author: WALLACE, Judge.

text:
    Gary R. SIEGEL and Cynthia A. Leahy-Fernandez, Appellants, v. Raymond ROWE, Polly Rumbough, and Five-Star Realty, Inc., Appellees.
    Nos. 2D10-2796, 2D10-2864.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      Paul Morris of Law Offices of Paul Morris, P.A., Miami, for Appellant Gary R. Siegel.
    Cynthia A. Leahy-Fernandez, pro se.
    Kenneth R. Matthews and Clifton C. Curry, Jr., of Curry Law Group, P.A., Brandon, for Appellees.
   WALLACE, Judge.

Gary R. Siegel and Cynthia A. Leahy-Fernandez challenge awards of attorney’s fees made against them under section 57.105(1), Florida Statutes (2006). In the underlying action brought by Ms. Leahy-Fernandez, who was represented by Mr. Siegel, the circuit court ruled against Ms. Leahy-Fernandez on her claims. Because Ms. Leahy-Fernandez presented evidence at the final hearing that tended to prove the material facts necessary to establish her claims, we reverse the attorney’s fee awards.

I. THE FACTS AND PROCEDURAL BACKGROUND

Ms. Leahy-Fernandez was a petty officer in the United States Navy. Her husband, Roberto Fernandez, worked as a long-distance truck driver. Ms. Leahy-Fernandez and her husband had gradually acquired a few rental houses in the Tampa area. However, the demands of Ms. Le-ahy-Fernandez’s service in the Navy frequently required the couple to live outside the United States. When Ms. Leahy-Fer-nandez and Mr. Fernandez were in the area, they managed their rental houses themselves. But when they were out of the country, they employed Five-Star Realty, Inc., to manage their rental houses. The couple also used Five-Star Realty as their listing agent whenever they sold a property.

Raymond Rowe and Polly Rumbough operated Five-Star Realty. Neither Ms. Leahy-Fernandez nor her husband was related to Mr. Rowe or to Ms. Rumbough, and the parties did not have a close personal relationship. However, for several years Ms. Leahy-Fernandez and her husband had enjoyed a cordial business association with Mr. Rowe and Ms. Rumbough. In April 2004, Mr. Fernandez incurred a debt that he was unable to pay. He called Mr. Rowe for help, and Mr. Rowe loaned him $11,000. Mr. Fernandez timely repaid the loan with interest.

Later in 2004, after Ms. Leahy-Fernan-dez and her husband had sold their home in Hawaii, they sent a total of $50,000 to Mr. Rowe, Ms. Rumbough, and Five-Star Realty. Ms. Leahy-Fernandez and Mr. Fernandez transferred the money by three checks drawn on their joint account at a bank in Hawaii. Each of the three checks was dated November 1, 2004. One of the checks was payable to Mr. Rowe for $20,000. Another check was payable to Ms. Rumbough for $20,000. The third check was payable to Five-Star Realty for $10,000. The memorandum line on the checks payable to Mr. Rowe and Ms. Rum-bough read, “PERSONAL.” The memorandum line on the check payable to Five-Star Realty was blank. Mr. Rowe, Ms. Rumbough, and Five-Star Realty received the checks by mail from Hawaii and deposited the checks into their respective bank accounts. The checks were paid in the regular course of business.

Neither of the parties sent any letters or e-mails establishing the purpose for which Ms. Leahy-Fernandez and Mr. Fernandez sent the $50,000. Mr. Rowe, Ms. Rum-bough, and Five-Star Realty did not sign a promissory note or other memorandum with a promise to repay the money. In fact, they did not even send a written acknowledgment of receipt of the funds. There were never any payments of interest or principal indicating that the parties regarded the transaction as a loan. Thus, except for the cancelled checks, the $50,000 transaction between the two unrelated parties was completely undocumented. In addition, there were no third-party witnesses with knowledge of the parties’ intent.

On March 15, 2007, approximately two and one-half years after sending the $50,000, Ms. Leahy-Fernandez and Mr. Fernandez filed an action against Mr. Rowe, Ms. Rumbough, and Five-Star Realty to recover the money. Mr. Fernandez was diagnosed with cancer in May 2007; he died in 2008 while the action was pending. Neither of the parties arranged for the taking of Mr. Fernandez’s deposition.

