author: BENTON, C.J.

text:
    Daniel J. GLARY and Harrell & Harrell, P.A., Appellants, v. Jonathan B. ISRAEL; Glary & Israel, P.A.; The Jacksonville Bank; Harris, Guidi, Rosner, Dunlap, Rudolph & Catlin, P.A.; and Midtown Centre, L.L.C., Appellees.
    Nos. 1D10-3204, 1D10-3349.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Christopher V. Carlyle and Shannon McLin Carlyle of the Carlyle Appellate Law Firm, The Villages, for Appellant Daniel J. Glary; Bryan S. Gowdy and Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for Appellant Harrell & Harrell, P.A.
    Robert E. Warren of Volpe, Bajaba, Wickes, Rogerson & Wachs, Jacksonville, for Appellee Jonathan B. Israel; Michael G. Tanner and Thomas E. Bishop of Tanner Bishop, Jacksonville, for Appellee The Jacksonville Bank; Andrew K. Kantor of Brennan, Manna & Diamond, P.L., Jacksonville, for Appellee Glary & Israel, P.A. and Receiver John J. Schickel.
   BENTON, C.J.

Harrell & Harrell, P.A. (Harrell & Harrell) and Daniel J. Glary seek review of a nonfinal order directing them to transfer funds to the receiver appointed to wind up Glary & Israel, P.A. (Glary & Israeli’s affairs. We have jurisdiction of the appeal. See Fla. R. App. P. 9.030(b)(1)(B); 9.130(a)(3)(C)(ii). We reverse the portions of the order appellants challenge, because the trial court transferred disputed funds to the receiver without the benefit of any pleading alleging or evidence establishing the receiver’s right to the funds.

Through the end of 2005, the now defunct law firm of Glary & Israel represented workers’ compensation claimants, many of whom had signed contracts of representation with another law firm, Harrell & Harrell. (In January or February of 2006, Glary & Israel signed superseding contracts of representation with many of the Harrell & Harrell clients.) In March of 2006, Mr. Glary denied Jonathan B. Israel, co-founder of the firm, access to Glary & Israel’s files and to the office Glary & Israel had occupied. (The relationship between Mr. Glary and Mr. Israel had begun to deteriorate near the end of 2005 in the wake of disclosures that a bookkeeper had been embezzling.)

Mr. Israel began the present proceeding by filing a complaint seeking dissolution of Glary & Israel, an accounting of the firm’s assets, and the appointment of a receiver. The complaint sought no relief from Harrell & Harrell, and did not name Harrell & Harrell as a party. On November 1, 2006, the trial court appointed a receiver and directed the receiver to marshal all assets of Glary & Israel, by filing appropriate civil actions on behalf of the firm, if necessary.

When the lawsuit was filed, Glary & Israel had resolved approximately 100 cases in which settlement funds (including attorney’s fees) had not been received. The firm was also involved in approximately 180 other pending cases. Most of the clients in the ongoing cases eventually elected to be represented either by Mr. Glary, who became a principal in a newly formed law firm, Glary & Sacks, in May 2006; or by Mr. Israel, who went to work for Harris, Guidi, Rosner, Dunlap, Rudolph & Catlin, P.A. (Harris Guidi).

On February 8, 2007, the receiver filed a motion requesting that the trial court enter an order compelling Mr. Glary, Mr. Israel, Harrell & Harrell, and Harris Guidi to transfer “any and all monies of Glary & Israel” to the receiver. Harrell & Harrell opposed the motion on grounds the funds it held belonged to Harrell & Harrell, not to Glary & Israel, and on grounds that the trial court lacked jurisdiction to order Harrell & Harrell, as a nonparty to the action, to transfer disputed funds to the receiver. Harrell & Harrell argued that the receiver should first be required to file and serve a complaint against Harrell & Harrell alleging the legal and factual basis for the receiver’s claim to the funds. Mr. Glary opposed the transfer of funds to the receiver on the ground that Glary & Israel had forfeited any right to assert an attorney’s fee lien in contingency fee cases when it terminated representation for no reason attributable to its clients. Mr. Glary also argued that “before any assets that are disputed should be transferred to a receiver, a determination has to be made that those are, in fact, assets of’ Glary & Israel.

On May 8, 2008, Mr. Israel filed a motion for partial summary judgment. The motion sought a determination of whether any or all of the fees awarded in cases in which Mr. Israel or Mr. Glary succeeded Glary & Israel could be claimed by the receiver as assets of Glary & Israel. He argued that the fees held by Harrell & Harrell were assets of Glary & Israel, and that, although Harrell & Harrell might have a claim to a portion of the fees it held, it should stand in no better position than any other creditor of Glary & Israel. On October 15, 2008, the trial court entered an order on the motion, ruling that fees received from cases in which Glary & Israel had a retainer contract on or before April 11, 2006, were assets of Glary & Israel; and that all such fees should be divided between Mr. Glary and Mr. Israel in keeping with their shareholder agreement, after satisfying the law firm’s liabilities.

During a hearing held on December 22, 2009, the trial court stated its intention to enter an order dealing with all pending motions and addressing everyone’s interests in the “pots of money.” Counsel expressed concern that the trial court was proposing to rule on contested issues of fact without conducting an evidentiary hearing. On June 7, 2010, nevertheless, the trial court entered an order, without an evidentiary hearing, “Determining and Distributing Assets of Glary & Israel, P.A.” The trial court ordered Harrell & Harrell, Mr. Glary, Mr. Israel and Harris Guidi to deliver fees generated from “the old Glary [&] Israel cases after March 10, 2006” to the receiver. Mr. Glary and Harrell & Harrell were each ordered to deliver $274,549.20 to the receiver. Mr. Israel and Harris Guidi were ordered to deliver $314,035.54 to the receiver.

But a receiver has no greater right to property than the entity has whose property the receiver was appointed to marshal. See SouthTrust Bank of S.W. Fla., N.A. v. Krause, 677 So.2d 368, 370 (Fla. 2d DCA 1996). “[I]f a receiver wishes to obtain possession of property in the hands of a stranger to the suit, he must make that person a party or file a separate action against him.” Id. at 370 (citing First Nat’l Bank of Plano v. State, 555 S.W.2d 200, 203 (Tex.Civ.App.1977)).

The trial court denied Harrell & Harrell procedural due process in ordering it to transfer funds it claimed belonged to it without requiring the receiver (or any other party to the action) to plead and prove that the funds were assets of Glary & Israel. Even assuming the validity of the trial court’s order making Harrell & Harrell a party, no claim was stated against Harrell & Harrell. See Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246, 1248 (Fla. 4th DCA 1998) (“An order denies due process if it adjudicates an issue that was not presented by the parties or the pleadings.”).

The right to procedural due process includes the right to “a full hearing before a court having jurisdiction of the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and judicial findings based upon that evidence.” Brinkley v. County of Flagler, 769 So.2d 468, 472 (Fla. 5th DCA 2000). See also State Dep’t of Fin. Servs. v. Branch Banking & Trust Co., 40 So.3d 829, 833 (Fia. 1st DCA 2010) (quoting Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007)) (“ ‘[T]he constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard. The right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right to introduce evidence at a meaningful time and in a meaningful manner. It also includes the opportunity to cross-examine witnesses and to be heard on questions of law. The violation of a litigant’s due process right to be heard requires reversal.’ ”).

Ownership of the funds was clearly contested below. In directing that the funds at issue be transferred to the receiver, the trial court implicitly made findings based on disputed issues of fact, even if only as to the amount of certain fees. Both Harrell & Harrell and Mr. Glary placed the trial court on notice that there were factual issues — including the exact nature of the relationship between Glary & Israel and Harrell & Harrell, which clients actually signed contracts of representation with Glary & Israel, and when they did so— which necessitated an evidentiary hearing. Without an opportunity to present evidence on disputed issues of fact, Harrell & Harrell and Mr. Glary did not receive the procedural process and protections they were due.

Accordingly, the portion of the trial court’s order requiring Harrell & Harrell and Mr. Glary to transfer disputed funds to the receiver is vacated.

WETHERELL and ROWE, JJ., concur.

      . We do not disturb the order under review insofar as it establishes the priority of secured creditors’ liens.

      . After Mr. Israel brought suit, it appears, Harrell & Harrell collected attorney's fees from cases which had been settled before March or April of 2006; Harris Guidi collected fees from cases in which clients elected to be represented by Mr. Israel; and both Harrell & Harrell and Harris Guidi retained the fees they collected from former Glary & Israel clients in trust accounts. Fees collected in cases in which former clients of Glary & Israel elected to be represented by Mr. Glary or Glary & Sacks were not apparently kept in a trust account or otherwise separate and apart.

      .Judge Cole, the trial judge who initially presided over the case, agreed with this position, and counsel indicated an intention to make Harrell & Harrell a party. Neither the receiver nor Mr. Israel acted to bring Harrell & Harrell in as a party, however, perhaps in part because Harrell & Harrell filed its own declaratory action (only to take a dismissal on the eve of trial). On May 2, 2007, Harrell & Harrell filed an action seeking a declaratory judgment regarding ownership or entitlement to the funds it holds. It filed a notice of voluntary dismissal of the action on December 16, 2009.
      Later, when the successor judge was reminded that Harrell & Harrell was not a party to the action, the court ruled Harrell & Harrell would be permitted to participate with regard to the claims procedure, because the firm had filed a claim against Glary & Israel, but did not have the right to participate as a party.
      On June 7, 2010, however, in a separate order entered the same day as the order under review, the trial court granted the motion to intervene which Harrell & Harrell had filed on September 25, 2006, stating it was denying Harrell & Harrell's motion, filed October 26, 2006, to withdraw its motion to intervene. Harrell & Harrell actually filed a pleading on October 26, 2006, styled "Withdrawal of Motion to Intervene,” in which it gave "notice that it withdraws its Motion to Intervene.”
      Harrell & Harrell does not, however, argue on this appeal that the trial court erred in entering the order treating its withdrawal of motion to intervene as a motion to withdraw its motion to intervene and denying the same.

