author: GROSS, J.

text:
    Shawn Alvin TRACEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3565.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 14, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

After a jury trial, Shawn Tracey was convicted of possession of more than 400 grams of cocaine, fleeing and eluding, driving while license revoked as an habitual offender, and resisting arrest without violence. We write to address his contention that the circuit court erred in denying his motion to suppress evidence derived from “real time” or prospective cell site location information (“CSLI”). We hold that there was no Fourth Amendment violation, because law enforcement used real time CSLI to track Tracey’s location only on public roads. Although there was a violation of a provision of Chapter 934, the exclusionary rule is not an authorized remedy to address the violation.

In October, 2007, Detective Jason Hen-drick of the Broward County Sheriffs Office filed an application for an order authorizing the installation and use of a pen register and a trap and trace device regarding Tracey’s cell phone. “Basically, a pen register is a device or process which records the telephone numbers of outgoing calls; the trap and trace device captures the telephone numbers of incoming calls.” In re Application for Pen Register and Trap/Trace Device with Cell Site Location Auth. (Smith), 396 F.Supp.2d 747, 749 (S.D.Tex.2005) (citation omitted). The application stated that Tracey was “the subject of a criminal [narcotics] investigation” and that a pen register and trap and trace device “would be an important investigative tool to record the inbound and outbound dialed digits” from Tracey’s phone number, in order to “identify possible co-conspirators.” This was the application’s only factual allegation:

A DEA Confidential Source (CS) indicated that Shawn Alwin Tracey obtains multiple kilograms of cocaine from Bro-ward County, for distribution on the West Coast of Florida. Furthermore, the CS contacts Shawn Tracey on the listed Metro PCS telephone number.

The application was prompted by a Drug Enforcement Administration agent who approached Hendrick with information and asked whether the two departments wished to work together in the investigation of Tracey and a cohort, Guipson Vilbon. Based on information he had received from a New York agent, the DEA agent contacted the informant, who told him that he had made trips to pick up drugs for Tracey in the past and that Tracey was currently incarcerated. The agent had no prior experience with the informant. The application for the pen register and trap device did not mention the collection of real time cell site location information.

The circuit court granted the application for a pen register and trap and trace device. In addition, although there was no request for it in the application, the order directed the cell phone company to provide the sheriffs office, “[i]n accordance” with 18 U.S.C § 2703(d), “historical Cell Site Information indicating the physical location of cell sites, along with cell site sectors, utilized for the calls.... ” The order did not address prospective or real time CSLI. This language in the order called for the collection of a different type of information than incoming and outgoing telephone numbers. To appreciate this difference, it is necessary to have some familiarity with cell phone technology.

Various federal magistrates have described the technology, but we find this explanation by Judge Lenihan to be the most compact:

Cellular telephone networks divide geographic areas into many coverage areas containing towers through which the cell phones transmit and receive calls. Cell phones, whenever on, now automatically communicate with cell towers, constantly relaying their location information to the towers that serve their network and scanning for the one that provides the strongest signal/best reception. This process, called “registration”, occurs approximately every seven seconds.
As we change locations, our cell phones automatically switch cell towers. Cellular telephone companies “track the identity of the cell towers serving a phone”. When a call is received, a mobile telephone switching office (“MTSO”) gets the call and locates the user based on the nearest tower; the call is then sent to the phone via that tower. This process works in reverse when the user places a call. In urban areas, where towers have become increasingly concentrated, tracking the location of just the nearest tower itself can place the phone within approximately 200 feet. This location range can be narrowed by “tracking which 120 degree ‘face’ of the tower is receiving a cell phone’s signal.” The individual’s location is, however, most precisely determinable by triangulating the “TDOA” or “AOA” information of the three nearest cellular towers. Alternatively, the phone can be tracked extremely accurately — within as little as 50 feet-via the built-in global positioning system (“GPS”) capabilities of over 90% of cell phones currently in use. [Cellular service providers] store cell tower registration histories and other information ... [and] now compile and retain extensive personal location information on their subscribers and the cell phones in use.

In re the Matter of the Application of the United States (Lenihan), 534 F.Supp.2d 585, 589-90 (W.D.Pa.2008) (internal citations omitted), vacated,, In the Matter of the Application of the United States, 620 P.3d 304 (3d Cir.2010); see also Smith, 396 F.Supp.2d at 750-51.

In December, 2007, phone calls between Tracey and an informant indicated that Tracey would be coming to Broward County to pick up drugs for transport back to the Cape Coral area, where Tracey then resided. Monitoring the location of the cell phones of Tracey and Vilbon using real time CSLI, officers tracked Tracey’s eastward trip across Florida. Tracey and Vil-bon called each other ten times before Tracey arrived in Broward County. Officers set up surveillance at Vilbon’s known stash houses, where the officers believed drugs were being stored. Vilbon’s cell phone moved to a location near one of them. Tracey’s cell phone was in almost continuous use and was tracked to the same general area. Officers determined that a GMC Envoy was from Florida’s west coast; Tracey was identified as its driver. The officers were aware that Tracey’s license was suspended. He was stopped and arrested for that offense. A search uncovered a kilogram brick of cocaine in the Envoy; officers stopped Vil-bon and found $23,000 in cash in his car.

Before trial in this case, Tracey moved to suppress evidence derived from real time, prospective CSLI obtained from his cell phone. He distinguished historical cell site information and explained that real time cell site information is a subset of prospective cell site information, which, he contended, requires a warrant. Tracey raised three arguments. First, officers had acquired an order to record incoming and outgoing phone numbers under “pen register and trap and trace” statutes; law enforcement exceeded the authority of the pen register order, because the detective had sought only to “record inbound and outbound dialed digits” and did not seek to track the phone’s location, in either historical or real time. Second, the pen register statutes do not authorize acquisition of real time cell site information. Third, a showing of probable cause is required to acquire CSLI, and the affidavit filed in support of the pen register application did not establish probable cause.

The trial court found that (1) Tracey had standing to challenge the order and surveillance of his cell phone, but did not have standing to challenge the order and surveillance of Vilbon’s cell phone; (2) the application for the order relating to his phone set forth a sufficient legal basis for the installation and use of a pen register, but did not set forth a sufficient factual basis to issue a warrant; and (3) officers had used the cell phone as a tracking device to locate Tracey behind the wheel of the vehicle:

While there was evidence that the investigators had knowledge of at least one “stash house” used by the Defendant and located within a few blocks of where he was arrested, the State was unable to establish that investigators stationed in the area stumbled upon the Defendant; rather, the evidence demonstrated that it was by using the cell phone as a tracking device that they were able to locate him behind the wheel of a GMC Envoy at the intersection of U.S. 441 and Miramar Parkway.

The state argued that Tracey had been seen committing a crime on a public street, which gave them an independent reason to stop him. The trial court ruled that the pen register application had not established probable cause, but that, because Tracey had been seen committing an independent crime on a public street where he had no reasonable expectation of privacy, the Fourth Amendment did not require suppression of the evidence acquired after the arrest for that independent crime. The court denied Tracey’s motion to suppress.