In a second amended complaint filed after Mr. Fernandez’s death, Ms. Leahy-Fernandez asserted her ownership of the entire claim as the surviving spouse of Mr. Fernandez. She alleged that the $50,000 was a loan that Mr. Rowe, Ms. Rumbough, and Five-Star Realty had promised to pay on or before November 1, 2006. Ms. Le-ahy-Fernandez alleged further that Mr. Rowe, Ms. Rumbough, and Five-Star Realty had promised and failed to deliver a note for the loan secured by a mortgage on the business premises of Five-Star Realty. In her second amended complaint, Ms. Le-ahy-Fernandez asserted four claims against Mr. Rowe, Ms. Rumbough, and Five-Star Realty: Count I, money lent; Count II, fraud in the inducement; Count III, a request for the imposition of a constructive trust; and Count IV, a claim for the imposition of an equitable mortgage on the business premises of Five-Star Realty.

Mr. Rowe, Ms. Rumbough, and Five-Star Realty took the position that Ms. Leahy-Fernandez and Mr. Fernandez sent them the $50,000 as a gift rather than as a loan. They also claimed that the Statute of Frauds, section 725.01, Florida Statutes (2004), barred Ms. Leahy-Fernandez’s claims. In support of their defense based on the Statute of Frauds, Mr. Rowe, Ms. Rumbough, and Five-Star Realty alleged that the purported loan agreement was unenforceable because it was not in writing and was not signed by them.

II. THE EVIDENCE AT THE FINAL HEARING

The pretrial conference order summarized the issues to be tried as follows: “Whether the $50,000.00 was a gift or a loan. If the $50,000.00 was a loan, then did the Defendants fraudulently induce the loan, and if so, should a constructive trust/equitable mortgage be awarded.” The circuit court tried the case without a jury. At the final hearing, Ms. Leahy-Fernandez, Mr. Rowe, and Ms. Rumbough were the only witnesses who testified. We review their testimony briefly.

Ms. Leahy-Fernandez identified the three cancelled checks, and they were received in evidence. Ms. Leahy-Fernandez testified that she and Mr. Fernandez finally agreed to loan the $50,000 after Mr. Rowe and Ms. Rumbough bombarded them by telephone for three weeks with requests for the money. Although there were three separate checks, there was a single loan for $50,000. According to Ms. Leahy-Fernandez, Mr. Rowe and Ms. Rumbough promised to provide a note for the loan secured by a mortgage on the business premises of Five-Star Realty. Despite repeated requests, Ms. Leahy-Fernandez and her husband never received the promised documentation for the loan.

Mr. Rowe and Ms. Rumbough denied asking Ms. Leahy-Fernandez and Mr. Fernandez for any money. They testified that the three checks arrived unexpectedly one day in the mail at the Five-Star Realty office in Tampa. At the time, Mr. Rowe and Ms. Rumbough were taking care of personal matters in North Carolina. According to Mr. Rowe and Ms. Rumbough, Ms. Leahy-Fernandez and Mr. Fernandez sent the $50,000 to thank them for their services over the years. Mr. Rowe and Ms. Rumbough denied making any promise to repay the money. They both testified that when they received the funds, they never had any intent to repay Ms. Leahy-Fernandez and Mr. Fernandez.

III. THE CIRCUIT COURT’S RULINGS

At the conclusion of Ms. Leahy-Fernan-dez’s testimony, the circuit court ruled that the Statute of Frauds barred Count I, the claim for money lent. The defense theory was that the claimed oral promise to repay the $50,000 was unenforceable because of the absence of a signed memorandum acknowledging a promise to pay. At the conclusion of the case, the circuit court made an extensive oral ruling analyzing in considerable detail the evidence presented. Although the circuit ruled against Ms. Le-ahy-Fernandez on the three remaining counts of the second amended complaint, the circuit court’s observations concerning the conflicts in the parties’ testimony are noteworthy:

Well, the difficult part of this job is I have to be the decision maker which isn’t an easy job[;] however[,] the law does give me some guidance which is why we have laws. The problem that we have here is that we have opposing stories and opposing evidence ....
First of all, the law requires that the burden of proof be by the greater weight of the evidence and that is the Plaintiffs burden to meet that proof....
I have not heard sufficient evidence to prove fraud in the inducement in this case. I am not saying that either side has misrepresented their understanding of the facts here today, but the burden rests clearly on the Plaintiff and I haven’t heard sufficient evidence to establish fraud in the inducement....
Now, as far as the unjust enrichment claim, ... I struggled with that.
And both sides have testified to things that give me [p]ause. ...
There’s not one piece of evidence received by the Court that shows any letter or email until we get into the correspondence of 2007 which, again, the burden is on the Plaintiff to establish that there was some expectation to receive a note or mortgage or some kind of securitization of this alleged loan and there isn’t anything] other than her testimony which is refuted directly by the Defendant’s testimony. And, although I find this transaction was exceedingly strange and I do not fully understand it, I am confident that the evidence does not support the Plaintiffs complaint as to unjust enrichment as well and I have no choice, as a matter of law, but to rule in favor of the Defendants.

(Emphasis added.) In noting its deliberation about the evidence in the case and the testimony from both sides that gave it pause for thought, the circuit court expressly recognized that its ruling necessarily resolved conflicting testimony in favor of Mr. Rowe, Ms. Rumbough, and Five-Star Realty. Thus Ms. Leahy-Fernan-dez’s testimony — together with the can-celled checks — supported her claims, but her showing was not sufficient to overcome her burden of proof in light of the other evidence in the case.

After the conclusion of the final hearing, the circuit court entered a final judgment on the merits against Ms. Leahy-Fernan-dez and in favor of Mr. Rowe, Ms. Rum-bough, and Five-Star Realty. Ms. Leahy-Fernandez did not' appeal the final judgment against her on the merits of the action. Next, the circuit court entered an order granting a motion for attorney’s fees under section 57.105(1) filed by Mr. Rowe, Ms. Rumbough, and Five-Star Realty. In its order, the circuit court ruled that Ms. Leahy-Fernandez and Mr. Siegel “knew or should have known at the time of the filing of the Second Amended Complaint that no admissible evidence existed to support [Ms. Leahy-Fernandez’s] claims.”

After a separate hearing on the amount of fees and costs, the circuit court ruled that Mr. Rowe, Ms. Rumbough, and Five-Star Realty were entitled to recover $86,276.25 for attorney’s fees, $2240 for expert witness fees, and $8897.64 in costs, for a total of $42,413.89. The circuit court ordered that Mr. Siegel would pay one-half of the amount assessed and entered a final judgment against him for $21,206.95. The circuit court also assessed the balance of the amount due against Ms. Leahy-Fer-nandez but withheld the entry of a final judgment against her because of her pending bankruptcy proceeding.

Both Mr. Siegel and Ms. Leahy-Fernan-dez timely appealed the order assessing the attorney’s fees and costs against them. On Ms. Leahy-Fernandez’s motion, this court consolidated the appeals. We also granted Ms. Leahy-Fernandez’s motion to adopt the pertinent arguments in the initial brief filed by Mr. Siegel.

IV. THE STANDARD OF REVIEW

Ms. Leahy-Fernandez did not appeal the final judgment against her on the merits of her claims seeking the recovery of the $50,000 and related relief. Therefore, we do not consider the circuit court’s ruling on the merits of the underlying action. Instead, our task is to review the circuit court’s ruling that Ms. Leahy-Fer-nandez and Mr. Siegel knew or should have known when they filed the second amended complaint that there was no admissible evidence to support Ms. Leahy-Fernandez’s claims. See Peyton v. Horner, 920 So.2d 180, 188 (Fla. 2d DCA 2006). The standard of review applicable to the circuit court’s award of fees under section 57.105(1) is abuse of discretion. Id.; Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006).