      . As to Glary & Sacks, Mr. Glary took the position that the trial court lacked jurisdiction over Glary & Sacks because no action had been filed against that firm. In the order under review, however, Glary & Sacks was not ordered to remit any funds to the receiver.

      . On December 17, 2008, the trial court entered an order establishing a claims adjudication procedure, which required each creditor of Glary & Israel to file a proof of claim and to set forth the priority of their claims. Harrell & Harrell and Mr. Glary, who have not appealed the order, submitted proofs of claim under protest.

      . Simultaneously with the directive to remit $274,549.20 to the receiver, the trial court purported to grant Harrell & Harrell’s motion to intervene, despite its withdrawal of the motion to intervene several years earlier. (Harrell & Harrell filed a motion to intervene on September 25, 2006, but withdrew the motion on October 26, 2006.) See Alger v. Peters, 88 So.2d 903, 906 (Fla.1956) ("It is so fundamental to our concept of justice that a citation of supporting authorities is unnecessary to hold that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and from which he has literally been excluded by the failure of the moving party to bring him properly into court.”); Norville v. Bellsouth Adver. & Publ'g Corp., 664 So.2d 16 (Fla. 3d DCA 1995) ("Entering a judgment against a nonparty is fundamental error.”); Chase v. Turner, 560 So.2d 1317, 1319 (Fla. 1st DCA 1990) ("[A] court cannot award judgment against someone who is not a patty to the action.”).

      . Mr. Glary also asserts on appeal that no pleading or lawsuit had ever been filed on behalf of Glary & Israel which sought the payment of any sum from him. But Mr. Glary was made a party to this action by the initial pleading, which sought an accounting of Glary & Israel’s assets. Mr. Israel asserted in the motion for partial summary judgment that Mr. Glary owed a continuing duty to protect the interests of former clients of Glary & Israel and that fees awarded in cases which were transferred to Mr. Glary should be transferred to the receiver. We reject Mr. Glaiy’s assertion that the trial court lacked subject matter jurisdiction over controversies between him, Mr. Israel, and Glary & Israel. Mr. Glary, too, however, was within his rights to insist that the receiver put on evidence to show any entitlement to disputed funds he claimed.

      . As the trial court recognized, this might require a case-by-case determination of the ownership of fees at issue.

      . Harris Guidi has apparently already remitted to the receiver the funds it was ordered to turn over; both Harris Guidi and Mr. Israel elected to comply with the order intended to bring the case to — or near — an end, rather than appealing.
      Because the order on appeal (although styled final order) is an interlocutory order, the trial judge may revisit any portion of the interlocutory order not challenged on appeal in the interest of justice. See AC Holdings 2006, Inc. v. McCarty, 985 So.2d 1123, 1125 (Fla. 3d DCA 2008) ("[A] trial court has inherent authority to reconsider and modify its interlocutory orders.”); Oldock v. DL & B Enter., Inc., 966 So.2d 484, 485 (Fla. 2d DCA 2007) (”[I]t is well established that a trial court may consider and modify interlocutory orders at any time until final judgment is entered.”). See also Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (noting that the doctrine of law of the case is " ‘limited to rulings on questions of law actually presented and considered on a former appeal,’ " (quoting U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983)) and that a "corollary of the law of the case doctrine is that a lower court is not precluded from passing on issues that 'have not necessarily been determined and become law of the case.' ” (quoting Greene v. Massey, 384 So.2d 24, 27 (Fla.1980))).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carlos MONTESINOS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D10-655, 3D10-656, 3D10-657.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.
    Rehearing and Rehearing En Banc Denied March 8, 2011.

      Carlos J. Montesinos, in proper person.
    Pamela Jo Bondi, Attorney General and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.850(b); Williams v. State, 689 So.2d 393, 395-96 (Fla. 3d DCA 1997).


author: WARNER, J.

text:
    T.L.T., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1907.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

T.L.T. appeals an order withholding adjudication but ordering probation on two counts of throwing a deadly missile into two different vehicles. We conclude that the evidence was legally insufficient to support one of the charges. Because the trial court treated the two together in determining T.L.T.’s guilt, and in the process clearly made a material factual error, we reverse.

The charges against T.L.T. arose from two separate incidents in which two women reported that their vehicles were struck by some objects thrown from a school bus. In the first incident, Felicia Patterson was in her mother’s vehicle and stopped at a red light next to a school bus on her right. She heard two big sounds, and two hands snatched back through the bus windows. She did not see any faces, nor did she see what was thrown, but the vehicle had a small dent in it which was not there before the incident.

The bus driver herself had observed T.L.T. throw something from the window but did not see what was thrown. She was about to call her dispatch when Ms. Patterson pulled up and stopped the bus. The bus driver then called the police who arrived and tried to determine who had thrown the object. The driver identified T.L.T. and the child sitting with him. Patterson testified that when the officer removed T.L.T. from the bus, T.L.T. and another student cursed at her, with T.L.T. saying that if he went to jail, he would “beat her a — .” The officer testified that T.L.T. was unruly when taken from the bus.

In the second incident, which occurred immediately after the Patterson incident, Rosalind Lindsay was sitting at a red light, going in the opposite direction of the bus. Traffic was slow, and as the bus passed by to her left, a small object hit her window. She looked down to see a Gatorade bottle bouncing on the ground. She did not see the object hit another vehicle. She then made a U-turn to try to catch the bus, which had already stopped.

At trial, another child testified that he had handed T.L.T. a small plastic Gatorade bottle which was empty. He did not see what T.L.T. did with the bottle. In addition, the state presented a video taken inside the bus during the incident. It showed children quite active on the bus. T.L.T. could be identified in the back, and the court indicated that it observed T.L.T. turning to the bus window twice and laughing, although T.L.T. could not be seen throwing anything out the window.

After the state presented its case, the defense moved for a judgment of dismissal, contending that the state’s evidence did not meet a prima facie case. The trial court denied the motion. The defense did not present any evidence, and the trial court then found that the state had proved its case. In making its findings, the court stated that the Gatorade bottle was full, when in fact the evidence showed that the bottle was empty. From the court’s discussion, it appears that the court concluded that the Gatorade bottle was involved in both incidents. It, however, withheld adjudication and placed T.L.T. on probation. He appeals.

The standard of review of a motion for judgment of dismissal in a juvenile case is the same as that for a judgment of acquittal in a criminal case. See J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003). A motion for judgment of acquittal pertains to the legal sufficiency of the state’s evidence. If the evidence, taken in a light most favorable to the state does not support a conviction, the motion must be granted. If the state establishes the existence of each element of the crime charged, then the motion must be denied. See State v. Rivera, 719 So.2d 335, 337 (Fla. 5th DCA 1998). The appellate court reviews a trial court’s denial of a motion for judgment of acquittal de novo. See Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004).

Where the evidence is circumstantial, a special standard applies. See State v. Law, 559 So.2d 187 (Fla.1989). A conviction cannot be sustained when the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, unless the evidence is inconsistent with any reasonable hypothesis of innocence. Id. at 188. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the trier of fact to determine. In order to survive a motion for judgment of acquittal, the state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but is required only to introduce substantial, competent evidence which is inconsistent with the defendant’s theory of events. Id. at 189. Once that threshold burden is met, it becomes the trier of fact’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence. Id.

The facts of this case show that two separate incidents occurred, even though the state and the trial court seemed to have treated this as one event involving a plastic bottle of Gatorade. Felicia Patterson’s car was struck while she sat at a stoplight next to the bus. Rosalind Lindsay’s car was struck as she passed the bus going in the opposite direction. Given that both vehicles were beside the bus, according to their drivers, when they were hit by the objects, the evidence was legally insufficient to prove that the same object hit both vehicles.

The state’s evidence, taken in the light most favorable to it, shows that another child on the bus handed T.L.T. an empty Gatorade bottle. The bus driver saw T.L.T. throw something out of the window, although the bus video does not show T.L.T. throwing anything. Ms. Lindsay identified the object that hit her vehicle as an empty Gatorade bottle. Therefore, we conclude that there was sufficient evidence, both direct and circumstantial, to satisfy the state’s burden as to the Lindsay incident, although the evidence showed that the bottle was empty, not full.

On the other hand, no evidence supports the state’s case that the defendant threw anything out of the window to dent the Patterson vehicle. No one saw anything thrown from the bus other than the empty Gatorade bottle which hit the Lindsay vehicle. No evidence placed anything but the bottle in T.L.T.’s hand. The evidence was legally insufficient to support this charge.

E.J. v. State, 554 So.2d 578 (Fla. 3d DCA 1989), on which T.L.T. relies, supports our conclusion that the state produced sufficient evidence to uphold the charge regarding the Lindsay vehicle but not the charge involving the Patterson vehicle. In E.J., E.J. verbally threatened the occupants of a car and when they began to drive away an object was thrown from the area where E.J. and seven other boys were gathered, denting the vehicle. The occupants of the vehicle did not see a rock in E.J.’s hand but did see him making a throwing motion. The appellate court explained that because no one saw the object thrown, it could not uphold the adjudication of E.J. for throwing a deadly missile. Similarly, in this case no one saw the object thrown which caused the dent in the Patterson vehicle. In contrast, as to the Lindsay vehicle, the state’s case showed that T.L.T. had possession of an empty Gatorade bottle, made a throwing motion outside of the bus, and an empty Gatorade bottle hit the Lindsay vehicle.

We thus reverse and remand to the trial court to vacate the sentence on the count of throwing a deadly missile into the Patterson vehicle, as the court had already withheld adjudication. As to the Lindsay vehicle charge, we affirm as sufficient evidence supports the adjudication. On remand, the court should reconsider the sentence on the remaining charge, as the elimination of the Patterson charge may affect the court’s judgment as to the propriety of the sentence, particularly because the trial court erroneously concluded that the evidence showed that T.L.T. had thrown a full bottle out of the bus window.