Since it concerns the government’s tracking of an individual’s location on public roads, this case does not involve a Fourth Amendment violation. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), the Supreme Court confronted the government’s war-rantless installation of a beeper in a can of chloroform that allowed government agents to follow “an automobile on public streets and highways.” Id. at 281, 103 S.Ct. 1081. The Court held that the monitoring of beeper signals “did not invade any legitimate expectation of privacy,” so that “there was neither a ‘search’ nor a ‘seizure’ within the contemplation of the Fourth Amendment.” Id. at 285, 103 S.Ct. 1081. The Court explained:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the driver of the monitored vehicle] trav-elled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Id. at 281-82, 103 S.Ct. 1081. The Court found it significant that the monitoring of the beeper “revealed no information that could not have been obtained through visual. surveillance.” United States v. Karo, 468 U.S. 705, 707, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (explaining the holding in Knotts). In Mitchell v. State, 25 So.3d 632, 635 (Fla. 4th DCA 2009), we applied Knotts to hold that historical cell site information “does not implicate Fourth Amendment protections.”

Here, the monitoring of the CSLI occurred only when Tracey’s vehicle was on public roads, where it “could have been observed by the naked eye,” so no Fourth Amendment violation occurred during Tracey’s journey across Florida to Fort Laud-erdale. Karo, 468 U.S. at 714, 104 S.Ct. 3296; see also Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (holding that using a pen register on a phone did not violate the Fourth Amendment because a phone user has no reasonable expectation of privacy in the information provided to a third party by his voluntary use of a phone); United States v. Forest, 355 F.3d 942, 951 (6th Cir.2004) (observing that government violated no legitimate expectation of privacy by using real time CSLI to track defendant’s location, because “DEA agents could have obtained the same information by following [suspect’s]' car”), vacated on other grounds, Garner v. United States, 543 U.S. 1100, 125 S.Ct. 1050, 160 L.Ed.2d 1001 (2005); United States v. Navas, 640 F.Supp.2d 256, 263-63 (S.D.N.Y.2009).

We acknowledge that a compelling argument can be made that CSLI falls within a legitimate expectation of privacy. “[I]t is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” In re the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 317 (3d Cir.2010) (emphasis in original). Therefore, “ ‘[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.’ ” Id. at 317-18 (quoting ami-cus brief). Location information can be “extraordinarily personal and potentially sensitive,” revealing “precisely the kind of information that an individual wants and reasonably expects to be private.” Lenihan, 534 F.Supp.2d at 586 n. 6.

Technology evolves faster than the law can keep up, extending the search capabilities of law enforcement and transforming our concept of privacy. Cell phones are ubiquitous, and some consumers embrace them as personal tracking devices. While some cell phone users share their location through geographic “tagging” on social networking platforms, others are not comfortable broadcasting their real-time location, and may maintain an expectation of privacy with respect to their location in private areas. However, on search and seizure issues, we are bound to follow United States Supreme Court precedent interpreting the Fourth Amendment. Art. I, § 12, Fla. Const. Under the current state of the law expressed in Knotts and Karo, a person’s location on a public road is not subject to Fourth Amendment protection.

Because much non-content based electronic surveillance falls outside the Fourth Amendment, most regulation of it has been by statute. “The basic contours of electronic surveillance law were fixed by the Electronic Communications Privacy Act of 1986.” (“ECPA”). Smith, 396 F.Supp.2d at 751. The ECPA consists of three titles. Title I amended the 1968 federal wiretap statute; among other things, it included provisions concerning mobile tracking devices, codified at 18 U.S.C. § 3117. Title II created a new chapter of the criminal code dealing with access to stored communications and transaction records, codified at 18 U.S.C. § 2701 et. seq. This portion of the statute, commonly known as the Stored Communications Act (“SCA”), “authorizes government access to stored communications in the hands of third party providers.” Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 28.6 (updated June 2011). The SCA “categorizes different types of stored communications (information) and what the government must do to obtain access to those different types of information.” Id. Title III of the ECPA covers pen registers and trap/trace devices and is codified at 18 U.S.C. §§ 3121-27. Judge Smith has succinctly summarized “the basic architecture of electronic surveillance law erected by the ECPA”:

This statutory scheme has four broad categories, arranged from highest to lowest legal process for obtaining court approval:
• wiretaps, 18 U.S.C. §§ 2510-2522 (super-warrant);
• tracking devices, 18 U.S.C. § 3117 ( [Fed.R.Crim. P.] 41 probable cause);
• stored communications and subscriber records, 18 U.S.C. § 2703(d) (specific and articulable facts);
• pen register/trap and trace, 18 U.S.C. §§ 3121-3127 (certified relevance).

Smith, 396 F.Supp.2d at 753.

Florida has enacted statutory counterparts to the provisions of the ECPA and located them in Chapter 934, Florida Statutes (2009), entitled “Security of Communications.” Section 934.32 allows the installation of a mobile tracking device upon certification by the government that “the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by the investigating agency.” § 934.42(2)(c), Fla. Stat. (2009). Similar to the SCA, section 934.23 allows a law enforcement officer to require a “provider of electronic communication service” to “disclose a record or other information pertaining to a subscriber of such service not including the contents of a communication,” when, among other things, the officer “[ojbtains a court order for such disclosure” by offering “specific and articulable facts showing that there are reasonable grounds to believe ... the records of other information sought are relevant and material to an ongoing criminal investigation.” §§ 934.23(4)(a)2. & (5), Fla. Stat. (2009). Mirroring Title III, sections 934.31-934.34 require a court order under section 934.33 “to install or use a pen register or a trap and trace device.” § 934.31, Fla. Stat. (2009).

Federal electronic surveillance law preempts the field under Congress’ power to regulate interstate communications. See State v. Rivers, 660 So.2d 1360, 1362 (Fla.1995). The Florida Supreme Court has written that

[t]he federal wiretap statute preempts the field of wiretapping and electronic surveillance and limits a state’s authority to legislate in this area. It allows states to adopt similar procedures authorizing state law enforcement personnel to intercept communications in a criminal investigation. Although states are free to adopt more restrictive statutes, they cannot adopt less restrictive ones.

State v. Otte, 887 So.2d 1186, 1187-88 (Fla. 2004). Title III of the Omnibus Crime Control and Safe Streets Act of 1968 “preempted the field of the interception of wire communications.” Rivers, 660 So.2d at 1362. The 1986 ECPA amended the 1968 Act and added new provisions. Congress’ intent to preempt the field of electronic surveillance as expanded by the ECPA is evident in the statutory language permitting states to access the information that is the subject of the legislation. See 18 U.S.C. § 3122(a)(2) (allowing a state “investigative or law enforcement officer” to make application for a pen register order to a “court of competent jurisdiction of such State,” “[ujnless prohibited by state law”); 18 U.S.C. §§ 2703(c), 2711(4) (allowing a “governmental entity” to obtain information from an electronic communication service and defining “governmental entity” as including “any State or political subdivision therof.”).

In Mitchell v. State, we held that law enforcement could obtain historical CSLI, by complying with 18 U.S.C. § 2703(c), and its state counterpart, section 934.23, Florida Statutes (2009). 25 So.3d at 634-35. We concluded that historical CSLI was “a record or other information pertaining to a subscriber or customer” of an “electronic communication service” within the meaning of 18 U.S.C. § 2703(c) and section 934.23(4)(a). Id. To obtain an order for historical CSLI, law enforcement is required to “£[ ... ] offer specific and articulable facts showing that there are reasonable grounds to believe the [ ... ] records of other information sought are relevant and material to an ongoing criminal investigation.’ ” Id. at 634 (quoting § 934.23(5), Fla. Stat. (2009), which “mimics” 18 U.S.C. § 2703(d)). This is a higher standard than the “certified relevance” required for a pen register, but still less than probable cause.

