls, lasting approximately fifteen minutes. After the third call was abruptly disconnected, the 911 operator reversed the call to Saint Remy. The call ended when Saint Remy followed the suspects off 1-95 and came upon the recent wreckage of the suspects’ collision with another vehicle.

We note first that multiple armed suspects were still on the loose, posing a substantial risk to the public at large. Indeed, this substantial risk to the public culminated in the armed suspects causing a collision that took one life and grievously injured multiple third parties. Exacerbating the situation, two of the robbery victims were speedily pursuing the armed suspects on a major public highway. Saint Remy told the 911 operator that the suspects were speeding and driving erratically. If these circumstances cannot be classified as an ongoing emergency, we have trouble imagining what would.

While we have little difficulty concluding that the circumstances, as known to the parties at the time, constituted an “ongoing emergency,” this determination does not end our analysis. We must now decide “whether the ‘primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.’ ” Bryant, 181 S.Ct. at 1165 (quoting Davis, 547 U.S. at 822). In the fourth call, the 911 operator repeatedly asked for updates from Saint Remy regarding his location on 1-95. The 911 operator also asked about the suspects’ location multiple times as well. At some point, Saint Remy informed the 911 operator that the suspects were being pursued by police vehicles in a high-speed chase. The 911 operator’s questions appear designed primarily to obtain a continual stream of information from Saint Remy about his and the suspects’ whereabouts. The suspects were attempting to elude the police and engaged in a high-speed chase. The questions that the 911 operator asked Saint Remy were designed to assist the police in identifying and locating a car full of armed robbers. In other words, the primary purpose of the interrogation was “to enable police assistance to meet [the] ongoing emergency.” Id. As such, the statements from the fourth 911 call were nontestimonial, and admitting them at trial did not violate the Confrontation Clause. Finally, even assuming the last of the 911 calls was an abuse of discretion to admit, any error would be harmless, since there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Affirmed.

GERBER and LEVINE, JJ., concur.

      . The bond hearing was held pursuant to State v. Arthur, 390 So.2d 717 (Fla.1980).

      . The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him.” Amend. VI, U.S. Const.

      . Our supreme court has opined, in a case involving very different facts, that one circumstance which satisfies the confrontation requirement is "where the opportunity [for cross-examination] is exercised, is more than 'de minimis,' and is 'the equivalent of significant cross-examination.' " State v. Contreras, 979 So.2d 896, 909 (Fla.2008) (quoting Ohio v. Roberts, 448 U.S. 56, 70, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). In the instant case, cross-examination did occur at the bond hearing, it was more than “de minimis,” and we do not have trouble characterizing it as the equivalent of significant cross-examination.

      . In a footnote, the Court considered 911 operators the functional equivalent of law enforcement officers for Confrontation Clause purposes. Davis, 547 U.S. at 823 n. 2.

      . The victim subsequently refused to testify against her husband.


author: PER CURIAM.

text:
    Catherine PFLUGRATH, Appellant, v. AURORA LOAN SERVICES, LLC, Appellee.
    No. 3D11-1595.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Kaufman, Englett & Lynd, and Richard W. Withers and Craig L. Lynd, Orlando, for appellant.
    Akerman Senterfitt, and Nancy M. Wallace, Katherine E. Giddings and Kristen M. Fiore, Tallahassee, and William P. Heller, Fort Lauderdale, for appellee.
    Before SHEPHERD and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Catherine Pflugrath appeals from a final judgment of foreclosure. Although the judgment was entered after a non-jury trial, the trial court order grants summary judgment. We remand for correction of the scrivener’s error, and affirm the judgment in all other respects.


author: MAY, C.J.

text:
    James S. CUNHA, Appellant, v. Jennifer CUNHA, Appellee.
    No. 4D11-1892.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    James S. Cunha, West Palm Beach, pro se.
    Jennifer M. Cunha of Law Office of Paul A. Krasker, West Palm Beach, for appel-lee.
   MAY, C.J.

The former husband appeals an order denying his request to vacate a judgment in favor of the former wife. He argues the trial court should have vacated the judgment once he settled the outstanding debt upon which the judgment had been based. We agree and reverse.