Reversed and remanded for further proceedings in accordance with this opinion.

POLEN and LEVINE, JJ., concur.

      . T.L.T. does not raise, as an issue on appeal, the question of whether an empty Gatorade bottle could constitute a deadly missile. We therefore do not address that issue.


text:
    Fernando AGUIRRE, Appellant, v. Irma AGUIRRE n/k/a Irma Marie Quintero, Appellee.
    No. 4D09-4812.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Rehearing Denied March 7, 2011.
    Fernando Aguirre, West Palm Beach, pro se.

      No appearance for appellee.
   PER CURIAM.

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

POLEN, CIKLIN and LEVINE, JJ., concur.


author: GROSS, C.J.

text:
    Vladimir EUGENE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-246.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Rehearing Denied Feb. 23, 2011.

      Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, C.J.

Vladimir Eugene was convicted of first degree murder and sentenced to life in prison. We affirm. We choose to address two of his arguments on appeal. First, he contends that the victim’s emails to him were inadmissible hearsay. Second, he argues that the trial court erred in allowing the jury to hear four statements made by interrogating detectives during questioning of Eugene which suggested their belief as to his guilt or “theory as to what happened.”

We provide a detailed review of the evidence to give better context to appellant’s arguments. The 21-year old victim, Kathy Pierre, lived with her family at a house in Miramar. On a July Sunday in 2005, the victim’s younger sister, Edna, woke up at 8:30 a.m. and got ready for work. She went into the victim’s room to get some lotion. Nothing seemed unusual and nothing was out of place. Edna noticed the victim in her bed completely covered by a comforter; this was not the usual way for the victim to sleep.

After Edna left the house, the victim’s mother, Florise, discovered her daughter’s body. She saw marks on the victim’s neck and mouth. The victim had been strangled from behind' with some type of ligature, and something had applied pressure to her face. The victim was in her underwear. There was no evidence of sexual activity or assault; no alien DNA was found. There was also no evidence anywhere in the house that a struggle had occurred. There were no signs of forced entry. The only thing missing in the entire house was a cordless black house phone from a base in the victim’s room.

Appellant, who was Florise’s cousin, had an intensely close relationship with the victim and her family. Thirteen years older than the victim, he began to live with the family when the victim was in elementary school. He and the victim had a special and unique relationship. Although no one ever observed inappropriate sexual contact between them, appellant often slept in the victim’s room. While he stayed with the family, appellant got married and started his own family. The victim did not like appellant’s wife at first, but soon the women became friends. After appellant got married, he continued to frequently sleep in bed with the victim. The victim’s stepfather and mother were aware of this sleeping arrangement but did not think it was unusual. Shortly after appellant’s first child was born, he moved his family to Boynton Beach.

Even after the move, appellant was a frequent visitor at the victim’s home, often spending nights in the victim’s room. He had a key to the house and knew the code to the alarm system. The victim often spent weekends with appellant and his family in Boynton Beach; during these visits the victim slept in a number of different places, sometimes in bed with appellant. Appellant’s wife commented that it was normal for her husband and the victim to lounge around together in their underwear. Witnesses described appellant and the victim as having a father-daughter relationship, but with physical interaction like a boyfriend and girlfriend who were always “all over” each other and who would tell each other everything. They spent hours talking in each other’s arms. When not together, appellant and the victim would speak every day by phone or over the Internet.

About six weeks before the murder, a rupture occurred in the relationship between appellant and the victim. Appellant got into an altercation with his wife and the victim intervened. Appellant pushed or hit the victim twice. She took offense and broke off the relationship. Her visits with appellant stopped. After the fight with the victim, appellant’s behavior changed — he stayed home, lying in front of the television all day, not wanting to do anything. Appellant told the victim’s mother that he could not afford to lose the victim’s friendship and that he would give his life for her. Over the next few weeks, appellant repeatedly telephoned the victim. Many times the victim refused to take his calls. To try and repair the relationship, appellant sent text messages and emails in which he professed his friendship and love and made it clear that his life was torn apart by losing his best friend. He told Florise that it was “killing” him to lose the victim’s friendship.

The victim’s response to the changed relationship was different than appellant’s. She cut appellant out of her life and, for the first time, began to spend time with other men. Three social friends of the victim were mentioned at trial: Adelyn, the brother of appellant’s wife and a cousin of the victim’s mother; Stephane, a friend of both the victim and Adelyn; and Benny, a boxing instructor. Appellant was jealous that the victim’ had started going out and having fun.

Adelyn lived with appellant and his family. Florise described him as a friend of her daughter. Edna characterized him as a close friend of her sister’s, whose relationship with her did not change in the month before her death. Adelyn and the victim never argued and never had a falling out. Adelyn met the victim through appellant when she visited Haiti several years before the murder. He denied having an intimate sexual relationship with the victim and testified that he had engaged only in “kissing to more intense” heavy petting with her. Adelyn talked with the victim many times over the two days preceding her death. On the night that she died, he stayed in at appellant’s home and had no contact with anyone between 11 p.m. and 8 a.m. the next morning.

About a month before the murder, Benny the boxing instructor started giving the victim boxing lessons for 2.5 hours every weekday. Three days before the murder, they went out on a date. While they were out, the victim received phone calls that upset her. They had plans to go on a second date the weekend of her death. After the murder, appellant told a friend that he never liked the boxing instructor and that he had gone to the gym to check him out, pretending to be a prospective customer. The instructor remembered showing appellant around on this visit to the gym. Appellant did not think the instructor should be dating a client and did not approve of the victim receiving his late night calls.

Stephane was a friend of both Adelyn and the victim who did not meet appellant until after the murder. The night of her death, the victim went out on a date with Stephane. While the victim was getting ready, Edna used the black cordless phone in her sister’s room. When she was finished, she threw the phone onto the victim’s bed. The victim was in a good mood. She left the house shortly after 9 p.m. About ten minutes later, Edna left the house for her evening out.

The victim picked up Stephane in her car and they went to dinner at Dave & Buster’s. On the way, the victim received a call on her cell phone. Although she was not happy about it, she answered the phone, listened quietly, abruptly hung up, and then was quiet for a while. She received a second call during dinner. Her only contribution to the conversation with the caller was to ask, “Are you done yet?” Phone records later established that appellant called the victim twice while she was out with Stephane. Although his phone was turned off, Stephane received two calls from the victim’s house phone at 12:23 and 12:27 a.m. The victim dropped Stephane off at his house between 12:30 and 1:00 a.m. and said she would call him when she got home. Stephane never received the victim’s call.

When Edna arrived home shortly after 3 a.m., she noticed nothing unusual. The front door was locked. The only way to have locked the door from the outside was with a key. Nothing seemed out of place.

After the victim’s body was discovered, Florise called appellant’s house and spoke to his wife. Appellant was already on his way to the victim’s house. When he arrived, Florise confronted him, but he showed no emotion. Adelyn arrived at the house and spoke to appellant, who said he thought that the boxing trainer was a possible suspect. After talking with the police, Adelyn went to get Stephane, but his car would not start, so he borrowed appellant’s car. Stephane and Adelyn both noticed a black house phone in the car, by the front seat.

When the police later searched appellant’s car, they found the black cordless house phone, which had the same serial and model number as the phone base in the victim’s room. The police called the victim’s number, and the black cordless phone rang. The police also found some jewelry in the glove compartment. Appellant’s conflicting stories about the phone and the jewelry were significant pieces of evidence in the trial.

Several weeks before the murder, Edna and Florise had seen the same jewelry in the victim’s room. The victim showed the jewelry to one of her friends. Appellant told a friend that he had bought the jewelry for his wife and had let the victim look at it. He also told the friend that he had bought the jewelry for the victim. To the police, appellant claimed that he had bought the jewelry for his wife as a present for their fifth wedding anniversary. However, appellant’s wife explained that, as a Jehovah’s Witness, she did not celebrate her wedding anniversary and that her husband had never before given her an anniversary gift.

Several days before the murder, appellant’s wife cleaned out his car. On the night of the murder, she used the car until 9:15 p.m. At no time did she see the jewelry or the black cordless telephone. However, during his first, extensive statement to the detectives, appellant said that he had bought this phone a month before the murder and that the phone had been in his car ever since. In a later interview, appellant changed his story and told the police that he did not put the phone in his car.

On the night of the murder, appellant left his home around 10 p.m. and did not return until 4 or 5 a.m. He told the police that he was alone, sitting in his car, at a park by the water between 11 p.m. and 4 a.m. He told a friend a different story— that he had been fishing. Appellant had not been fishing for three years. When questioned by the detectives about this discrepancy, appellant maintained that he did not tell his friend anything about going fishing.

Text messages and emails between appellant and the victim gave definition to the intensity of their unique relationship. These are examples of the messages appellant sent to the victim:

I want to reassure you the most important mission for the short time left on this planet is to spoil you with everything the best way I can. Love always, [appellant].
Since the waiting list is long for a date with a hot chick like you, I figure I would ask early. Would you like to see “The Land of the Dead?” It comes out this , Friday. Let me know ASAP because brother needs a makeover, to accompany a beautiful lady like you. I hope I am not far down the list.
I am sorry if I sound like I am pressuring you. Have fun wherever you have to be at. Wherever you have to be, have some for me too.
Hey, Love. I just made the deposit of 200 for you.

The state introduced 19 emails from appellant to the victim and three emails from the victim to appellant. Appellant’s emails are needy and intense. He said he was hurting and mentioned killing himself. He was married to his wife, but his relationship with the victim was greater. He loved his wife, but was in love with the victim. Without the victim, he had no one with whom to discuss personal things. His life was meaningless without her. He liked Adelyn, but warned the victim not to let Adelyn take advantage of her, like kissing him when he was not even her boyfriend. It was killing him inside that he may have lost her to Adelyn, but he was at her mercy.