Recently, the Third Circuit became the first federal court of appeal to hold that the government could obtain historical CSLI by satisfying the “specific and artic-ulable” fácts standard of 18 U.S.C. § 2703(d). In re the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d at 313. The court found no evidence that CSLI allows persons to be tracked precisely enough to place them at home, so there was no violation of privacy interests under Knotts and Karo. Id. at 312-13. The court concluded that probable cause and a warrant were not required by the Fourth Amendment in order for the government to obtain historical CSLI. Id.

There is some basis in federal law to support Tracey’s contention that, unlike historical CSLI, an order authorizing real time CSLI requires, as a precondition, the elevated showing of probable cause, and not the lower standard of “specific and articulable facts.” There is “a disagreement among courts over the standard to be applied when the government requests access to prospective or ‘real time’ cell site information.” In re Applications of the U.S. for Orders Pursuant to Title 18 U.S.C. § 2703(d), 509 F.Supp.2d 76, 78 (D.Mass.2007); see also In re the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d at 310 n. 6 (acknowledging the disagreement between magistrate and district court judges over the government’s ability to obtain prospective CSLI). Some courts have authorized disclosure on a showing of “specific and articulable facts” under the pen register statute and section 2703. Other courts have required a showing of probable cause.

We need not decide in this case whether prospective CSLI is subject to a probable cause requirement, because the state failed to meet even the less stringent standard required by section 934.23(5) — the application failed to offer “specific and articulable facts” to show that CSLI was “relevant and material to an ongoing criminal investigation.” In fact, the application did not even seek a court order for CSLI, only a pen register and a trap and trace. The application merely stated that a “Confidential Source (CS) indicated that [Tracey] obtains multiple kilograms of cocaine from Broward County for distribution on the West Coast of Florida” and that the “CS contacts” Tracey at a certain phone number. As Tracey notes in his brief, this vague language “does not explain the origin of the informant’s information; whether it was based on first-hand knowledge or was merely hearsay obtained from some other source; when [Tracey] was supposed to have last engaged in the alleged criminal conduct; when he was supposed to again engage in the alleged criminal conduct; or how the cell phone was involved in the transactions.” The statement in no way demonstrated how the confidential source was reliable. See generally State v. Maynard, 783 So.2d 226, 230 (Fla.2001); Dozier v. State, 766 So.2d 1105 (Fla. 2d DCA 2000).

To say that the state violated section 943.23 in obtaining real time CSLI does not mean that an exclusionary rule applies to prevent the state from using any “evidence derived” from the violation. § 934.06, Fla. Stat. (2009). Under federal law, suppression of evidence is not a remedy for violations of the ECPA. See United States v. Forest, 355 F.3d at 949; United States v. Smith, 155 F.3d 1051, 1056 (9th Cir.1998); United States v. Navas, 640 F.Supp.2d 256, 262-63 (S.D.N.Y.2009), reversed on other grounds, 597 F.3d 492 (2d Cir.2010). “[T]he Stored Communications Act expressly rules out exclusion as a remedy; § 2708, entitled ‘Exclusivity of Remedies,’ states specifically that § 2707’s civil cause of action and § 2701(b)’s criminal penalties ‘are the only judicial remedies and sanctions for violations of the Stored Communications Act. 18 U.S.C. § 2708.” Smith, 155 F.3d at 1056 (emphasis in original).

Similarly, under Florida law, the exclusionary rule is not a remedy for violations of section 934.23. Section 934.28, Florida Statutes (2009) provides:

The remedies and sanctions described in ss. 934.21-934.27 are the only judicial remedies and sanctions for violation of those sections.

The criminal penalties of section 934.21 and the civil remedy provided in section 934.27 are the only remedies authorized for a violation of section 934.23. Application of the exclusionary rule is not an option authorized by the statute.

For these reasons, the trial court correctly denied the motion to suppress, even though law enforcement relied on real time CSLI to locate Tracey without complying with Chapter 934. We affirm the judgments of conviction.

STEVENSON and GERBER, JJ., concur.

      . A "pen register” is defined by Chapter 934 as "a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” § 934.02(20), Fla. Stat. (2009).

      . A "trap and trace device” is defined by Chapter 934 as "a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” § 934.02(21), Fla. Stat. (2009).

      .The application also sought an order regarding Guipson Vilbon’s cell phone; Vilbon was arrested at the same time as Tracey but was not prosecuted.

        . See Adam Koppel, Note, Warranting a Warrant: Fourth Amendment Concerns Raised by Law Enforcement’s Warrantless Use of GPS and Cellular Phone Tracking, 64 U. Miami L. Rev. 1061, 1086-89 (2010).

      . Tide III of the Omnibus Crime Control and Safe Streets Act of 1968. Pub. L. No. 90-351, 82 Stat. 212 (codified at 18 U.S.C. §§ 2510-20) (the "Wiretap Act”).

      . CSLI would seem to be obtainable under the pen register statute, were it not for another statute which excepts information, like CSLI, that can be used to identify a person’s physical location. The pen register statute, 18 U.S.C. §§ 3121-3127, authorizes the installation of a pen register and trap and trace device based on “a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation.” § 3122(b)(2). The statute defines a "pen register” as a device that records, not only the numbers dialed on a phone, but also "dialing, routing, addressing, or signaling information” transmitted by the phone, § 3127(3), which could be construed to include CSLI.
      The Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C. §§ 1001-1100, requires telecommunications carriers to ensure that their systems are available for use by law enforcement as authorized by statute. Section 1002(a)(2), which requires carriers to ensure the availability of "call-identifying information,” contains an exception:
      [W]ith regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices ... such call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number) ....

        Id. Under section 1002(a)(2), in other words, the pen register statute is not enough, by itself, to authorize the disclosure of information that could reveal a defendant's physical location.

      . The Third Circuit also recognized the power of magistrates to require the government to show probable cause and obtain a warrant for CSLI. In re the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304, 319 (3d Cir.2010). The court observed that this was a power "to be used sparingly.” Id.

      . E.g., In re Application of the U.S. for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F.Supp.2d 202 (E.D.N.Y.2008); In re Application of the U.S. for an Order Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 411 F.Supp.2d 678 (W.D.La.2006); In re Application of the U.S. for an Order Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 433 F.Supp.2d 804 (S.D.Tex. 2006); Gorenstein opinion.

        . E.g., In re Application of the U.S. for an Order Authorizing the Use of a Pen Register, 2009 WL 159187 (S.D.N.Y.2009); In re Application of the U.S. for an Order Authorizing the Disclosure of Prospective Cell Site Information, 412 F.Supp.2d 947 (E.D.Wis.2006); In re Application for an Order Authorizing the Installation and Use of a Pen Register, 439 F.Supp.2d 456 (D.Md.2006); In re Application for Pen Register & Trap & Trace Device with Cell Site Location Auth., 396 F.Supp.2d 747 (S.D.Tex. 2005); In re Application of the U.S. for an Order Authorizing the Use of a Pen Register & Trap & Trace Device, 396 F.Supp.2d 294 (E.D.N.Y.2005). See also ECPA Reform and the Revolution in Location Based Tech's and Serv’s: Hearing Before the Comm, on the Judiciary and Subcomm. On the Constitution, Civil Rights, and Civil Liberties, 111th Cong. 3-4, Note 1, Exh. B (2010) (statement of Stephen Wm. Smith, U.S. Magistrate Judge), available at http://judiciary.house.gov/ hearings/pdf/Smithl 00624.pdf.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alcides GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1386.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 4, 2011.

      Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011)


text:
    MIAMI-DADE COUNTY, Petitioner, v. Alvio DOMINGUEZ, Jr., Respondent.
    No. 3D11-1567.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 5, 2011.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Lee Kraftchick, Assistant County Attorney, for petitioner.
    Mierzwa & Associates, P.A., and Matthew J. Mierzwa, Jr., and Bram A. Mara-vent, Lake Worth, for respondent.
    Before CORTEÑAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Miami-Dade County (“the County”) petitions this Court for certiorari review of a decision rendered by the appellate division of the circuit court (“circuit court”), which reversed a decision entered by the County Manager. Because we conclude that the circuit court’s decision is a clear departure from the essential requirements of law resulting in a miscarriage of justice, see Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2011), we grant the petition and quash the circuit court’s opinion.

Section 2-42(22) of the Miami-Dade County Code provides for the automatic suspension of a County employee who has been charged with a crime, and for an automatic forfeiture of his/her County position if tried, found guilty, and the conviction is not reversed. Additionally, section 2-42(22) specifies that any such person “shall not thereafter be eligible to any such service ... regardless of whether the person is placed on probation or given a suspended sentence.”

Alvio Dominguez, Jr., a County employee, was tried and found guilty of stealing thousands of dollars from the County by fraudulently obtaining reimbursement for tuition charges he never paid. His multiple convictions (sixteen counts) were subsequently affirmed on appeal. State v. Dominguez, 27 So.3d 782, 784 (Fla. 3d DCA 2010). Thus, the circuit court departed from the essential requirements of law by: (1) reversing the County Manager’s decision denying Dominguez’s request for an administrative hearing for the purpose of contesting his discharge from employment with the Miami-Dade Fire Rescue Department; and (2) reversing the termination of Dominguez’s employment because he received a “withhold of adjudication” as to all convictions. See Montgomery v. State, 897 So.2d 1282, 1285 (Fla. 2005) (specifying that a finding of guilt is a “conviction” even though adjudication of guilt is withheld); State v. Gazda, 257 So.2d 242, 243-44 (Fla.1971) (holding that “the term ‘conviction’ means determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court”); State v. Keirn, 720 So.2d 1085, 1087-88 (Fla. 4th DCA 1998) (finding that a defendant who “is found guilty by a jury has been ‘convicted’ ... even in the absence of an adjudication”) (citing Smith v. Bartlett, 570 So.2d 360, 361 (Fla. 5th DCA 1990)). We therefore grant the County’s petition, and quash the circuit court’s appellate opinion.

Petition granted; opinion quashed.


text:
    Epifanio CABRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1988.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Rehearing Denied Oct. 5, 2011.
    Ricardo Corona, Coral Gables, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    Ernest KING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1564.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Ernest King, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and SUAREZ, JJ.
   SUAREZ, J.

Ernest King seeks a belated appeal from his judgment of conviction and sentence. We affirm King’s convictions, but without prejudice for King to raise the issue of incorrect habitual offender priors and sentencing in a Florida Rule of Criminal Procedure 3.800 petition filed properly in the trial court.

King was charged in four separate cases with armed robbery with a firearm, and faced a life sentence for each. The State noticed its intent to seek habitual offender sentencing. The record shows that King accepted the State’s offer of a plea to twenty years in state prison with a ten-year mandatory minimum in all four cases, and for each mandatory minimum to be served concurrently. At that point, the State stepped in to prove that King had the requisite prior offenses to be sentenced as a habitual offender. King asserts that the cases the State used to prove his requisite prior offenses for habitual offender sentencing do not belong to Mr. King, but rather to a person named James Michael Collier. If so, King’s sentencing as a habitual offender is in question. The record before us does not appear to refute his claim. We affirm King’s convictions, but without prejudice so that he may raise this issue in the lower court via a properly filed rule 3.800 petition. The trial court then can consider the record and whether King was properly subject to habitual offender sentencing.

Affirmed.

      . This is not a belated direct appeal from a conviction, as Kang here asserts a garden variety post-conviction sentencing issue that should have first been raised in a 3.800 petition filed below. He thus is not entitled to counsel on post-conviction appeal.

      . F07-16570, F07-16589, F07-16751, F07-16568,


text:
    Osvaldo GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-937.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2011.
    Osvaldo Garcia, in proper person.
    Pamela Jo Bondi, Attorney General, Tampa, for appellee.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Osvaldo Garcia appeals from the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800. We reverse.

Garcia alleged below that he was sentenced illegally to consecutive minimum mandatory sentences for firearm use arising out of a single criminal episode. In 1999, Garcia raised this illegal sentencing issue in a petition mislabeled and filed as a Florida Rule of Criminal Procedure 3.850 petition, but the trial court denied the claim as legally insufficient and treated it as untimely filed under rule 8.850. This was not a determination on the merits under either rule 3.800 or 8.850. Garcia apparently did not appeal from that order.

Rule 3.800, however, allows a court to correct an illegal sentence “at any time.” Florida courts have held that the phrase “at any time” allows defendants to file successive motions under rule 3.800. See Davis v. State, 26 So.3d 647 (Fla. 2d DCA 2010); Raley v. State, 675 So.2d 170, 173 (Fla. 5th DCA 1996); Barnes v. State, 661 So.2d 71, 71 (Fla. 2d DCA 1995). While rule 3.800(a) does not prohibit successive motions, a defendant is not entitled to successive review of a specific issue that already has been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003); Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000). Although Garcia raised his claim of illegal mandatory minimum stacking in a previous postconviction motion, the claim was not addressed or resolved on the merits and it is therefore not “successive.”

The current order on appeal, however, suggested that the claim may be successive and that Garcia admitted to this in his current petition. The trial court then denied relief based on collateral estoppel. The record, however, does not indicate if the issue was ever considered and decided on its merits. See Pleasure v. State, 931 So.2d 1000, 1002 (Fla. 3d DCA 2006) (“For the bar of collateral estoppel to apply, the prior decision must have been on the merits.”); Williams v. State, 868 So.2d 1234, 1235 (Fla. 1st DCA 2004) (“[T]he trial court erred in denying the appellant’s claim as being barred by collateral estoppel as it is not clear from the record before this Court that the instant claims have ever been decided on the merits.”). Thus, collateral estoppel does not bar the appellant from challenging the stacking of mandatory mínimums that, without more record, appear to have been imposed for crimes arising out of a single episode.

We reverse and remand for the trial court to either correct Garcia’s sentences to reflect concurrent minimum mandatory sentences for the firearm offense, or to attach a record that conclusively refutes Garcia’s claim that the stacked minimum mandatory sentences are illegal and/or result in manifest injustice.

Reversed and remanded for further proceedings.

      . The general rule is that the imposition of consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes (2008), is improper where the offenses occurred during a single criminal episode. This rule holds unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim, which does not appear to be the case here.

      . This is consistent with the application of rule 3.800 across the Districts. See, e.g., Smith v. State, 685 So.2d 912, 912 (Fla. 5th DCA 1996) ("[Wjhile it may be correct that rule 3.800 do.es not prohibit successive motions, we hold that where, as here, a defendant raises an issue under rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another rule 3.800 motion”); accord Tisdol v. State, 823 So.2d 300, 301 (Fla. 3d DCA 2002); see also Jenkins v. State, 749 So.2d 527, 528 (Fla. 1st DCA 1999) (noting that a defendant may not raise the same illegal sentencing issue in successive postcon-viction motions); Price v. State, 692 So.2d 971, 971 (Fla. 2d DCA 1997) (noting that rule 3.800 "contains no proscription against the filing of successive motions” but that "a defendant is not entitled to successive review of a specific issue which has already been decided against him ”). In barring the filing of successive repetitive 3.800 motions, these courts essentially have applied collateral es-toppel principles, but every indication is that the prior ruling was on the merits, and not a summary denial of relief.