The trial court entered an Agreed Final Judgment of Dissolution of Marriage, ratifying and incorporating a Marital Settlement Agreement (hereinafter “MSA”). Pursuant to the MSA, the former husband agreed to assume responsibility for a certain debt; the MSA did not specify the amount owed.

When the former husband failed to pay the debt, the former wife filed a Motion for Contempt and to Enforce Agreed Final Judgment of Dissolution of Marriage. The trial court did not find the former husband in civil contempt because the failure to pay had to do with liabilities that were equitably distributed, rather than alimony. However, the trial court granted the motion to enforce the terms of the final judgment and ordered the former husband to pay $5,722.00—an amount testified to by the former husband consisting of the $3,610.64 debt and accrued interest.

Subsequently, the former husband settled the debt for $2,400.00. According to correspondence from the debt collection company, that amount would “fully settle” the debt and would “stop all further collection efforts.”

The former husband then moved for relief from the $5,722.00 judgment, arguing that the debt upon which the judgment was based had been satisfied. The former wife opposed the motion, and argued that settling the debt for less than the amount owed adversely affected her credit rating and her income tax liability. The trial court denied the motion. From this order, the former husband has appealed.

The former husband argues the trial court abused its discretion in denying his motion for relief from judgment because he fully satisfied the debt identified in the MSA. The former wife responds that the former husband has not satisfied the judgment of $5,722.00 entered in her favor. Therefore, the trial court properly denied the former husband’s motion.

“Because a trial court is accorded broad discretion in determining rule 1.540(b) motions, the standard of review of an order on a rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court’s discretion.” Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (citation omitted).

Under Florida Rule of Civil Procedure 1.540, a court may relieve a party from a final judgment where “the judgment or decree has been satisfied, released, or discharged.” Fla. R. Civ. P. 1.540(b)(5); Barnett Bank of S. Fla., N.A. v. Am. Med. Express Corp., 671 So.2d 819, 819 n. 1 (Fla. 3d DCA 1996). We have previously explained that an agreement between parties “to satisfy [a] debt for less than the amount due and its payment can amount to a satisfaction of the debt.” Berman v. U.S. Fin. Acceptance Corp., 669 So.2d 1116, 1117 (Fla. 4th DCA 1996) (emphasis in original).

Here, there is a unique twist to the application of this body of law. The former husband satisfied the debt with the creditor, but did he satisfy the MSA’s requirement that he be responsible for the specified debt? We conclude that he has.

“It is well settled that a marital settlement agreement is subject to interpretation like any other contract.” Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997). The relevant portion of the MSA simply provides for the former husband to bear responsibility for paying the debt. No amount is provided, and nothing in the MSA prevented the former husband from negotiating settlement of the debt for less than the full amount owed. Under our holding in Berman, even though the former husband paid less than the full amount due, he satisfied the debt.

Our interpretation of the MSA is confined to its four corners. We cannot require payment of the full amount owed when the MSA does not require it. We therefore reverse the trial court’s order denying the former husband’s motion for relief from the judgment.

Reversed and remanded to vacate the judgment against the former husband.

TAYLOR and CIKLIN, JJ., concur.

      . We note that the MSA provides for the former husband to “indemnify and hold Wife and her property harmless from any failure to pay the same.” We express no opinion on whether this provides an alternative basis for a claim by the former wife.


text:
    Ralph J. BANKS, Appellant, v. STATE of Florida DEPARTMENT OF REVENUE, Child Support Enforcement Program o/b/o Amanda M. PISANO, Appellee.
    No. 4D11-2385.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Ralph J. Banks, Tallahassee, pro se.
    Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. We affirm without prejudice to seek a modification in accordance with section 409.2563(10) or (12), Florida Statutes (2012).

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    GIEMME USA, LLC, a foreign limited liability company and Francesco Molon, LLC, a foreign limited liability company, Appellants, v. LA SALA GROUP, INC., a Florida corporation, Appellee.
    No. 4D11-2508.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Philip J. Kantor and Timothy D. Keni-son of Quintamos, Prieto, Wood And Boyer, P.A., Fort Lauderdale, for Appellants.
    Alan C. Gold and James L. Parado of Alan C. Gold, P.A., Coral Gables, for Ap-pellee.
   GROSS, J.