V. THE APPLICABLE LAW

Section 57.105(1), Florida Statutes (2006), provides as follows:

Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

In pertinent part, section 57.105(1) requires a court to award a reasonable attorney’s fee to the prevailing party in equal amounts to be paid by the losing party and the losing party’s attorney where the court finds that the losing party or the losing party’s attorney knew or should have known that a claim was not supported by the material facts necessary to establish it. In re Forfeiture of 1997 Jeep Cherokee, 898 So.2d 223, 225 (Fla. 2d DCA 2005). A claim is “supported by the material facts” within the meaning of the statute when “the party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton v. Forrera, 913 So.2d 5, 8 n. 1 (Fla. 1st DCA 2005).

“A finding that a party is entitled to recover attorney’s fees under section 57.105 must be based upon substantial, competent evidence presented at the hearing on attorney’s fees or otherwise before the court and in the record.” Mason v. Highlands Cnty. Bd. of Cnty. Comm’rs, 817 So.2d 922, 923 (Fla. 2d DCA 2002). “When assessing attorney’s fees against a losing party’s attorney, the trial court must find that there were no justiciable issues of law or fact and that the losing party’s attorney did not act in good faith based on the representations of his or her client.” Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1143 (Fla. 4th DCA 2001).

VI. DISCUSSION

Our task is to determine whether, under the circumstances of this case, the circuit court abused its discretion in awarding fees under section 57.105(1) against Mr. Siegel and Ms. Leahy-Fernandez. The evidence established that Ms. Leahy-Fer-nandez and Mr. Fernandez entered into a financial transaction that — at least for them — involved a very significant amount of money. Unfortunately, they failed to obtain legal representation before proceeding. Consequently, the transaction was inadequately documented. The problems posed by the inadequacy of the documentation were compounded by the omission to obtain the deposition of Mr. Fernandez after the lawsuit was filed.

When the matter went to trial, the circuit court faced the difficult task of sorting through the parties’ conflicting testimony to determine the operative facts. As the plaintiff, Ms. Leahy-Fernandez had the burden to establish by competent evidence each material fact necessary to establish her claims. See Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519, 521 (Fla. 1st DCA 1961). In the absence of adequate documentation for the transaction, obtaining a favorable outcome for Ms. Leahy-Fernandez was necessarily an uphill battle. As it happened, the circuit court resolved the conflicts in the testimony against Ms. Leahy-Fernandez, and she lost her case as a result.

However, the circuit court’s finding that “no admissible evidence existed to support [Ms. Leahy-Fernandez’s] claims” is not supported either by the record or the circuit court’s own oral announcement of its ruling on the merits. Ms. Leahy-Fernandez’s claims were “supported by the material facts” necessary to establish them because her testimony — if believed by the circuit court — would have been sufficient to prove the claims. See Albritton, 913 So.2d at 8 n. 1. Moreover, in its oral ruling, the circuit court expressly acknowledged that the case involved “opposing stories and opposing evidence.” The conflicting testimony from the parties was sufficient not only to give the circuit court “pause,” but also to require an internal “struggle” for the circuit court to resolve the case. Where, as in this case, the losing party presents competent, substantial evidence in support of the claims or defenses presented and the trial court determines the issues of fact adversely to the losing party based on conflicting evidence, section 57.105(1) does not authorize an award of attorney’s fees against the attorney for the losing party and his or her client. Thus we conclude that the circuit court abused its discretion in awarding attorney’s fees against Mr. Siegel and Ms. Leahy-Fernandez.

This court’s decision in Schultz v. Williams, 472 So.2d 1347 (Fla. 2d DCA 1985), supports our conclusion. The underlying action in Schultz involved a challenge by several property owners to the property appraiser’s assessment of certain condominium units that they owned. Id. at 1347. The parties engaged in considerable discovery, and “several witnesses gave conflicting testimony at trial.” Id. at 1348. The plaintiffs ultimately prevailed on their claims. Id. After winning at trial, the plaintiffs moved for fees under section 57.105. Id. at 1347. The trial court granted the motion and made an award of attorney’s fees to the plaintiffs against the property appraiser. Id.