      . State v. McBride, 848 So.2d 287 (Fla.2003).


author: VILLANTI, Judge.

text:
    Harold A. TIRADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3345.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 2011.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Harold A. Tirado challenges the revocation of his community control, which was based on violations of conditions five and twelve of his community control. We affirm the revocation of community control based upon the violation of condition five but remand with instructions that the violation of condition twelve be stricken.

On November 5, 2009, the trial court signed an order placing Tirado on community control. Shortly thereafter, the State filed an affidavit alleging that Tirado had violated conditions five (by committing three new law violations) and twelve (by not remaining in his residence as required by his curfew). Following an evidentiary hearing, the trial court found that Tirado had violated both conditions of community control. Accordingly, the trial court revoked community control and sentenced Tirado to prison.

“A trial court may revoke a defendant’s probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.” Dundas v. State, 891 So.2d 1178, 1179 (Fla. 2d DCA 2005). Tirado concedes that the State established a willful and substantial violation of condition five. We agree and affirm the trial court’s finding that he violated condition five of his community control.

However, Tirado argues that the court erred in also finding a willful violation of condition twelve and that we should remand the case to let the trial court determine whether it would have revoked community control in the absence of a violation of condition twelve. We agree that the trial court’s finding of a violation of condition twelve should be stricken because no evidence was presented establishing a willful and substantial violation of curfew. Nevertheless, it is abundantly clear from the transcript of the revocation hearing that the trial court would have revoked Tirado’s community control based solely on his violations of condition five (three new law violations). See, e.g., Bernier v. State, 951 So.2d 21, 22 (Fla. 2d DCA 2007) (upholding revocation of probation order where record made it clear that the court would have revoked probation solely on the basis of a violation of a single condition of probation). Therefore, we affirm the order revoking community control but remand for the trial court to strike the finding of a violation of condition twelve.

Affirmed; remanded with instructions.

LaROSE and MORRIS, JJ., Concur.

      . It appears from the record that this was actually condition nine, not twelve, of probation.


text:
    Jeffrey R. HIRSCHKORN, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-3429.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Jeffrey R. Hirschkorn, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jamie Braun, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    Tavares A. McDUFFIE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4296.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.

      Tavares A. McDuffie, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and ROWE, JJ., Concur.


text:
    Jessica DICKERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4316.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Jessica Dickerson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    Jody M. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4352.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.
    Jody M. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., HAWKES and ROWE, JJ., concur.


text:
    Samuel J. DREAD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4451.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2011.

      Samuel J. Dread, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, LEWIS, and RAY, JJ., concur.


text:
    Euriell LAIDLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2053.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2011.
    Sheila Callahan, Assistant Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

At his second trial on two counts of armed robbery with a firearm and one count of aggravated assault with a firearm, Appellant sought to represent himself. The trial court conducted a thorough Far-etta hearing and, finding Appellant not competent to waive his right to counsel, denied the request. We review the court’s decision for abuse of discretion. Because the evidence in the record does not support the court’s finding, we reverse and remand, once again, for new trial.

In criminal prosecutions, the right to counsel and the right to represent oneself both arise from the Sixth Amendment. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a criminal defendant seeks to represent himself at trial, the court’s scope of inquiry is whether the defendant is “ ‘literate, competent, and understanding, and that he [is] voluntarily exercising his informed free will.’” State v. Bowen, 698 So.2d 248, 251 (Fla.1997) (quoting Faretta at 835, 95 S.Ct. 2525). “The test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to represent himself.” Brown v. State, 971 So.2d 270, 271 (Fla. 1st DCA 2008) (emphasis added). As the Supreme Court said in Faretta, “although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored” if he makes the choice fully informed of “the dangers and disadvantages of self-representation.” 422 U.S. at 834, 835, 95 S.Ct. 2525.

The record before us demonstrates Appellant was competent to choose to represent himself and was fully aware of the consequences of doing so. Appellant was 37 years old at the time of trial, had earned his G.E.D., did not have difficulty reading, was not under the influence of drugs or alcohol, and never had been treated for mental illness. He was steadfast in the belief that his lawyer was not sufficiently prepared to defend him at trial, and, after being told of all the pitfalls of self-representation, said to the court:

I understand that there are a lot of legalities that I may not know, that I may be disadvantaged to. But I also understand that I’m going to have six people over there that’s going to hear a trial, and they’re going to hear evidence. And you’re going to give them jury instructions, and they’re going to know that I’m [sic] only could be found guilty through and by evidence. So you know, I mean I’m going to win or I’m going to lose. But I’m not going to lose my life based on someone else not being properly prepared.... I know, you don’t know what it’s like to have a life sentence. I mean I went to trial for five hours, and it took ten minutes for you to sentence me to life. And that’s been going in my mind for those last four years. So that’s why if I’m going to lose trial, I’m going to be able to go back to prison and lay down and wear it; when I know I done did everything I could to earn my freedom.

Finding no evidence in the record suggesting Appellant was not competent to decide to represent himself, and ample evidence demonstrating Appellant fully understood the import and consequences of his decision, we conclude the trial court abused its discretion by denying Appellant’s request. Accordingly, we must reverse Appellant’s convictions and remand for new trial. If, on remand, Appellant exercises his right to self-representation at any point, the trial court must offer him representation at each subsequent crucial stage of the proceedings. See generally Traylor v. State, 596 So.2d 957 (Fla.1992); Monte v. State, 51 So.3d 1196 (Fla. 4th DCA 2011); Brown v. State, 45 So.3d 110 (Fla. 1st DCA 2010).

REVERSED and REMANDED.

WOLF, DAVIS, and MARSTILLER, JJ., concur.

      . See Laidler v. State, 10 So.3d 1136 (Fla. 1st DCA 2009).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . See Holland v. State, 773 So.2d 1065, 1069 (Fla.2000).

      .Our decision on this point renders moot Appellant’s second issue on appeal.

      . See Pasha v. State, 39 So.3d 1259, 1262 (Fla.2010) (error in denying defendant’s request to represent himself not subject to harmless error analysis).


text:
    Davis BEARDEN, Appellant, v. CITY OF JACKSONVILLE, et al., Appellees.
    No. 1D11-2164.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2011.
    Davis Bearden, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

The Court having determined that its jurisdiction to review the April 26, 2010, Final Order of Dismissal with Prejudice was not timely invoked, this appeal is hereby dismissed. The Motion to Amend or Correct Initial Brief, filed on June 10, 2011, is denied as moot.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


text:
    Carl L. CARR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2456.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2011.
    Carl L. Carr, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Carl L. Carr seeks belated appeal of judgment and sentence in case number 2010-CF-005861 in the Circuit Court in and for Duval County. He filed a timely motion to withdraw plea under Florida Rule of Criminal Procedure 3.170(0 and gave a notice of appeal to prison officials-for mailing within 30 days of denial of that motion. The notice of appeal, however, was not received either by this court or the circuit court. The State of Florida has not responded in opposition to this petition.

The petition is granted and Carl L. Carr, Jr., is granted belated appeal from judgment and sentence in the above-described case. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court to be treated as a notice of appeal. See Fla. RApp. P. 9.141(c)(6)(D).

The trial court is directed to appoint counsel to represent petitioner in the direct appeal if he qualifies for such an appointment.

PETITION GRANTED.