We reverse a $736,100.59 default final judgment that was entered when the defendants failed to attend a case management conference after their attorney had withdrawn; the record does not demonstrate the willful and contumacious conduct that justifies the imposition of such a severe sanction.

In June 2008, La Sala Group, Inc. filed a complaint against Giemme USA, LLC, and Francesco Molon, LLC. The plaintiff corporation’s complaint was signed by Jaime La Sala, acting pro se. The next month, the defendants moved to dismiss.

The plaintiff dilly-dallied for two years in prosecuting the suit, enduring stricken pleadings and a dismissal before the granting of its motion for reconsideration led to the filing of a second amended complaint by its attorney in June, 2010. The defendants promptly answered and, in August, 2010, the plaintiff noticed the case for trial.

In November, 2010 the defendants began to experience their own litigation problems. Their lawyer moved to withdraw and the order allowing it gave the defendants 30 days to secure new counsel. While the defendants were unrepresented, the plaintiff moved for a default. On January 19, 2011, the trial court set the case for a case management hearing on February 7, 2011. The defendants did not attend the hearing. At the hearing, on a form order, the trial court checked the box entering a default against the defendants for failing to appear and handwrote the notation that the defendants’ “pleadings are also stricken.” The plaintiff later moved for a default summary final judgment and on April 28, 2011, the trial court entered a final judgment against both defendants for $736,100.59.

The defendants moved to set aside the default judgment on various grounds, including a lack of notice and the failure of the case management order to contain the type of findings that would support the striking of pleadings and entry of a default. The trial court denied the motion.

This record demonstrates neither the extreme misconduct by the defendants nor the express findings of a trial court required to support the severe relief granted as a result of the defendants’ nonattendance at the case management conference. If a party fails to attend a noticed case management conference, “the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action.” Fla. R. Civ. P. 1.200(c). “A finding that the party’s conduct was willful and contumacious is, necessary for entering a default under rule 1.200(c).” Zeigler v. Huston, 626 So.2d 1046, 1047 (Fla. 4th DCA 1993) (citations omitted). The trial court must make the finding in the subject order; failure to do so constitutes reversible error. See Townsend v. Feinberg, 659 So.2d 1218, 1219 (Fla. 4th DCA 1995). “[N]o ‘magic words’ are required but rather only a finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.” Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990). The trial court’s finding must be supported by the record. See Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004).

Here, the trial court’s order entered at the case management hearing failed to make those findings required to justify the striking of pleadings and the entry of a default. We therefore reverse and remand to the trial court with instructions to vacate the final judgment and default. On remand, the trial court may consider the imposition of other, lesser sanctions for the failure to attend the case management hearing.

POLEN, J., and BLOOM, BETH, Associate Judge, concur.


text:
    PUBLIX SUPER MARKETS, INC., Petitioner, v. Linda ANDERSON and Allen Anderson, Respondents.
    No. 4D12-103.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Edward G. Guedes and Lama K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for petitioner.
    Ariel E. Furst and Daniel M. Grissom of Law Office of Ariel E. Furst, P.A., Miami, for respondents.
   GROSS, J.

This case arises from a slip and fall at a Publix grocery store. During discovery, the plaintiff sought “any and all reports concerning the incident identified in the plaintiffs complaint.” Publix asserted a work-product privilege and its privilege log identified two documents: a report of the incident by the assistant store manager and a “customer incident witness statement” of a customer service staff associate. Both items were prepared after the plaintiffs fall, on the same day. After reviewing the reports in camera, the trial court ordered their production. Publix seeks certiorari review of that order. We grant the writ and quash the order.