The victim’s emails to appellant let him know that there had been a sea change in their relationship. For example, in one email the victim told appellant:

I will never get over the fact that you hurt me. I always believed in you. I always thought we would never part. Unfortunately, I can’t get over the fact that the man I loved whole heartedly, nothing holding back, could ever do what you did.
The sad thing is, I still love you the same. I just can’t be around you anymore. I can’t promise you that I will ever contact you again or ever see you again. You hurt me, yet I still love you. I could never hate you because I love you too much.
It’s funny how at that moment, you could look me in my eye and strike me twice, with no hesitation. It won’t happen again, because I won’t be there anymore for it to happen.
It’s funny how you look me dead in the face, in my eyes, and strike me, not once but twice, the person that you claim to love so deeply. Yet, at the same moment, you didn’t strike [your wife]. That goes to show who you really love.

Other emails described the victim’s feelings for Adelyn and her concerns that other people were interfering in that relationship to “protect” her.

Appellant contends that the victim’s emails to him were inadmissible hearsay. However, the emails were not hearsay because they were offered not for the truth of the matters they contained but to establish the effect that the statements had on appellant, the recipient of the emails.

Subsection 90.801(l)(c), Florida Statutes (2008), defines “hearsay” as a “statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So.2d 906, 914-15 (Fla.2000). When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay. Id. at 915. A recognized, non-hearsay use of an out of court statement is to “show motive.” Id.

Thus, a victim’s out of court statements were admitted to prove motive in the homicide case Blackwood v. State, 111 So.2d 399, 407 (Fla.2000). There, the Supreme Court considered a witness’s statements that relayed certain comments that the victim had made to the defendant— that the victim had “had abortions from [the defendant]” and that the victim was “pregnant from someone else.” Id. The Supreme Court held that the victim’s statements were not hearsay. Id. Rather,

the victim’s statements were offered to show the effect such statements had on [the defendant]. His state of mind and knowledge were relevant to show both his motive and intent in committing murder. Certainly, the [defendant’s] knowledge of the victim’s past abortions, pregnancy, and intention not to see him anymore were material to the issue whether appellant possessed a motive to kill the victim.

Id.

Similar to Blackwood, in the homicide case Foster v. State, the state introduced the victim’s out of court statements to the defendant about reporting an arson in a school auditorium to the campus police. The Supreme Court held that the statements were non-hearsay to “establish both knowledge and motive, rather than to establish the factual truth of the contents of the statements.” 778 So.2d at 915. The Court observed that the defendant had a “motive for killing [the victim] as soon as he found out about [the victim’s] promise to tell the authorities the next morning” about the arson. Id.; see also Koon v. State, 513 So.2d 1253, 1255 (Fla.1987) (holding that a magistrate’s statement to the defendant at a preliminary hearing was not hearsay because it was relevant to defendant’s formation of a motive to kill a prosecuting witness); United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir.1986) (out of court statement not hearsay if offered “to show the effect it has on [the] hearer”); Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir.2000) (out of court statements not hearsay where offered to demonstrate impact on listener’s state of mind).

As were the statements in Blackwood and Foster, the victim’s emails to appellant in this case were admissible to establish a motive for the homicide — the sudden deterioration of appellant’s intense relationship with the victim. The state offered the statements not for their truth, but to demonstrate their impact on appellant. Because appellant was the recipient of the victim’s emails, this case is distinguishable from the line of cases involving a victim’s statement to a third person expressing fear of a defendant. See Johnson v. State, 969 So.2d 938, 951 (Fla.2007); Thomas v. State, 993 So.2d 105, 109-10 (Fla. 1st DCA 2008). In such cases, the victim’s statement cannot have had an effect on the defendant who did not hear it, so it cannot be offered for a material, non-hearsay purpose.

Appellant’s second point involves the statements he gave to the police. Appellant gave two statements, extending over eight hours. These DVD interviews were published to the jury with the benefit of a 746 page transcript. The detectives who questioned appellant used a variety of interrogation techniques: they worked to develop a rapport with appellant, pointing out similarities in their beliefs and backgrounds; they closely observed appellant’s non-verbal reactions to questioning; they confronted appellant with facts in the case that pointed to his guilt; they developed themes about how and why the crime occurred to see if appellant would latch on to one of the themes and talk about the case; they offered socially acceptable motives to appellant to see if he would choose one; they offered him opportunities to explain things in a way that would not indicate guilt, but which would require an acknowledgement that he had been lying about certain facts; they encouraged appellant to refer to himself in the third person, as “Jimmy,” to distance appellant from the case so that he would be more comfortable talking about it; they appealed to his closeness with the victim’s family to help them solve the case and give the family closure. In spite of the detectives’ efforts, appellant steadfastly refused to acknowledge any involvement in the murder.

In the first interview, the detectives questioned appellant about his whereabouts the night of the murder, the nature of his relationship with the victim, discrepancies between his story and Stephane’s, the jewelry found in his car, his lack of emotion or surprise when learning of the victim’s death, how he had a key to the victim’s house, his willingness to submit to DNA testing, how he had “strong reservations” about the “trainer guy,” and the events that led to the deterioration of his relationship with the victim. They discussed voodoo, which appellant described as a “process” or “ritual” which causes the perpetrator to “come forward” to the family. They talked at length about the phone found in appellant’s car, which appellant claimed he had purchased online and which he maintained was not the victim’s. He insisted that the phone had been in his car for several weeks. The detectives wondered how the phone could maintain its electrical charge for that length of time, but appellant contended that it was possible.

Longer than the first interrogation, appellant’s second interview with the detectives occurred several weeks later. At the beginning of the statement, appellant said he remembered that his wife had cleaned out the car on the day before the murder, so that he could not have been responsible for the phone discovered in his car. He suggested that this fact made Adelyn or Stephane the prime suspects, because they had been in his car the morning the victim’s body was found. The police focused on the discrepancy between this story and appellant’s adamant story about the phone in the first interview. The detectives asked appellant about the closeness of his relationship with the victim. They presented appellant with various theories about what had happened. Appellant never admitted his involvement in the crime.

Appellant argues that the trial court erred in allowing the jury to hear, over defense objection, four statements by the interrogating detectives that indicated their belief as to appellant’s guilt or “theory as to what happened.” Located in different parts of the lengthy interrogation, these are the four statements:

Let me talk to a jury, a grand jury, a judge, and a state attorney and say, “Listen, I spoke with [Appellant]. It took a while. [Appellant] obviously knows he made a mistake.”
* * *
I’m a little fearful you’re gonna do something to yourself. You’re gonna hurt yourself. And I’m being serious. I’m being sincere.
If you were a jury member and that’s the way it was told to you, you would say, “That guy’s lying.” Right?
⅜ ⅜ *
You know why? Because you know it’s true, Jimmy. You drove down here— and I am not yelling. You drove down here to the City of Miramar because you didn’t have control. Where the hell is she? She’s going to be rude to me like that on the phone, in front of Stephane? I don’t think so. I am going to humiliate her at the house. She ain’t there. Now what, Jimmy? Are you going to humiliate her? Did you?

To the last question in the last quoted paragraph, appellant responded, “You are taking one situation and generalizing it.” The questioning then moved on to other matters.

Appellant contends that, when considered in light of other statements contained in the two interviews, these four excerpts amount to reversible error under Sparkman v. State, 902 So.2d 258 (Fla. 4th DCA 2005). Distinguishable from Sparkman, this case does not present the great danger of unfair prejudice that was the basis of that case’s holding.

Sparkman was a manslaughter case involving the death of a toddler. Id. at 254. Other than the defendant, there were no direct witnesses to the events leading up to the child’s death. See id. at 254-57. The case was based largely upon after-the-fact testimony from the child’s father, an emergency medical technician, and two medical examiners, one of whom testified that traumatic, and not accidental injury was the cause of the child’s death. Id. In a tape recorded statement with a detective, the defendant maintained that she did not do anything that would have hurt the baby, that she just shook her a little to get her to wake up from a seizure. Id. at 256-57. During the statement, the detective launched into an extensive recitation of his theory of the case, outlining his version of the facts of the crime. Id. at 257-58. The defendant responded to the detective’s accusations with “Uh huh” and with silence. Id.

We reversed based on the trial court’s failure to exclude the detective’s hypotheses about how the crime occurred from the tape recording. Id. at 258-59. The basis of the holding was that the probative value of the detective’s words was “substantially outweighed by the danger of unfair prejudice” or “misleading the jury” under section 90.403, Florida Statutes (2005). See Shrader v. State, 962 So.2d 369, 371 (Fla. 4th DCA 2007) (recognizing that basis of holding in Sparkman was that detective’s statements were “blatantly prejudicial”). The danger of unfair prejudice in Sparkman was that the jury might have taken the defendant’s responses to the detective’s detailed and speculative narrative — silence and “Uh huh” — as admissions of guilt.

Not everything a detective says to a defendant during a recorded interrogation is unfairly prejudicial under 90.403. The Supreme Court has recognized that a jury may hear an interrogating detective’s statements about a crime when they provoke a relevant response from the defendant being questioned. For example, confronting a defendant with a codefendant’s statements may properly be used “as provocation” to observe a defendant’s reactions. See Jackson v. State, 18 So.3d 1016, 1031-32 (Fla.2009). Such statements may be heard by the jury to “give context to the interview.” McWatters v. State, 36 So.3d 613 (Fla.2010). When placed in “their proper context,” an interrogating detective’s statements to a suspect could be understood by a “rational jury” to be “techniques” used by law enforcement officers to secure confessions. Id. at 637 (quoting Worden v. State, 603 So.2d 581, 583 (Fla. 2d DCA 1992)).

This case does not present the danger of unfair prejudice that informed Sparkman. Appellant made no equivocal responses that the jury might have misconstrued. Throughout the eight hours of interrogation, an alert, articulate appellant maintained that he did not commit murder, no matter what interrogation technique the detectives threw at him. The jury had ample time to consider the defendant’s credibility over the course of the extensive questioning. When placed in the context of the entirety of the interrogation, the trial court did not abuse its discretion in admitting the four excerpts quoted above.

We have considered the other issues raised by appellant and find no reversible error.