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


author: WELLS, Chief Judge.

text:
    STAND UP FOR ANIMALS, INC., Appellant, v. MONROE COUNTY, a political subdivision of the State of Florida, and Roman Gastesi, Jr., in his official capacity as County Administrator of Monroe County, Appellees.
    No. 3D11-316.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.

      Michael A. Bander and Paul B. Kunz, Miami, for appellant.
    Suzanne Hutton, Monroe County Attorney, Christine Limbert-Barrows, Assistant County Attorney and Robert B. Shillinger, Chief Assistant County Attorney, for ap-pellees.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Stand Up for Animals, Inc. (“SUFA”), the defendant below, appeals from a non-final order denying its motion to dissolve a prejudgment, ex parte injunction freezing the assets in two of its Florida bank accounts. Because a prejudgment asset-freeze is impermissible where, as here, the plaintiff has an adequate remedy at law, we reverse. See Lopez-Ortiz v. Centrist Sav. Bank, 546 So.2d 1126, 1127 (Fla. 3d DCA 1989) (recognizing that in order to obtain a prejudgment injunction freezing bank assets, the movant must establish “the likelihood of irreparable harm because of the unavailability of an adequate remedy at law” (quoting Oxford Int’l Bank, & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54, 56 (Fla. 3d DCA 1979))).

This action stems from a contract between Monroe County and SUFA pursuant to which SUFA was to provide animal control services in the Middle Keys. In the summer of 2010, while the parties’ contract was up for renewal, the County conducted a formal audit of SUFA.

During the audit process, the County auditor raised a number of issues concerning SUFA’s compliance with the contract, specifically claiming that SUFA was charging adoption fees beyond those approved by the County and keeping some of the fees that it had collected rather than remitting them to the County as purportedly required by the parties’ contract. Based on these determinations, the County initiated the instant action against SUFA seeking equitable and injunctive relief.

In conjunction with these claims, the County moved, ex parte, for a temporary injunction freezing the funds held in SUFA’s two Florida bank accounts for the purpose of preventing dissipation of those funds. The motion was granted and, although the order freezing SUFA’s accounts subsequently was modified to permit SUFA to withdraw money from one of the accounts to cover operating expenses, SUFA’s motion to dissolve the injunction altogether was denied. Because the County has an adequate remedy at law, we reverse.

It is well established that a prejudgment temporary injunction must be supported by evidence of “[a] clear legal right or interest in the subject matter of the suit, the likelihood of irreparable harm because of the unavailability of an adequate remedy at law, and a substantial likelihood of success on the merits.” Id. at 1127 (quoting Oxford Int'l, Bank & Trust, Ltd., 374 So.2d at 56). It is equally clear that “[ijrreparable harm for the purposes of an injunction is not established where the harm can be compensated for adequately by money damages.” Supreme Serv. Station Corp. v. Telecredit Serv. Ctr., Inc., 424 So.2d 844, 844 (Fla. 3d DCA 1982). “Even where the party seeking injunctive relief alleges that the opposing party may dissipate bank assets, a judgment for money damages is adequate and injunctive relief is improper, notwithstanding the possibility that a money judgment will be uncollectible.” Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000); see also M.I. Indus. USA Inc. v. Attorneys’ Title Ins. Fund, Inc., 6 So.3d 627, 629 (Fla. 4th DCA 2009); Konover Realty Assocs., Ltd. v. Mladen, 511 So.2d 705, 706 (Fla. 3d DCA 1987).

The County’s claims in this case, while sounding in equity, are no more than a claim for damages stemming from a breach of contract: Count I of the complaint seeks a declaration determining whether SUFA charged and collected fees in excess of that allowed by the parties’ contract and, if so, whether the County is entitled to any portion of the excess collected; Count II seeks an accounting to determine whether any fees collected by SUFA should have been paid to the County; and Count III seeks only to freeze SUFA’s bank accounts because “[o]n information and belief,” SUFA had been collecting fees in excess of that allowed and had been either misusing these funds or failing to remit them to the County as alleged in Counts I and II of the complaint. Because the allegations assert no more than a breach of contract compensa-ble by a damage award, no irreparable harm essential to secure injunctive relief freezing SUFA’s bank accounts could be demonstrated. See B.G.H. Ins. Syndicate, Inc. v. Presidential Fire & Cas. Co., 549 So.2d 197, 198 (Fla. 3d DCA 1989) (reversing an injunction entered based upon a claim of fraud, finding that the appellees’ “ability to obtain a money judgment against [the appellant] should a breach of contract be proven is an adequate remedy at law”); Mladen, 511 So.2d at 706 (finding that the plaintiff was not entitled to a prejudgment injunction in an action for money damages arising out of a contract).

We also reject the County’s argument that it was entitled to an order freezing SUFA’s bank accounts because the funds on deposit constitute the res of a trust. The County does not claim that SUFA’s bank accounts are trust accounts or that all of the funds deposited in them belong to or are being held for the benefit of the County. Nor does the County allege any basis on which a constructive trust could be imposed on the funds held in SUFA’s bank accounts. While it is well settled that a trial court may enter a pretrial injunction to protect the res of a constructive trust, “Florida courts will impress property with a constructive trust only if the trust res is specific, identifiable property or if it can be clearly traced in assets of the defendant which are claimed by the party seeking such relief.” Finkelstein v. Se. Bank, N.A., 490 So.2d 976, 983 (Fla. 4th DCA 1986). Because the res of a trust must be specifically identifiable, funds deposited into an account and comin-gled with other funds cannot ordinarily be the subject of an injunction. M.I. Indus. USA Inc., 6 So.3d at 628-29; BNB Constr., Inc. v. Nicon Constr., Inc., 13 So.3d 1107, 1108 (Fla. 4th DCA 2009) (quashing an order sequestering funds deposited in four bank accounts because the funds deposited in the accounts had not remained “sufficiently identifiable”). The County’s ex parte motion to freeze SUFA’s accounts confirms that these criteria for imposition of a constructive trust cannot be met:

The emergency, ex parte temporary injunction seeks to freeze the bank accounts in question until such time as an accounting can be conducted as to each account and it can be determined what portion of the funds contained in each account are due and owing to the County, and thereafter, the funds that belong to the County are transferred to the custody and control of the Clerk.

(Footnote omitted).

Because neither the existence of a trust nor any basis for imposing one has been demonstrated to exist, and because the County has an adequate remedy at law, the order on appeal is reversed with this matter remanded with directions to dissolve the injunction.


text:
    L.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2678.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 4, 2011.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

      Before WELLS, C.J., and RAMIREZ, JJ, and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

L.T., a juvenile charged with one count of providing false identification to a police officer in violation of section 901.36(1) of the Florida Statutes, appeals from an order denying his motion to dismiss and adjudicating him delinquent. While L.T. admits to having provided a false name to a law enforcement officer, he argues that he recanted well before any serious harm could occur. We agree and reverse.

The testimony at L.T.’s adjudicatory hearing was that on August 6, 2010, Miami Police Officer Alexander, while investigating an armed aggravated battery, spoke with the alleged victim and L.T.’s mother, who provided Officer Alexander with L.T.’s name and date of birth as well as a description of what he looked like, his tattoos, and what he was wearing when last seen. Police officers then proceeded to where they believed they might find L.T. and saw an individual who, based on the description given, they immediately knew to be L.T.:

Q Isn’t it a fact that you knew that this person was L.T. because he matched the description given to you, a detailed description given to you?
A The clothing initially. But at first I didn’t see his tattoos.
Q After looking at the tattoos, were you then able to identify this individual?
A Yes.