Florida Rule of Civil Procedure 1.280(b)(3) provides that a party may obtain work product, or materials “prepared in anticipation of litigation,” “only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

Both the incident report and the witness statement state that they were “prepared in anticipation of a claim or litigation” and are “confidential.” We agree with the observation of the fifth district that such items are obviously documents prepared in anticipation of litigation. Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983). Created after a slip and fall has been reported to the grocery store, such reports and employee statements,

certainly are not prepared because of some morbid curiosity about how people fall at the market. Experience has shown all retail stores that people who fall in their stores try to be compensated for their injuries. Experience has also shown those stores that bogus or frivolous or exaggerated claims might be made. A potential defendant’s right to fully investigate and memorialize the results of the investigation should not be restricted any more than should a potential plaintiffs. Our system of advocacy and dispute settlement by trial mandates that each side should be able to use its sources of investigation without fear of having to disclose it all to its opponents. This allows for free discussion and communication during preparation for litigation. If all reports and other communications of the litigants were available to the opposition then those communications would certainly be stilted, unrevealing and thus self-defeating in their purpose.

Id. at 308.

Publix has met its burden, and the plaintiffs have not demonstrated that they are unable to obtain the “substantial equivalent of the material by other means,” such as depositions.

We grant the petition for writ of certio-rari and quash the order requiring production of the two reports.

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


author: HAZOURI, J.

text:
    Martin OLIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-789.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

The Appellant, Martin Olivera, appeals his convictions and sentences for multiple offenses all arising out of his armed entry into a home in an attempt to commit robbery. Olivera raises four issues on appeal, only one of which has merit. Olivera argues that his convictions and sentences for attempted home invasion robbery with a firearm and armed burglary of a dwelling with a battery violate double jeopardy. We agree.

“Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citation omitted). “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ... Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger [] test, as codified in section 775.021, Florida Statutes (1997), to determine whether separate offenses exist.” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009) (citations omitted).

In the instant case, there is no clear statement of the legislature authorizing or prohibiting separate punishments for violations of sections 810.02(2)(a)-(b) and 812.135(2)(a), Florida Statutes (2008). Thus, we must turn to section 775.021(4), Florida Statutes (2008), to determine whether attempted home invasion robbery and burglary of a dwelling with a battery or assault are separate offenses. That section provides in relevant part:

(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; ... For the purposes of this section, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat. (2008).

Our courts have held that convictions for both home invasion robbery and burglary of a dwelling with a battery, arising out of the same episode, violate double jeopardy because one offense is subsumed by the other. See Davis v. State, 74 So.3d 1096, 1097 (Fla. 1st DCA 2011); Coleman v. State, 956 So.2d 1254, 1256-57 (Fla. 2d DCA 2007); Mendez v. State, 798 So.2d 749, 750 (Fla. 5th DCA 2001). Furthermore, the Second District has also held that convictions for attempted home invasion robbery and for burglary of a dwelling violate double jeopardy. See Schulterbrandt v. State, 984 So.2d 542, 544 (Fla. 2d DCA 2008).

Based on the foregoing, we affirm the conviction for the greater offense, armed burglary of a dwelling with a battery, which is a first-degree felony punishable by life. See § 810.02(2)(a)-(b), Fla. Stat. (2008). We remand with directions that the trial court vacate the conviction and sentence for the attempted home invasion robbery with a firearm, a second-degree felony, and thus the lesser of the two offenses. See §§ 777.04(4)(c); 812.1S5(2)(a), Fla. Stat. (2008). If vacation of the attempted home invasion robbery conviction will require correction of Oliv-era’s scoresheet, Olivera should be resen-tenced on the other counts. See Finkley v. State, 16 So.3d 829, 329-30 (Fla. 4th DCA 2009).

Affirmed in part, reversed in part, and remanded for vacation of attempted home invasion robbery conviction and sentence, and for resentencing on remaining counts if necessary.

STEVENSON and GERBER, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


text:
    Anu RUT, Appellant, v. Thomasz RUT, Appellee.
    No. 4D10-4842.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Anu Rut, Hollywood, pro se.
    Robert J. Moraitis and Peter M. Raim-ondi of Robert J. Moraitis, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

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

STEVENSON, CIKLIN and WALSH, LISA S., Associate Judge, concur.


text:
    Jaime QUEZADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1020.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Jaime Quezada, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order denying appellant’s Florida Rule of Criminal Procedure 3.800(a) motion. Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995). The trial court failed to attach records conclusively refuting appellant’s legally sufficient claim of entitlement to additional jail credit. Collins v. State, 805 So.2d 73 (Fla. 4th DCA 2002).