DAMOORGIAN and CIKLIN, JJ., concur.

DAMOORGIAN, J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.

      . For example, one detective told appellant: People do things for all different kinds of reasons. Love is a strong emotion. People have done crazy things for love. Not romantic love. Jealousy. Things happen. People make mistakes. Some you cannot reverse. But you can still do things to atone, to offer some relief to the family or whatever. Bad things happen.

      . For example, in the middle of the interrogation, this exchange occurred:
      Detective Smith: Last night, you may have gotten a call — you called Kathy [the victim], right? You had a spat on the phone or whatever. You went by the house, okay. And I know you — Jimmy goes by the house, okay? While she's out, he hangs out there after mom and dad go to sleep. Hangs outside the house. Kathy comes home. You confront Kathy, right? This is just a hypothetical. You confront her. You guys get in an argument. You take the phone last night. I am not saying you touched her. I am saying you took the phone last night because you did not want her to call the guy she was out with. But then, it’s our job to look at Benny or whoever, because they did whatever they did. What do you think of that hypothetical?
      Appellant: Hypothetically, it would not add up. Because if I had a confrontation with her or argument with her, talking is not— she is not going to talk hush, hush.

      . Although Sparkman v. State makes reference to the detective’s "hearsay statements,” the hearsay rule cannot have been the basis for the holding. 902 So.2d at 259. The opinion references the rule that a "trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Id. "[Hjearsay evidence is inadmissible” under section 90.802, Florida Statutes (2008), so its admission is not a discretionary ruling of a trial judge. On the other hand, whether evidence is admissible under section 90.403, Florida Statutes (2008), is a discretionary ruling of a trial court. See Sims v. Brown, 574 So.2d 131, 133 (Fla.1991) (where the court wrote that the "weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two”); Citrus County v. McQuillin, 840 So.2d 343, 345 (Fla. 5th DCA 2003) (recognizing abuse of discretion standard of review for rulings on the admissibility of evidence).

      . A trial judge’s application of section 90.403 to eliminate unfairly prejudicial statements is not a precise tool for addressing the problem of unfair prejudice. Given the wide discretion afforded to trial courts’ section 90.403 rulings, that section hardly eradicates prejudice with laser like precision. Faced with a defendant’s interrogation that contains non-hearsay statements by police officers, a trial court might also specially instruct the jury on the limited purpose for which the jury has been allowed to hear the interrogator’s statements. See § 90.107, Fla. Stat. (2005). This is an example of such an instruction:
      A recorded police interrogation of the defendant has been introduced into evidence in this trial. During the interrogation, any statements made by the police interrogator are not to be considered by you jurors as evidence of the defendant's guilt. The statements made by the police interrogator during the interview of the defendant have not been introduced into evidence to prove the truth of the matters asserted in those statements. In fact, the statements made by the police interrogator during the interrogation of the defendant may be false and misleading. It is permissible for a police officer conducting an interrogation of a defendant to make false and misleading statements to the defendant in order to further the aims of the interrogation. However, it is not permissible for you jurors to rely on such police interrogator’s statements as proof of the defendant’s guilt.


author: SHEPHERD, J.

text:
    Shane WILLENS, Appellant, v. Pedro J. GARCIA, as property appraiser, etc., Appellee.
    No. 3D09-2497.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.
    Rehearing Denied March 8, 2011.

      Arthur J. Morburger, Miami, Jerry Kahn, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, Melinda S. Thornton and Shani-ka A. Graves, Assistant County Attorneys, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal by an adult son, Shane Willens, of a final judgment of the circuit court, re-assessing to full value homestead property upon its devolution to Willens as the remainderman under a deed, pursuant to which his father retained a life estate in the property up until the date of his death. The chief detriment of the re-assessment to the son is the loss of some eighteen years of cumulative three percent annual caps on the increase in assessed value of the property under the Save-Our-Homes Amendment, added to the Florida Constitution by popular initiative of the people of this state in 1992. See Art. VII, § 4(c), Fla. Const. (1992).

Willens argues that during all these years, he either was “legally or naturally dependent” upon his disabled father within the meaning of section 193.155, Florida Statutes (2007), of this state’s general law pertaining to the assessment of property for ad valorem tax purposes, entitling him to retain the benefit of the Save-Our-Homes driven assessment reduction enjoyed by his father as a result of the father’s more than two-decade ownership of the property prior to his death. Willens claims the benefit of the dependency carry-over by virtue of the fact, conceded by the property appraiser, that for some twenty years prior to his father’s death, Willens served as the full-time, in-home, resident caretaker for his stroke-bound father — with full encouragement and support of his siblings — to the exclusion of an outside career. While Willens’ multi-dec-ade sacrifice of himself for the benefit of his father is laudable, indeed heroic in its proportions, we nevertheless conclude, on de novo review, the trial court correctly found Willens was not “legally or naturally dependent” on his father during those years, within the meaning of the Florida law on the assessment of real property for ad valorem tax purposes. Accordingly, we affirm the re-assessment of the property to full value.

ANALYSIS

It is undisputed that the property subject to this litigation was homestead property for ad valorem tax purposes for all of the years prior to the father’s death. See Art. VII, § 6(a), Fla. Const. (2007). Thus, from 1992 to the date of his death, the father received the benefit of the Save-Our-Homes cap, limiting the annual increase of the assessed value of the property to a maximum of three percent per year. See Art. VII, § 4(d)(1), Fla. Const. (2007). However, this same constitutional provision requires, in subsection (3):

After any change of ownership, as provided by general law, homestead property shall be assessed at just value as of January 1 of the following year, unless the provisions of paragraph (8) [not applicable to this case] apply. Thereafter, the homestead shall be assessed as provided in this subsection.

Art. VII, § 4(d)(3), Fla. Const. (2007) (emphasis added). Acting pursuant to this authorization, the Florida legislature enacted section 193.155, Florida Statutes (2007), which, at the time of the father’s death, provided as follows in subsection (3):

(3) Except as provided in this subsection, property assessed under this section shall be assessed at just value as of January 1 of the year following a change of ownership.... For the purpose of this section, a change in ownership means any sale, foreclosure, or transfer of legal title or beneficial title in equity to any person, except as provided in this subsection. There is no change of ownership if:
(d) Upon the death of the owner, the transfer is between the owner and another who is a permanent resident and is legally or naturally dependent upon the owner.

§ 193.155(3) (emphasis added). The phrase “legally or naturally dependent” is not defined.

Where, as in this case, a statute does not define a term at issue, courts commonly resort to canons of statutory instruction to derive the proper meaning. See Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 204 (Fla.2003). One of the fundamental tenets of statutory construction requires courts to give the words of a statute the plain and ordinary meaning usually attributed to them, unless a different meaning or connotation necessarily is implied from the manner or context in which the words are used. See State v. Brown, 412 So.2d 426, 428 (Fla. 4th DCA 1982) (citing 30 Fla. Jur. Statutes, § 87). When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary. See Nehme, 863 So.2d at 205.

A “dependent” is defined as, “One who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else.” Black’s Law Dictionary 503 (9th ed. 2009) (emphasis added). A “legal dependent” is defined as, “A person who is dependent according to the law; a person who derives principal support from another and usu. may invoke laws to enforce that support.” Black’s Law Dictionary 503 (9th ed. 2009). “Natural” is defined as being “1. In accord with the regular course of things-6. Of or relating to birth.” Black’s Law Dictionary 1126 (9th ed. 2009).

As a general rule, the legal duty of a parent to support his child ceases at the age of majority. See Kern v. Kern, 360 So.2d 482, 484 (Fla. 4th DCA 1978). One exception to the general rule imposes a continuing duty on a parent to care for an adult child suffering from physical or mental deficiencies. Id. Willens is an able-bodied adult who is long past nonage. He possesses none of the traits an ordinary observer might associate with a dependent. He nevertheless contends the phrase “legally or naturally dependent” encompasses the concept of the “moral obligation,” pursuant to which he, with the full support of his siblings, undertook to keep his father alive for those many laudable years.

Conceding a dearth of Florida case law directly on point, Willens primarily adverts to a pre-Save-Our-Homes opinion of the Attorney General of the State of Florida, Op. Att’y Gen. Fla. 82-27 (1982), 1982 WL 174174, to support his argument. There, the Attorney General opined, based upon his interpretation of “natural dependence” in article VII, section 6(a) of the Florida Constitution, that a parent living in another state, who purchases a home which is occupied by a child, attending college in this state whose disabilities of nonage have been removed, is eligible to make a claim for a homestead tax exemption. The Attorney General reasoned:

Since the state Constitution and statutes use the word “naturally” in opposition to “legally,” the latter portion of this definition would appeal' applicable so that the exemption could be available where property was the permanent residence of one who was morally dependent on the owner for support, even though not legally dependent on him.

Id. at *4. We find this opinion to be based upon questionable reasoning. First, college attendance, by its very nature, ordinarily is a temporary condition. Second, it is settled law that exemptions providing relief from taxation must be strictly construed. See Capital City Country Club, Inc. v. Tucker, 613 So.2d 448, 452 (Fla.1993). This opinion does not comport with that maxim. Third, the customary and ordinary understanding of a “moral obligation” is one that exists based only upon conscience and is not legally enforceable. See Black’s Law Dictionary 1180 (9th ed. 2009) (defining a “moral obligation” as “[a] duty that is based only on one’s conscience and that is not legally enforceable; an obligation with a purely moral basis, as opposed to a legal one”) (emphasis added). Cf. De La Mora v. Andonie, 51 So.3d 517 (Fla. 3d DCA 2010) (rejecting conclusion in same attorney general opinion that residence of a parent controls the place of residence of the child).