On the property appraiser’s appeal of the fee award, the plaintiffs argued that the property appraiser’s defense concerning his compliance with the statutory mandates for determining just valuation was “baseless.” Id. at 1348. This court rejected the plaintiffs’ argument and reversed the fee award. After expressly noting the presentation of “considerable conflicting testimony” at trial, this court went on to say:

Even at the conclusion of the trial, the court apparently had not reached a decision. The trial judge required counsel for both parties to submit proposed findings of facts and conclusions of law. The judge then entered his final judgment in favor of the plaintiffs. That judgment included a ten-page analysis of the application of the facts to each of the criteria set forth in section 193.011.
Trial courts must be cautious not to award attorney’s fees under section 57.105 merely because a party’s defense is unavailing. Here, the issues were resolved against [the property appraiser]. Yet, after an examination of the record, we cannot say that his defense of his method of assessment of apartment units converted to condominiums was wholly without merit.

Id. Thus Schultz stands for the proposition that when opposing parties present competent, substantial evidence in support of their claims and the trier of fact must resolve conflicting testimony to decide the case, the matter is not frivolous for the purpose of awarding fees under section 57.105. Cf. Hernandez v. Leiva, 391 So.2d 292, 294-95 (Fla. 3d DCA 1980) (affirming an award of fees under section 57.105 after a trial on liability where the losing party called no witnesses in her behalf; only nominally attempted to create an issue by cross-examination of the prevailing party’s witness; and presented testimony that the trial court refused to consider because, at most, it raised an affirmative defense that had not been pleaded).

We recognize that this court decided Schultz in 1985, well before the 1999 amendments to section 57.105 “lowered the bar a party must overcome before becoming entitled to attorney’s fees pursuant to section 57.105.” Albritton, 913 So.2d at 8. Nevertheless, we think that the principle recognized in Schultz survived the 1999 amendments to the statute. See Peyton, 920 So.2d at 183-84 (reversing an award of attorney’s fees under a post-1999 version of the statute where the losing party advanced a plausible interpretation of an assignment that the trial court determined to be incorrect); Asinmaz v. Semrau, 42 So.3d 955, 959 (Fla. 4th DCA 2010) (determining that a jeweler’s action for defamation against a customer was not frivolous under a post-1999 version of the statute where “the case was not completely without merit or contradicted by overwhelming evidence”). One of the main reasons we have trials is to resolve disputes involving the presentation of conflicting evidence by the litigants. See Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501, 505 (1881) (“A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue.”). Section 57.105 does not penalize losing parties and their attorneys when they present competent, substantial evidence in support of the losing parties’ claims or defenses simply because the trier of fact resolves conflicting testimony against the losers. A contrary conclusion would make engaging in litigation a very risky business for both lawyers and their clients.

Finally, we have not overlooked the Statute of Frauds defense raised by Mr. Rowe, Ms. Rumbough, and Five-Star Realty. The circuit court erred in ruling that the Statute of Frauds barred Ms. Leahy-Fernandez’s claim for money lent. To be sure, there was no signed memorandum evidencing the alleged loan. But Ms. Leahy-Fernandez’s claim was for a direct promise to pay, not for a promise to pay another’s debt. Accordingly, her claim for money lent was not within the purview of the Statute of Frauds. See Larnel Builders, Inc. v. U.S. Concrete Pipe Co., 117 So.2d 438, 438 (Fla. 3d DCA 1960); see also Jim & Slim’s Tool Supply, Inc. v. Metro Cmtys. Corp., 328 So.2d 213, 215 (Fla. 2d DCA 1976) (“The pivotal question on the applicability of [the Statute of Frauds] is whether the promise is, in fact, an actual assumption of the liability of another with consideration flowing only to such other or, to the contrary, is an original undertaking of the promisor himself supported by independent consideration flowing to him.”).

For the foregoing reasons, we reverse the final judgment to the extent that it awards fees and costs under section 57.105(1) against Mr. Siegel and Ms. Le-ahy-Fernandez. However, Mr. Rowe, Ms. Rumbough, and Five-Star Realty are entitled to recover their taxable costs against Ms. Leahy-Fernandez. § 57.041(1).

Reversed.

LaROSE and BLACK, JJ., Concur.