While the State has responded to this court’s order to show cause and provided this court with a plea agreement that appears to show a waiver of entitlement to additional jail credit, this document was not attached to the trial court’s order below. Pursuant to this court’s caselaw, the State may not provide the records necessary to refute a claim for the first time on appeal. Id. at 74; see also Hastings v. State, 670 So.2d 1176 (Fla. 4th DCA 1996).

Appellant is cautioned that, should his claim be denied on remand, he may appeal only if he has a good faith basis for doing so. He is subject to sanctions should he initiate a frivolous appeal. See State v. Spencer, 751 So.2d 47 (Fla.1999); §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2011).

WARNER, HAZOURI and LEVINE, JJ., concur.


text:
    Calvin “Bubba” H. HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5074.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Kenneth Lee McCROBIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5395.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Arnold J. PITTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5626.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Debbie Mayo KENT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5741.
    District Court of Appeal of Florida, First District.
    July 30, 2012.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Martel Nicholas BATEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6469.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (2012).

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Cornelius Lorenzo BRISTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6540.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Howard GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6931.
    District Court of Appeal of Florida, First District.
    July 30, 2012.

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

AFFIRMED. See State v. Adkins, — So.3d — (Fla.2012).

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Harvey S. LEE, Appellant, v. WELLS FARGO BANK, NA, Appellee.
    No. 1D11-6305.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Sean C. Barber of the Law Offices of Bohdan Neswiacheny, Orange Park, for Appellant.
    Dean A. Morande, Michael K. Winston, Cynthia L. Comras, and Donna L. Eng of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

Appellant seeks review of a final summary judgment of foreclosure. He argues that summary judgment was improperly entered because there was a disputed issue of material fact regarding the lender’s compliance with the notice requirements for accelerating the mortgage. Appellee concedes error. Accordingly, we reverse and remand the judgment on appeal for further proceedings.

Appellant’s motion for attorney’s fees is denied without prejudice. See Termaforoosh v. Wash, 952 So.2d 1247 (Fla. 5th DCA 2007).

REVERSED.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    The JUSTICE ADMINISTRATIVE COMMISSION, A State Agency, Petitioner, v. Elizabeth M. SIMPSON, Respondent.
    No. 1D12-1268.
    District Court of Appeal of Florida, First District.
    July 31, 2012.
    Christian D. Lake, Assistant General Counsel, Tallahassee, for Petitioner.
    Elizabeth M. Simpson, Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the order awarding attorney’s fees in accordance with our decision in Justice Administrative Commission v. Risen, 44 So.3d 1264 (Fla. 1st DCA 2010).

WOLF, ROWE, and SWANSON, JJ„ concur.


text:
    E.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3231.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2012.
    Carlos J. Martinez, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General and Nicole Perez, Certified Legal Intern, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

Based upon the State’s proper and commendable confession of error, we reverse the adjudication of delinquency for resisting an officer without violence and remand with directions to the trial court to vacate the adjudication of delinquency. See L.T. v. State, 69 So.3d 1014 (Fla. 3d DCA 2011); A.A.R. v. State, 926 So.2d 463 (Fla. 4th DCA 2006); P.P. v. State, 466 So.2d 1140 (Fla. 3d DCA 1985).

Reversed and remanded.


author: FREDERICKA HOMBERG WICKER, Judge. JOHNSON, J.,

text:
    James W. GREGOIRE, Jr. v. LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES.
    No. 11-CA-321.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2012.
    Joseph G. Albe, Jr., Attorney at Law, Slidell, LA, for Plaintiff/Appellant.
    Albert J. Nicaud, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA H. WICKER, and MARC C. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| Jn this appeal, we are called upon to decide whether a plaintiff, who has a predisposition for post-traumatic stress, timely filed a petition for workers’ compensation benefits. Because we find that the petition was timely filed, the trial court judgment is reversed, and the case is remanded to the district court.