We find more persuasive an opinion of the Attorney General promulgated in 1938, at the time the homestead provision we must now interpret was approved by Florida’s citizens close to its present form. In that opinion, the Attorney General answered a number of questions regarding the amendment, including what classes of persons are included in the phrase “legally or naturally dependent upon such owner.” The Attorney General opined:

I am of the opinion that all persons are entitled to claim this exemption where there are other persons legally dependent upon them for support in the sense that the word “legally” there means where they are required by law so to do; such as the duty cast upon the husband by law to support his wife and minor children. Section 5873, Compiled General Laws, 1927, provides for support in certain instances. I quote the same:
“The children of parents who are unable to support themselves shall be required to make provision for their support.”
The words “naturally dependent” as used in the amendment, in my opinion, are persons related by blood to the owner of the property, and who otherwise qualify with the requirements set forth by the Supreme court of Florida in the case of Duval v. Hunt, et al., 34 Fla. 85, 15 So. 876. I quote the pertinent part thereof:
“ * * ⅜ He must show * * * that he or she was either from the disability of age, or nonage, physical or mental incapacity, coupled with the lack of property means, dependent in fact * ⅜ * for support. There must be, when adults claim such dependence, an actual inability to support themselves, and an actual dependence upon some one else for support, coupled with a reasonable expectation of support, or with some reasonable claim to support, from the deceased * * * ”

Op. Att’y Gen. Fla. 39-438, 445-46 (1939) (emphasis added). In this case, there is no proof Willens had an actual inability to support himself during any of the time he claims to have been dependent on his father.

We finally reject Willens effort to draw succor from an interpretation by the Florida courts of the “head of a family” requirement for claiming the benefit or protection of the “other” homestead provision of the Florida Constitution, found in every iteration of the provision from the time homestead protection first appeared in the Florida Constitution in 1868, see Art. IX, § 1, Fla. Const. (1868), until it was replaced by the term “natural person” in 1984. See Article X, § 4(a), Fla. Const. (1984). Willens points out that during these years, a property owner could base his claim that his property was homestead on a moral obligation assumed by that individual to care for another. See, e.g., Caro v. Caro, 45 Fla. 203, 34 So. 309 (1903); De Cottes v. Clarkson, 43 Fla. 1, 29 So. 442 (1901); see also Johns v. Bowden 68 Fla. 32, 45, 66 So. 155, 159 (1914) (“When the natural relation of husband and wife or parent and child, or that of being in loco parentis, does not exist, the relation should be one in which an established and continuing personal authority, responsibility, and obligation actually rests upon as ‘the head of the family’ for the welfare of the others....”). He further points out when the ad valorem homestead exemption provision — the provision we are called upon to interpret in this case — first was proposed and approved by the people of the State of Florida in 1934, it not only appeared in Article X of the Florida Constitution, the same article as did its older cousin, see Art. X, Fla. Const. (1934), but also it included the same “head of a family” qualifying condition to receive the benefit. Willens deduces from all of this that when the legislature drafted the homestead taxation provision for consideration by the electorate on November 6, 1934, it must have borrowed the “head of a family” phrase together with all of its meanings and connotations from the then existing “forced sale” homestead provision. Although Willens concedes the phrase “head of a family” was deleted from the ad valo-rem homestead provision in 1938, see supra note 5, he nevertheless argues it and its interpretive meanings were subsumed in the word “natural” in the phrase “legally or naturally dependent” which was then inserted. Id.

We find Willens’ argument creative and intriguing, but not persuasive. First, as Willens concedes, the “head of a family” requirement appeared in the ad valorem homestead taxation provision of the Florida Constitution, for a mere four years of its existence. We find no evidence it was interpreted. Second, this Court and others have often cautioned against relying upon other homestead exemptions as authority. See Taylor v. Maness, 941 So.2d 559, 563 (Fla. 3d DCA 2006) (“The homestead exemption from forced sale is different from the homestead exemption as defined for tax purposes.”); S. Walls, Inc., v. Stilwell Corp., 810 So.2d 566, 569-70 (Fla. 5th DCA 2002) (“We begin our analysis by noting that the concept of homestead will be given different meanings depending on the context in which it is used.”). In this context, we note that, unlike the ad valorem homestead exemption, the “forced sale” provision is to be “liberally construed for the benefit of those whom it was designed to protect.” See Taylor, 941 So.2d at 562 (quoting Law v. Law, 738 So.2d 522, 524 (Fla. 4th DCA 1999)). We find no authority in the case law of this state, and Willens has cited none to us, which has held that a moral obligation to support an able-bodied adult child is sufficient to render that person “legally or naturally dependent upon the owner” for ad valorem homestead exemption purposes. We conclude, therefore, that more than mere familial ties must exist to bring a person under the change of ownership exception to the reassessment requirement of the ad valorem homestead tax exemption. Mr. Willens’ reward for his two-decade sacrifice in the name of his father lies with a higher authority.

Affirmed.

      . The circuit courts of this state have original jurisdiction to consider all matters relating to property taxation, notwithstanding the fact the taxpayer might have, as in this case, contested the decision of the property appraiser before the value adjustment board. See § 194.171(1), Fla. Stat. (2008); Deluccio v. Havill, 25 So.3d 31 (Fla. 1st DCA 2009). Accordingly, the proceeding here is by appeal. See Art. V, § 4(b)(1), Fla. Const. (2008).

      . This type of homestead is sometimes called "common homestead" to distinguish it from the less well-known, but important, life-time and death-time exemptions from creditor's claims, limitations on devise, and restrictions on alienation of separately defined homestead property appearing in article X, section 4 of the Florida Constitution. See Cutler v. Cutler, 994 So.2d 341, 343 (Fla. 3d DCA 2008).

      . The phrase also appears in section 196.031(1 )(a) of the Florida Statutes (2007), a related section of the Florida Statutes, but which is not pertinent here. As is the case with respect to section 193.155(3), there is no definition of the phrase to be found there either.

      . Opinions of the Attorney General are considered persuasive, but do not constitute binding authority on the courts of Florida. See Palm Beach County v. Hudspeth, 540 So.2d 147, 152 (Fla. 4th DCA 1989) (citing Beverly v. Div. of Beverage of the Dep’t of Bus. Regulation, 282 So.2d 657, 660 (Fla. 1st DCA 1973)).

      . The homestead tax exemption initially was approved by the voters on November 6, 1934, in response to the collapse of the Florida land boom and Great Depression. See Art. X, § 7, Fla. Const. (1934); Senate Joint Resolution No. 582. In 1938, the provision was amended to read:
      Section 7. Every person who has the legal title or beneficial tide in equity to real property in this State and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of Five Thousand Dollars on the said home.... The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption.
      Art. X, § 7, Fla. Const. (1938); Senate Joint Resolution No. 21.

      . This 1927 statute has been repealed. Compare § 5873, Comp. Gen’l Laws of Fla. (1927) with Comp. Gen’l Laws of Fla. (1927-1930 cumulative supp.). However, the effect of this law would not render Willens, the caregiver for his father, dependent upon his father. Rather, his father would have been dependent upon him.

      . This provision is sometimes referred to as the "forced sale” homestead exemption. See supra note 2.

      . At that time, the provision read:
      Section 7. There shall be exempted from all taxation, other than special assessments for benefits, to every head of a family who is a citizen of and resides in the State of Florida, the homestead as defined in Article X of the Constitution of the State of Florida up to the valuation of $5,000.00; provided, however, that the title to said homestead may be vested in such head of a family or in his lawful wife residing upon such homestead or both.
      Art. X, § 7, Fla. Const. (1934).

      . See also Havoco of Am., Ltd. v. Hill, 790 So.2d 1018 (Fla.2001). The Havoco Court, while affirming the liberal construction to be given to the "forced sale” homestead exemption provisions, also noted that "[a] concomitant in harmony with th[e] rule of liberal construction is the rule of strict construction as applied to the exceptions." Id. at 1021. The Court recognized that one of the exceptions is the payment of taxes, and that the failure to pay them could result in forced sale.


text:
    Andre FROST, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3561.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Andre Frost appeals the circuit court’s denial of his dispositive motion to suppress in a case where he entered pleas of no contest to charges involving possession of cocaine and cannabis. Frost contends that the state failed to establish the reliability of the police dog that alerted to the presence of drugs in his car. We find that competent, substantial evidence supported the circuit court’s finding of probable cause based on the dog sniff, and affirm.

Deputy Paul Jackson stopped Frost’s Dodge Neon for running a stop sign. Corporal Randy Thomas arrived at the scene after the traffic stop. Jackson approached Frost’s car and spoke with Frost. The deputy asked if he could search the car, but Frost said no. Thomas called for a dog unit.

While Jackson was writing a traffic citation, Detective Richard Voss arrived at the scene with his dog, Rex. Voss walked Rex around Frost’s car for the dog to perform an exterior sniff. Rex alerted at the driver’s seat. Voss returned Rex to his patrol car and told Jackson and Thomas about the alert. Jackson finished writing the citation and issued it to Frost.

After Frost was removed from his car, Thomas and Voss searched it. The search turned up powder and crack cocaine in an Altoids can found between the driver’s seat and center console. A bag with marijuana was found in the same area. The deputies placed Frost under arrest.

Detective Voss described Rex’s training and experience. The two had been a team for six or seven years. Rex was a dual purpose K-9, which means that he was an apprehension dog in addition to serving as a narcotics detection dog. The Okeechobee Sheriffs Office obtained Rex from Metro-Dade K-9 Services in Hialeah. K-9 Services had trained Rex for narcotics and apprehension work. This initial training was the basic training Rex needed to be a police dog. A police dog’s handler then conducts proficiency training throughout the dog’s career.

Voss explained that he relied on Rex’s alerts to provide probable cause for searches. He testified that Rex was certified to detect marijuana, cocaine, hash, heroin, ecstasy, and methamphetamine. Rex was certified in narcotics and apprehension work by the National Detection Dog Association, the North American Police Work Dog Association, and the Florida Police Work Dog Association. Voss tried to maintain the dog’s certifications each year, depending on the location where the certification evaluations were held. Over the time that Voss and Rex worked together, they obtained between 50 and 80 certificates. In addition to that training, Voss trained Rex once a week or every other week in a controlled odor environment. The sheriffs office maintained records for Rex’s certifications and training.