However, on questioning, L.T. told the officers his name was “William Clark.”

L.T. was then taken into custody. As he was being taken to the police car for transport, L.T. and the arresting officers passed by L.T.’s mother who commented “oh, they got him.” L.T. was read his Miranda rights and placed in the back seat of the police car. As the officers began filling out paperwork related to the arrest, L.T. provided his true identity.

At his trial for giving a false name to a law enforcement officer, L.T. argued that because he had informed the officers of his real name prior to any “serious harm,” he had successfully recanted. See A.A.R. v. State, 926 So.2d 463, 466 (Fla. 4th DCA 2006) (confirming that the common law recantation defense is available in a section 936.01 false name prosecution). The State maintained that the defense was untenable once L.T. was arrested. See L.J. v. State, 971 So.2d 942, 943-44 (Fla. 3d DCA 2007) (concluding that on the facts of that case once the defendant was arrested the policy reasons underpinning the recantation defense no longer applied). Because the record confirms that the officers knew L.T.’s true identity almost immediately and before he was arrested, no “harm” was incurred by L.T. not recanting until shortly after he was arrested. See P.P. v. State, 466 So.2d 1140, 1141 (Fla. 3d DCA 1985) (“The undisputed evidence shows that the juvenile, in fact, gave his correct birthdate to Officer Masterrer who, in turn, placed this date in the arrest report. Prior thereto, the juvenile did give technically “false” birthdates to the officer, but those dates were, in fact, retracted before the officer made out his arrest report. Just as in perjury prosecutions where a defendant may recant his intentionally false testimony prior to the final submission of the case, Jones v. State, 400 So.2d 12 (Fla.1981); Carter v. State, 384 So.2d 1255 (Fla.1980); Brannen v. State, 94 Fla. 656, 114 So. 429 (1927); State v. Snipes, 433 So.2d 653 (Fla. 1st DCA 1983), so, too, one accused of obstructing justice, as here, should be able' to retract any ‘false information’ before it is officially recorded or does any harm. The underlying policy in both such cases is first, to encourage witnesses to tell the truth to the authorities and, second, the correlative need to induce such witnesses to correct, without fear of prosecution, their prior falsehoods before they have done any harm.”).

We note that while an arrest may be a critical or essential factor in determining whether a false identification may be recanted, it is not alone determinative, and our decision in L.J. should not be read as so holding. In L.J., and the cases on which it relies in support of its holding, Fripp v. State, 766 So.2d 252 (Fla. 4th DCA 2000), and State v. Townsend, 585 So.2d 495 (Fla. 5th DCA 1991), the defendants’ identities were unknown to the officers at the time the false information was provided. In L.J., a truant, twice gave false names to police officers causing them substantial work trying to identify him before he was arrested. In Fripp, an officer was substantially impeded in determining whether a traffic violator had a valid driver’s license when twice given a false name. And, in Townsend, a trafile violator first refused to provide identification, then twice gave false identification before being arrested and then giving his real name.

In each of these cases, officers engaged in substantial efforts to ascertain the identity of the individuals involved before making an arrest and before the defendant recanted making the time of recantation in relation to the time of arrest the essential factor in determining whether this defense applied. See M.G. v. State, 989 So.2d 705, 708 (Fla. 1st DCA 2008), (holding that “the time of recantation in relation to the time of arrest is the essential factor in determining whether the affirmative defense of recantation applies”). Nothing similar occurred here. In this case, the officers knew L.T.’s identity almost immediately upon encountering him and the arresting officer testified that the false name given by L.T. impeded his investigation for about a second. On this record, L.T.’s motion to dismiss should have been granted.

The order under review is, therefore, reversed.


author: CONNER, J.

text:
    Ronald KETTERER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4261.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 12, 2011.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Ronald Ketterer appeals the denial of his motion to withdraw his plea and the resulting convictions and sentences. He argues that he was misadvised by trial counsel concerning the consequences of his plea and the trial court abused its discretion in denying his motion to withdraw his plea made prior to being sentenced. We agree and reverse.

Ketterer was charged with battery on a law enforcement officer, resisting arrest with violence, and obstructing service of a warrant. The state filed notice of its intent to seek imposition of a minimum mandatory sentence as a prison releasee reof-fender (PRR). Ketterer entered an open plea to the court upon the representation of his trial counsel that trial counsel would move the court for a downward departure from the sentencing guidelines. Trial counsel filed a motion for downward departure after Ketterer’s open plea was accepted by the trial court.

The plea was entered on one day, and sentencing was set for a different day. In advising Ketterer about the consequences of his plea, trial counsel forgot that one cannot ask for a downward departure from the sentencing guidelines for a PRR. During the plea colloquy, nothing was said about PRR sentencing by trial counsel, the state attorney, or the judge. Regarding sentencing, the judge specifically said during the plea colloquy:

Mr. Ketterer, the maximum penalty for Counts 1 and 2 is five years Florida State Prison, Count 3, one year in the Broward County jail, and it is an open plea to the Court. And your attorney has filed a motion for downward departure, but there is no guarantee what the Court will do. Do you understand?

The judge said nothing about a minimum sentence of five years, but the plea form states, “The minimum penalty is: [then handwritten:] 5 yrs. FSP.” However, the plea form also states, “I understand that if the Court accepts my plea to the charge(s) listed above, my sentence will be: [then handwritten:] open — Downward Departure.”

During the plea colloquy, trial counsel said there was one more thing he wanted to check before he filed the motion for downward departure, and he requested to come back another day for sentencing. At the very end of the plea hearing, the State said: “Just to let the Court know, he’s PRR on Count 2.” The parting comment by the State did not result in any changes to the plea colloquy by the trial court or defense counsel. Nothing in the record indicates that Ketterer understood at that time what “PRR” meant.

When Ketterer appeared for sentencing a month later, trial counsel made an oral motion to withdraw the plea. Trial counsel admitted on the record that he forgot a downward departure cannot be granted for a PRR and therefore misadvised Ketterer on the plea consequences. The trial judge thought she recalled that she had conducted an adequate plea colloquy, but in an abundance of caution, she decided to appoint conflict-free counsel to address the motion to withdraw the plea and set the matter for a hearing at a later date.

When the case came back for a hearing, conflict-free counsel announced on the record that he had reviewed the plea transcript, he was satisfied the plea was entered voluntarily, and he did not have the grounds to ask the court to withdraw the plea. The record reveals that no formal written motion to withdraw the plea was filed. Conflict-free counsel stated to the court: “It doesn’t meet the criteria to be able to withdraw the plea based on what’s in there even though the special public defender from the conflict office misad-vised him. This is not the forum or the type of motion necessary to do such an act.” (emphasis added). The trial judge stated shortly thereafter, “Okay. Then he’ll be sentenced to that and he can, you know, go forth on the 3.850 [post-conviction relief proceedings].”

Oral motions to withdraw a plea prior to sentencing are allowed. See Carter v. State, 22 So.3d 793 (Fla. 1st DCA 2009); Morales v. State, 973 So.2d 679 (Fla. 2d DCA 2008). A trial court’s denial of a motion to withdraw a plea is generally reviewed under an abuse of discretion standard. Wright v. State, 961 So.2d 1036 (Fla. 4th DCA 2007).