Factual and Procedural Background

The plaintiff/appellant, Mr. James Gre-goire, was employed as an enforcement agent for the defendant/appellee, Louisiana Department of Wildlife and Fisheries (“the Department”), on August 29, 2005, when Hurricane Katrina devastated the New Orleans area. He joined the Department in 1990, having spent the nine years before that working for the Jefferson Parish Sheriffs Department.

Mr. Gregoire was assigned to assist in the rescue operations during the aftermath of Hurricane Katrina. Quite expect-edly, he witnessed many horrific events during the four-week rescue mission. He managed, however, to block those events, and continue his employment with the Department without incident. Three years after Katrina, Mr. Gregoire was stationed at the Department’s training academy in Baton Rouge, Louisiana on September 1, 2008, in preparation for the |Rlandfall of Hurricane Gustav. Gustav took an unexpected turn and passed directly over the Baton Rouge area where Mr. Gregoire was stationed. He and his colleagues were forced to take shelter in their vehicles, which were parked in the middle of a field. Mr. Gregoire described the experience as “harrowing” as he watched trees and other debris fall all around him. Shortly after September 1, he, for the first time, began reliving the horrific images he witnessed during Hurricane Katrina. He, nevertheless, continued his employment with the Department without incident. On March 23, 2009, Mr. Gregoire was assigned to a hurricane preparedness simulation that occurred on Lake Pontchartrain. The simulation, which mimicked Hurricane Katrina’s rescue mission, triggered more memories of the horrific events that occurred during that time. As a result, he discontinued working with the Department.

Mr. Gregoire filed a 1008 Disputed Claim for Compensation (“1008 compensation claim”) on July 20, 2009, with the Office of Workers’ Compensation. The 1008 compensation claim indicated that the accident occurred on September 1, 2008, and further indicated that the injury was an “[ajggravation of post-traumatic stress due to Hurricane Ike.”. The Department excepted to the petition on August 23, 2010, arguing that the claim had prescribed pursuant to La. R.S. 23:1209. The Department also moved for summary judgment. The trial court granted the exception of prescription, declared the summary judgment motion moot, and dismissed Mr. Gregoire’s 1008 compensation claim with prejudice on October 25, 2010. Mr. Gregoire appeals the trial court’s ruling, arguing that the trial court erred in granting the exception of prescription.

^Discussion

The party urging a peremptory exception of prescription bears the burden of proof. Trust for Melba Margaret Schwegmann v. Schwegmann Family Trust, 09-968 (La.App. 5 Cir. 9/14/10); 51 So.3d 737, 742, citing Onstott v. Certified Capital Corps., 05-2548 (La.App. 1 Cir. 11/3/06); 950 So.2d 744. Only if prescription is evident from the face of the pleadings will the plaintiff bear the burden of showing an action has not prescribed. Id. In the absence of evidence, the objection of prescription must be decided upon the properly pleaded material allegations of fact alleged in the petition, and those alleged facts are accepted as true. Id. Appellate courts strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished when considering a peremptory exception of prescription. Id.

La. R.S. 23:1209(A) provides, in pertinent part,

(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

The 1008 compensation claim, which was filed on July 20, 2009, alleges that Mr. Gregoire’s injury occurred on September 1, 2008 — the date that Hurricane Gustav made landfall. Thus, it is evident from the face of the 1008 compensation claim that Mr. Gregoire’s action has not prescribed because the claim was filed within one year of the alleged date of injury. The Department argues, however, that the injury occurred on August 29, 2005. We disagree.

|fiAs Professor Johnson explained,

[t]he employee who is abnormally susceptible to disability may be so for a variety of reasons. A preexisting disease or condition may help to bring about the actual injury by accident to such a worker, when it would not do so to a worker without such a preexisting deficiency. The most frequent example of this kind of case is the worker with some form of heart deficiency or other cardiac problem which renders him particularly susceptible to a heart attack. Such an attack has been treated as the “accident” which disables him (if in fact he becomes disabled); [however] a worker without such a deficiency might never suffer such an “accident” and would thus not become disabled. (Emphasis Added).