On cross-examination, Voss stated that Rex had failed one test. During that 2007 test, methamphetamine was placed in a car. Rex was able to recognize the odor and identify the car, but not the source of the odor within the car, “because of the depth of the hide.” This one failed test was but one portion of an overall certification evaluation.

Voss also described instances where Rex alerted to the odor of drugs in a car but a subsequent search located no drugs. Voss estimated these false positives, or alerts to residual odor, occurred in less than 5% of the hundreds of times Rex had been used. He added that, in such cases, he often questioned the driver of the car and determined that drugs had at one time been used in the car. Voss did not calculate an overall accuracy rate for Rex and he did not know of any agency that did so for its dogs.

Frost argued that Rex’s alert, by itself, did not provide probable cause for the search of the car. The trial court denied the motion to suppress, relying on State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005).

Two lines of cases address the sufficiency of a police dog’s reliability to provide probable cause for a warrantless search. Frost relies on the first line of cases, which began with Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003), review dismissed, 896 So.2d 748 (Fla.2005), cert. denied, 546 U.S. 998, 126 S.Ct. 545, 163 L.Ed.2d 499 (2005). In Matheson, the Second District held that a dog’s alert to the presence of drugs may provide probable cause, but not by itself; proof that a narcotic dog has been trained and certified is insufficient in and of itself to establish probable cause for a search. Id. at 12, 14. The State must also demonstrate that “an alert by a narcotics detection dog is sufficiently ‘reliable’ to furnish probable cause to search.” Id. at 14. Factors informing reliability are the dog’s training, the standards or criteria used to select dogs for narcotics training, the standards the dog had to meet to complete training, and the dog’s performance history. Id. The Second District placed particular emphasis on the dog’s performance history. Id. at 15.

No other district has followed Matheson. See State v. Tanner, 915 So.2d 762 (Fla. 2d DCA 2005); Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), review dismissed, 985 So.2d 1088 (Fla.2008); Tedder v. State, 18 So.3d 1052 (Fla. 2d DCA 2008); State v. McNeal, 35 Fla. L. Weekly D1261, — So.3d — (Fla. 2d DCA June 4, 2010).

The state urges us to rely on the second line of cases, beginning with our decision in State v. Laveroni, which reversed a circuit court’s grant of a motion to suppress. There, the defendant’s written motion argued that drug evidence should be suppressed because of the unreasonably long length of time between a traffic stop and the arrival of the dog. Laveroni, 910 So.2d at 334. At the hearing on the motion, after the presentation of evidence and argument, the circuit court sua sponte raised “the issue of whether there was sufficient proof that the narcotics dog was qualified so as to establish probable cause under Matheson v. State.” Id. Neither party had offered evidence on the issue. Id. at 335. Instead of allowing the state to present more evidence, the court granted the defendant’s motion to suppress. Id. We reversed, holding that the defendant’s motion and argument, which had challenged only the unreasonable delay, did not put the State on notice that the dog’s qualifications would also be challenged. Id.

In Laveroni, we also provided guidance for how the case should be handled on remand, explaining the basis for our disagreement with Matheson. Id. Based on our review of case law, we concluded that Matheson was “out of the mainstream.” Id. Nonetheless, we agreed with the Second District that a dog’s past performance records are relevant to the issue of the reliability of a dog sniff. We then described the analytical framework to be applied when a defendant challenges the use of a dog sniff to establish probable cause for a search. Id. We wrote

that the state can make a prima facie showing of probable case based on a narcotic dog’s alert by demonstrating that the dog has been properly trained and certified. If the defendant wishes to challenge the reliability of the dog, he can do so by using the performance records of the dog, or other evidence, such as expert testimony. Whether probable cause has been established will then be resolved by the trial court.

Id. at 336 (citations omitted) (following Dawson v. State, 238 Ga.App. 263, 518 S.E.2d 477 (1999)). We certified direct conflict with Matheson. Id.

Laveroni has been followed by the First and Fifth Districts. See Harris v. State, 989 So.2d 1214 (Fla. 1st DCA 2008); State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005). The Supreme Court granted review in Harris to resolve the inter-district conflict and held oral argument on June 4, 2009. See Docket, Harris v. State, 989 So.2d 1214. The court has not issued its opinion.

In the absence of a Florida Supreme Court decision resolving the inter-district conflict, the circuit court in this case was bound by Laveroni. See Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008) (“[B]ecause the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state. If there is unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district.”) (citations omitted).

Frost argues that Laveroni’s disagreement with Matheson and the articulation of a different rule is dictum and he urges us not follow it. It is true that Laveroni reversed because the circuit court sua sponte raised the dog issue and denied the state’s request to present witnesses to qualify the dog. See 910 So.2d at 334-35. But, although the discussion of probable cause pertaining to a dog sniff in Laveroni is a form of dictum, it is nonetheless authoritative as judicial dictum.

There are two kinds of dicta. On the one hand is obiter dictum, which is “a purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination.” Bunn v. Bunn, 311 So.2d 387, 389 (Fla. 4th DCA 1975). On the other hand is judicial dictum:

Judicial dicta are comments in a judicial opinion that are unnecessary to the disposition of the case, but involve an issue briefed and argued by the parties. Black’s Law Dictionary 465 (7th ed. 1999). Judicial dicta have the force of a determination by a reviewing court and should receive dispositive weight in an inferior court. Cates v. Cates, 156 Ill.2d 76, 80, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993).

People v. Williams, 204 Ill.2d 191, 273 Ill.Dec. 250, 788 N.E.2d 1126, 1136 (2003). In particular, “[a]n expression which might otherwise be regarded as dictum becomes an authoritative statement when the court expressly declares it to be a guide for future conduct.” State v. Fahringer, 136 Ariz. 414, 666 P.2d 514, 515 (1983) (citation omitted).

Here, our analysis in Laveroni providing a framework for analyzing a Fourth Amendment challenge to a dog’s sniffing qualifications was judicial dictum. It was unnecessary to the ultimate holding, but the dog issue was briefed by the parties. The analysis was not purely gratuitous; rather, it was to guide the case on remand and for future cases as well. Finally, our pronouncement was not perfunctory, but reflected a considered and deliberate judgment by the court. Therefore, we continue to abide by Laveroni, subject to a different ruling on the issue by the Florida Supreme Court.

Applying Laveroni to this case, we find no error in the ruling of the circuit court. A circuit court’s ruling on a motion to suppress is a mixed question of fact and law. Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). Factual findings are reviewed for competent, substantial evidence; the application of the law to those facts is reviewed de novo. State v. Gomez, 937 So.2d 828, 831 (Fla. 4th DCA 2006). Because the ruling is presumed correct, the evidence and reasonable inferences and deductions derived from it must be interpreted in a manner most favorable to sustaining the court’s ruling. State v. Allen, 994 So.2d 1192, 1194 (Fla. 5th DCA 2008). A dog’s reliability is a question of fact. See Matheson, 870 So.2d at 12 (quoting Dawson, 518 S.E.2d at 480).

Here, Frost challenged Rex’s reliability. Under Laveroni, to make a prima facie showing of probable cause, the state was required to demonstrate that Rex was properly trained and certified 910 So.2d at 336. The state satisfied this burden by having Detective Voss describe Rex’s certifications and training regimen. Voss testified that Rex was certified to detect marijuana, cocaine, hash, heroin, ecstasy, and methamphetamines. Voss explained that Rex trained more than once a month in a controlled odor environment throughout his six years as a police dog. Consequently, the state made a prima facie showing of Rex’s reliability.

Foster relied on Rex’s performance records to challenge Rex’s reliability. On cross-examination of Voss, Foster elicited testimony that Rex had a 5% false positive rate, so that Rex was accurate 95% of the time. A 95% accuracy rate indicates significant reliability. Competent, substantial evidence supported the circuit court’s finding of the dog’s reliability to support a finding of probable cause.

Affirmed.

STEVENSON and TAYLOR, JJ, concur.

      . Many jurisdictions recognize the distinction between obiter dicta and judicial dicta. See, e.g., Cerro Metal Prods. v. Marshall, 620 F.2d 964, 978-79 & n. 39 (3d Cir.1980); Ex parte M.D.C., 39 So.3d 1117, 1129 n. 4 (Ala.2009); State v. Widenhouse, 582 So.2d 1374, 1382 (1991); State v. Baby, 404 Md. 220, 946 A.2d 463, 497-98 (2008) (Raker, J., concurring and dissenting); Johnson v. White, 430 Mich. 47, 420 N.W.2d 87, 90 n. 2 (1988); State ex rel. Ahern v. Young, 273 Minn. 240, 141 N.W.2d 15, 19 (1966); Dyer v. Drucker, 104 N.Y.S. 166, 168-69 (N.Y.Sup.Ct.1906); Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964); W. Va. Dep’t of Transp., Div. of Highways v. Parkersburg Inn, 222 W.Va. 688, 671 S.E.2d 693, 699-700 & n. 6 (2008); Brown v. Chicago & N.W. Ry. Co., 102 Wis. 137, 78 N.W. 771, 776 (1899). See also 21 C J.S. Courts § 230 (on judicial dicta).

      . See United States v. Donnelly, 475 F.3d 946, 955 (8th Cir.2007) (finding a dog reliable when, combined with his certifications and consistent training, "his accuracy rate exceeded [50] percent”); United States v. $30,670, 403 F.3d 448, 460 (7th Cir.2005) (finding a dog reliable when "[d]rugs or currency were found after 97.6% of his alerts,” "[d]rugs were found after 70.1% of his alerts,” and "[o]nIy five of Bax's alerts (the remaining 2.4%) were unambiguous false positives”); United States v. Navarro-Camacho, 186 F.3d 701, 706 (6th Cir.1999) (finding a dog reliable when it had "rate of reliability ... between 90 and 97 percent,” even if it "occasionally alerted falsely”); United States v. Carroll, 537 F.Supp.2d 1290, 1297 (N.D.Ga.2008) (“Even if Azteck's accuracy rate is only 52%, that level of reliability is sufficient for his alert to establish probable cause. Azteck’s alert indicates the presence of drugs by more than a preponderance of the evidence. Azteck’s accuracy exceeds [the] ‘fair probability’ requirement of probable cause.”).


text:
    Terrance A. LAKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2970.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Terrance A. Lake, pro se, Appellant.
    Pamela Jo Bondi, Attorney General and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss the appeal for the reasons that follow.