The trial court erred in this case by not granting the motion to withdraw plea for two reasons: 1) trial counsel acknowledged giving misadvice and the written plea form and plea colloquy supports that assertion of misadvice; and 2) the plea colloquy was defective because there was no mention of a minimum sentence, PRR sentencing, or the unavailability of a downward departure. Florida Rule of Criminal Procedure 3.170(f) provides: “The court ... shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn .... ” (emphasis added). It appears from the record good cause was shown. Motions to withdraw a plea prior to sentence “must be liberally construed in favor of the defendant, as the law favors a trial on the merits.” Rappoport v. State, 24 So.3d 1211, 1213 (Fla. 4th DCA 2009).

In Thornton v. State, 747 So.2d 439 (Fla. 4th DCA 1999), this court reversed the denial of a motion to withdraw plea based on findings that the trial court failed to inform the defendant during the plea colloquy of potential mandatory minimum penalties. Although in this case the written plea form contained a statement that the minimum penalty was five years, the same written plea form also said Ketterer could ask for a downward departure, which is not accurate. During the colloquy, the judge said nothing orally about a minimum sentence, and she orally said the defense would be asking for a downward departure, which is not legally permitted for someone subject to PRR sanctions. The judge never orally advised Ketterer that he was subject to PRR sanctions, and there was nothing in the written plea form to put him on notice that he faced PRR sanctions. It is true that at the very end of the plea hearing the State said, “Just to let the Court know, he’s PRR on Count 2.” However, there is nothing in the record to show that Ketterer would know what “PRR” meant. Thus, the plea colloquy in this case was deficient.

Ketterer also contends on appeal that the written sentence for resisting an officer with violence filed in this case imposes an illegal sentence of five years and a day, which the State concedes was error. We reverse the sentence on the resisting arrest charge because it imposes an impermissible time period. § 775.082(9)(a)3.d., Fla. Stat. (2008).

Reversed and remanded.

TAYLOR and HAZOURI, JJ., concur.


author: WELLS, Chief Judge. RAMIREZ, J.,

text:
    ROYAL CARIBBEAN CRUISES LTD., et al., Petitioner, v. Bjoern EIDISSEN, Respondent.
    No. 3D11-1726.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Mase Lara Eversole, Curtis J. Mase, Miami, and Valentina M. Tejera, for petitioner.
    David C. Appleby, Fort Lauderdale, for respondent.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

Royal Caribbean Cruises, Ltd. seeks certiorari review of an order granting Bjoern Eidisson’s motion to amend his complaint to add a claim for punitive damages. While we agree that the evidence adduced and proffered is legally insufficient to support a punitive damages claim, we deny the petition as we are without jurisdiction to address this determination on the merits. See Globe Newspaper Co. v. King, 658 So.2d 518, 519-20 (Fla.1995) (confirming that district court jurisdiction to review orders granting amendments to add punitive damage claims does not extend to reviewing the sufficiency of eviden-tiary determinations under section 768.72 of the Florida Statutes); Solis v. Calvo, 689 So.2d 366, 368 (Fla. 3d DCA 1997) (confirming that while certiorari review is appropriate to determine whether the procedural requirements of section 768.72 have been met, such is not so broad authority as to encompass review of the sufficiency of the evidence supporting a determination that a claim for punitive damages may be pled).

Certiorari is, therefore, denied.

RAMIREZ, J.,

(concurring).

I concur with the majority that the petition should be denied. In my view, the trial court followed the procedure required under Globe Newspaper Company v. King, 658 So.2d 518, 519-20 (Fla.1995) and Solis v. Calvo, 689 So.2d 366, 368 (Fla. 3d DCA 1997). We should stop there, without commenting on whether we agree or disagree that the evidence proffered was insufficient to support a claim for punitive damages. That is not the function of a certiorari petition at this stage, and furthermore, it is a comment with which I disagree.


text:
    Anner MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1927.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Alfonso Oviedo-Reyes, for appellant.
    Pamela Jo Bondi, Attorney General.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA2011).


text:
    Norberto CORDERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2100.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.
    Rehearing Denied Oct. 18, 2011.
    Ricardo Corona, Coral Gables, and Nina Tarafa, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., RAMIREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SHEPHERD, J.

text:
    K.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1590.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 2011.

      Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The defendant, K.D., a juvenile, was charged with committing grand theft of a motor scooter, resisting an officer without violence, and fleeing or eluding a law enforcement officer. K.D. was adjudicated delinquent for trespass in a conveyance, a lesser included offense of grand theft, and resisting an officer without violence, as charged. The trial court sentenced K.D. to probation. K.D. appeals his adjudication for trespass in a conveyance.

The trial court found K.D. guilty of committing a trespass in a conveyance as a permissive lesser included offense of grant theft. Well-established law precludes a finding of guilt on a lesser included offense where the charging document fails to explicitly allege all the elements of the lesser offense. See I.T. v. State, 694 So.2d 720, 724 (Fla.1997). Because the petition for delinquency in this case did not allege an essential element of the lesser included offense of trespass in a conveyance, to wit that K.D. willfully entered or remained in the motor scooter, his adjudication for trespass in a conveyance must be vacated. See id. at 724 (not excluding the possibility that a person could obtain or use a conveyance, as required in grand theft, without entering in it, as required in a trespass in a conveyance); L.F. v. State, 694 So.2d 840, 840-41 (Fla. 2d DCA 1997) (“Trespass in a conveyance is not a lesser included offense of grand theft of a motor vehicle. However, it may be a permissive lesser included offense if the elements are alleged in the accusatory pleading and supported by the evidence adduced at trial.”). We therefore reverse with directions to vacate the adjudication of delinquency on this count.


author: GERBER, J.

text:
    Kawuan L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3260.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Philip J. Massa, Regional Counsel, and Randall Berman, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

After consideration of the three arguments which the defendant raises in this appeal, we affirm the defendant’s convictions and sentence. We write to address only the defendant’s argument that the trial court committed fundamental error in giving the standard jury instruction on attempted voluntary manslaughter which contains language regarding the defendant “committing] an act which was intended to cause the death of’ the victim. We affirm on that argument consistent with our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (giving of the standard jury instruction on attempted voluntary manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder), rev. granted, 64 So.3d 1262 (Fla.2011). We certify conflict with Houston v. State, — So.3d -, 2011 WL 3518029 (Fla. 2d DCA 2011); Burrows v. State, 62 So.3d 1258 (Fla. 3d DCA 2011); Burton v. State, - So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011); and Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009).

Affirmed; conflict certified.

STEVENSON and TAYLOR, JJ., concur.


author: WARNER, J.

text:
    Clarence HENDERSON, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 4D09-4262.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, 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.
   WARNER, J.

During the closing argument in appellant’s trial for battery, the prosecutor made a comment to the effect that no one took the stand to contradict the state’s case. This was an improper comment, implicating the appellant’s Fifth Amendment rights. See Watts v. State, 921 So.2d 722, 724 (Fla. 4th DCA 2006) (where only the officer and the defendant were present during the incident and only the officer testified at trial, the prosecutor’s comment, “Did you hear anybody else testify to dispute the officer’s story?” was an impermissible comment on the defendant’s failure to testify); Smith v. State, 843 So.2d 1010, 1011 (Fla. 1st DCA 2003) (prosecutor’s comment in closing that “Nobody testified that he wasn’t the guy,” was an improper burden-shifting comment). Nevertheless, we conclude that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We affirm on all issues raised.

TAYLOR and CONNER, JJ., concur.


text:
    Kevin RENDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1355.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.
    Kevin Render, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 876 So.2d 1234 (Fla. 4th DCA 2004).

POLEN, CIKLIN and GERBER, JJ„ concur.