H. Alston Johnson, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 232 (5th ed.2010).

In this case, the events that occurred during the aftermath of Hurricane Katrina were simply the preexisting deficiency that made Mr. Gregoire more susceptible to post traumatic stress disorder. And being trapped inside his vehicle on September 1, 2008, when Hurricane Gustav made landfall, was the “accident” that disabled him. Although Mr. Gregoire continued to work until March of 2009, he testified that memories of Hurricane Katrina resurfaced on September 1, 2008. A claimant who suffers from a pre-existing medical condition .is entitled to benefits if “the accident aggravated, accelerated or combined with the pre-existing condition to produce disability.” Sevin v. Chevrolet, 08-1362, p. 9 (La.App. 1 Cir. 4/30/09), 24 So.3d 879, 885. Thus, Mr. Gregoire’s predisposition to post-traumatic stress disorder manifested itself into a disabling injury on September 1, 2008. We, therefore, find that the 1008 compensation claim was timely filed within one year of the accident. The action, therefore, is not prescribed. The judgment appealed from is reversed, and the case is remanded to the district court.

REVERSED AND REMANDED

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

hi, respectfully, dissent from the majority opinion for the following reasons.

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. London Towne Cond. Homeowner’s Ass’n v. London Towne Co., 06-401 (La.10/17/06); 939 So.2d 1227, 1231. A trial court is granted wide discretion in assessing the probative value of evidence and is free to accept or reject, in whole or in part, the testimony of any witness. In re Succession of Lawler, 42,940 (La.App. 2 Cir. 3/26/08); 980 So.2d 214, 218. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. London Towne Co., 939 So.2d at 1231. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

LSA-R.S. 23:1209 provides,

A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Emphasis added.]

Where the employee suffered from a pre-existing medical condition, he may still prevail if he proves that the accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Peveto v. WHC Contractors, 630 So.2d 689, 691 (La.1994).

In the case at bar, the trial court found Mr. Gregoire’s 1008 claim had prescribed. After review of the record, I cannot find the trial court was manifestly erroneous in its ruling.

During the hearing on the peremptory exception of prescription, it was admitted that the allegation on Mr. Gregoire’s 1008 form that the aggravation he suffered was a result of Hurricane Ike was a clerical error and should have listed Hurricane Gustav. However, the attorney noted that the date of September 1, 2008 on the form was the correct date of the aggravation of the injury. Also during the hearing, Mr. Gregoire’s attorney asserted there was no dispute that the underlying psychological trauma that he sustained arose after Hurricane Katrina, and the events of Hurricane Gustav were the triggers that aggravated the psychological trauma of Hurricane Katrina. Mr. Gre-goire testified to the same allegations in his Isdeposition. Additionally, Dr. William Brasted, a clinical psychologist, testified in his deposition that Mr. Gregoire’s post-traumatic stress disorder related back to Hurricane Katrina, and the trauma from that event was “buried” by Mr. Gregoire. Everyone involved in this matter agrees that Hurricane Katrina was the “accident,” and Hurricane Gustav was the “aggravation” of Hurricane Katrina.

Hurricane Katrina occurred on August 29, 2005, which is the alleged date of the accident when Mr. Gregoire experienced his psychological trauma. According to LSA-R.S. 23:1209(A)(3), Mr. Gregoire had to file his claim within one year from the time the injury developed; however, his claim for payment would be forever barred if the proceeding had not begun within two years from the date of the accident. Mr. Gregoire’s injury developed on September 1, 2008, and he filed his 1008 claim on July 20, 2009, which was more than three years after the accident occurred. Despite the fact the effects of his psychological trauma were not exacerbated until the events of Hurricane Gustav, I opine that Mr. Gre-goire was barred from filing a workers’ compensation claim for payment because the workers’ compensation proceeding did not begin within two years of the date of his accident.

Therefore, because the appellate court cannot reweigh or substitute its own factual findings, I would find that the trial court did not err in finding Mr. Gregoire’s 1008 claim was prescribed. Accordingly, I would affirm the trial court’s judgment.

      . Mr. Gregoire inadvertently stated Hurricane Ike when it should have been Hurricane Gustav.