Appellant raised eight claims in his motion. The state agreed that three of the claims required an evidentiary hearing, but argued that the other claims were legally insufficient and/or refuted by the record. The trial court appointed counsel for Appellant and the matter proceeded to an evidentiary hearing on the three claims that the state agreed required an eviden-tiary hearing.

After the hearing, the trial court entered an order denying the motion and informing Appellant of his right to appeal. The order specifically addressed only those claims presented at the evidentiary hearing, and as discussed below, there is no indication in the record that the trial court summarily denied the remaining claims. There is also no indication in the record that Appellant abandoned the claims that were not presented at the evidentiary hearing, and to the contrary, his counsel specifically asked the trial court at the hearing to rule on all of the claims raised in the motion.

It is well-settled that an order disposing of some, but not all of the claims in a motion for postconviction relief is not an appealable final order. See Edler v. State, 673 So.2d 970, 971 (Fla. 1st DCA 1996) (citing McCoy v. State, 487 So.2d 1095 (Fla. 1st DCA 1986), and White v. State, 450 So.2d 556 (Fla. 2d DCA 1984)). In response to our order directing Appellant to show cause why this case should not be dismissed on this basis, Appellant conceded that the trial court’s order was not an appealable final order, but he also asked us to direct the trial court to allow him to correct any pleading deficiencies in his motion in accordance with Spera. In reply, the state argued that Appellant should not be permitted to amend his post-conviction motion because he had an evi-dentiary hearing on his claims. The state also argued that the trial court’s order is an appealable final order because it “tacitly denied all claims for postconviction relief through its strong language that trial counsel did a commendable job, etc.” (emphasis in original).

We decline to construe the trial court’s order in the manner suggested by the state. First, the order only discusses the claims presented at the evidentiary hearing. Second, the “strong language” in the order referred to by the state appears to relate only to the claims presented at the evidentiary hearing because it indicates that no evidence was presented “at hearing ... remotely supporting [Appellant’s] contention that he received ineffective assistance of counsel at trial” (emphasis added), and the only claims considered at the evidentiary hearing were the three that the state agreed required an evidentiary hearing. Third, the order does not include any record excerpts or discussion of the legal insufficiency of the other claims as would be expected if the order were also intended to summarily deny the claims in the motion that were not presented at the evidentiary hearing.

Accordingly, we construe the order on appeal to dispose of only the three claims presented at the evidentiary hearing, and because the trial court’s judicial labor on Appellant’s motion is not yet complete, we dismiss this appeal. In doing so, we express no view on the sufficiency or merits of the remaining claims or whether the trial court should allow Appellant to amend the claims that were not presented at the evidentiary hearing. Also, as in Edler, the dismissal of this appeal is without prejudice to an appeal of the final order disposing of all the claims raised in Appellant’s motion.

DISMISSED.

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

      . Although the motion and the attached "Memorandum of Law in Support" (hereafter "the attachment”) incorporated by reference into the motion listed nine separate "grounds” and "issues,” there were actually only eight claims as a result of different numbering of the claims by Appellant in the motion and the attachment. See note 2.

      . There was confusion at the outset of the hearing concerning the particular claims that were going to be presented. The confusion resulted from different numbering of the claims in the motion (which listed "grounds” 1 through 4) and the attachment (which expanded on grounds 1 through 4, but listed them as "issues” 2 through 5 and also included four additional claims listed as "issues” 6 through 9). The claims ultimately presented at the evidentiary hearing and addressed in the order on appeal were ground 2 in the motion, which was issue 3 in the attachment (alleging counsel’s failure to conduct a reasonable investigation and impeach the state’s key witness); ground 3 in the motion, which was issue 4 in the attachment (alleging counsel’s failure to conduct an adequate investigation of the charge and possible defenses); and issue 7 in the attachment (alleging counsel’s failure to locate a key witness). The claims that were not presented at the evidentiary hearing and have not been ruled on by the trial court are ground 1 in the motion, which is issue 2 in the attachment (alleging that counsel failed to conduct a reasonable voir dire); ground 4 in the motion, which is issue 5 in the attachment (alleging a violation of Appellant’s right to be present at all stages of the proceeding); issue 6 in the attachment (alleging that counsel made an insufficient motion for judgment of acquittal); and issues 8 and 9 in the attachment (both asserting cumulative error).

      . Although the trial court stated at one point during the hearing that it did not intend to even consider the claims in the motion that were not presented at tire evidentiary hearing, this ruling (to the extent that was what the statement was intended to be) was not reduced to writing and, thus, was not a proper order denying the remaining claims. See Prado-Gonzalez v. State, 468 So.2d 991 (Fla. 4th DCA 1984) (order denying motion for post-conviction relief must be in writing).

      . Spera v. State, 971 So.2d 754 (Fla.2007).


text:
    Jeremiah BUTLER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-6678.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Jeremiah Butler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Gaither v. McDonough, 968 So.2d 57 (Fla. 1st DCA 2007).

BENTON, C.J., DAVIS and THOMAS, JJ., concur.


text:
    OFFICE OF INSURANCE REGULATION and the Financial Services Commission, Appellants, v. SERVICE INSURANCE COMPANY, Appellee.
    No. 1D10-2248.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Elenita Gomez, S. Marc Herskovitz and Sharlee Hobbs Edwards, Assistant General Counsel, Tallahassee, for Appellants.
    Richard J. Santurri and Douglas A. Mang, of the Mang Law Firm, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of Appellee’s response to our order to show cause, and pursuant to Florida Rule of Appellate Procedure 9.315(b), we summarily reverse the Supplemental Final Order awarding attorney’s fees to Appellee based on our reversal of the underlying Final Order in Office of Insurance Regulation v. Service Insurance Company, 50 So.3d 637 (Fla. 1st DCA 2010), reh’g denied January 10, 2011.

REVERSED.

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


author: CLARK, J.

text:
    Laura LAIDLAW, Appellant, v. The KRYSTAL COMPANY, a Foreign Corporation, Appellee.
    No. 1D10-2538.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Christopher W. Hewett, of Law Office of Nooney & Roberts, Jacksonville, for Appellant.
    T. Daniel Webb, of Vernis & Bowling of North Florida, P.A., for Appellee.
   CLARK, J.

The appellant challenges a final summary judgment entered for the appellee in the appellant’s negligence action, where the appellant alleged that she slipped and fell on a wet floor in the appellee’s restaurant. The appellant’s action was based on the assertion that the appellee had not properly maintained the area, and did not sufficiently warn of the danger. Because the parties’ filings provided factual support for the appellant’s claims, the trial court should not have entered the summary judgment.

The appellee acknowledged that the appellant fell on a wet floor when she was a customer at the appellee’s restaurant. In seeking summary judgment the appellee filed the affidavits of two employees, who indicated that it had been raining and that water was tracked into the restaurant, and that the floor had recently been mopped in the area where the appellant fell. Those employees further indicated that “wet floor” signs were put out before the appellant entered the restaurant. However, the appellant’s deposition indicated that she did not see any “wet floor” signs in the restaurant, until after she fell and mentioned to one of the employees that they needed to put out some signs. That assertion is consistent with the appellant’s interrogatory answers, which likewise indicated that when she fell the floor was slippery and there was no warning that the floor was wet.

A summary judgment should be entered only when there is no genuine issue of any material fact, and even the slightest doubt as to the existence of such a question precludes summary judgment. Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006); Jackson v. H.L. Bouton Co., 630 So.2d 1173 (Fla. 1st DCA 1994); see also Cassoutt v. Cessna Aircraft Co., 660 So.2d 277 (Fla. 1st DCA 1995), rev. denied, 668 So.2d 602 (Fla.1996). The trial court should not resolve factual questions upon motion for summary judgment and instead must view the evidence and draw all inferences in favor of the opposing party. Id. Furthermore, to obtain a summary judgment the appellee was required to demonstrate the absence of any question of material fact. See Falco; Jackson. The appellee did not satisfy this burden and the court should not have resolved the case by summary judgment.

In entering the summary judgment the trial court suggested that “wet floor” signs had been put out before the appellant fell, and that the appellant did not see them. However, viewing the evidentiary filings and inferences thereon in the manner most favorable to the appellant, the filings could support an assertion that either the signs were not put out until after the appellant fell, or that if put out sooner they were not readily visible and thus did not sufficiently warn of the danger. The trial court’s contrary view does not accord with the notion that the court may not resolve factual disputes on summary judgment, and should indulge all inferences in favor of the party opposing the summary judgment. The court’s further assertion that the appellant did not show that the appellee breached any legal duty, with the court observing that the appellee acted in accordance with its safety manuals, similarly fails to credit the inferences which arise upon the evidentiary submissions, and the legal obligations with regard to maintenance of the premises in a reasonably safe condition, along with the necessity of warning of unsafe conditions. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980); see also Aaron v. Palatka Mall, 908 So.2d 574 (Fla. 5th DCA 2005); St. Josephs Hosp. v. Cowart, 891 So.2d 1039 (Fla. 2d DCA 2004); Mashni v. Lasalle Partners Mgmt., 842 So.2d 1035 (Fla. 4th DCA 2003).

The appellant’s claims comport with these theories of negligence, and state a cause of action as to the alleged negligence in the failure to maintain the premises in a reasonably safe condition, and the failure to properly warn of a dangerous condition. There was adequate evidentiary support for the claims, so as to preclude summary judgment.

The appealed order is reversed, and the case is remanded.

BENTON, C.J., and PADOVANO, J., Concur.