      . When asked why there were three separate checks, Ms. Leahy-Fernandez replied, "When I got on the phone with [Mr. Rowe,] that’s how he told me he wanted the checks done. He told me specifically how he wanted them written out.”

      . The circuit court erred in assessing one-half of the $2240 for expert witness fees and one-half of the $3897.64 in costs against Mr. Siegel. "[S]ection 57.105 does not provide for the imposition of costs against the losing party's attorney.” Berman & Feldman v. Winn Dixie, Inc., 684 So.2d 320, 323 (Fla. 4th DCA 1996).

      . On March 15, 2007, approximately two and one-half years after sending the $50,000, Ms. Leahy-Fernandez filed a petition under Chapter 13 of the United States Bankruptcy Code. Later, the bankruptcy court granted relief from the automatic stay to permit Mr. Rowe, Ms. Rumbough, and Five-Star Realty to liquidate their claim for attorney’s fees.


source: Caselaw Access Project

author: SILBERMAN, Chief Judge.

license: Public Domain

text:
    Linda M. GIZAW, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-428.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      Andrea M. Norgard of Norgard and Norgard, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Following a traffic stop, Lidia M. Gizaw was arrested after the police discovered a suitcase containing cannabis in the trunk of the car she was driving. A jury found her guilty of trafficking in cannabis; possession of a conveyance used for trafficking, sale, or manufacturing of controlled substances; and possession of drug paraphernalia. We reverse because, in this constructive possession case, the State failed to establish Gizaw’s knowledge of the presence of the cannabis or her dominion and control over the suitcase containing the cannabis.

The evidence presented during trial established that at 2:00 a.m. on April 14, 2009, Deputy Butler pulled over a silver Toyota Corolla for speeding. Gizaw, the driver of the car, produced her driver’s license. The passenger produced identification in the name of Michael Desamours, and a records check showed that Desam-ours was on probation for drug-related offenses.

Deputy Butler radioed for backup, and Deputy Sellers responded. Deputy Butler then asked Gizaw for permission to search the car for illegal narcotics. Gizaw asked why he wanted to search, and Deputy Butler told her it was because he had received information that the passenger was on probation for drug-related offenses. Gizaw told the deputy there were no drugs in the vehicle but gave him permission to search.

Deputy Butler searched the car’s interi- or. He detected a faint odor of raw cannabis that appeared to be a residual smell, but he found no drugs. Deputy Butler explained there is a difference between the smell of raw and burning cannabis. He acknowledged that not everyone would be familiar with the smell of raw cannabis. In fact, Deputy Butler did not know what raw cannabis smelled like until he started working in law enforcement.

While Deputy Butler searched the interior of the car, Deputy Sellers searched the trunk. As he approached the trunk, Deputy Sellers also detected an odor of raw cannabis. When he opened the trunk, the odor became very strong. Inside the trunk he found a black suitcase containing two bundles of cannabis completely wrapped in duct tape. The suitcase also contained three pair of men’s jeans which appeared to be in the passenger’s size. Next to the suitcase, the deputy found other clothing items and a box of sandwich bags. Behind the suitcase, he found some college text books that belonged to Gizaw. No fingerprints were found on the suitcase or the duct tape, and nothing belonging to Gizaw was found in the suitcase.

At some point during the encounter with the deputies, the passenger admitted that he had given Deputy Butler a false identification. The passenger admitted his real name was Kebra Nelson, and he was Gi-zaw’s boyfriend. Gizaw and Nelson were arrested for trafficking in cannabis and transported to the police station. Gizaw was visibly upset and crying, but Nelson was not emotional.

After arriving at the station at approximately 4:00 a.m., Gizaw gave a statement to Detectives Varnadore and Anderson. Gizaw insisted she did not know anything about the cannabis in the suitcase. She and Nelson were returning from Miami after having driven there earlier that day to visit Nelson’s grandmother. Detective Varnadore stated that Gizaw did not know Nelson’s grandmother’s actual name or address, but she had the grandmother’s telephone number on her cell phone. When he asked for permission to call the number, Gizaw refused.

When she was arrested, Gizaw had $939 in cash on her person. According to Detective Anderson, the money was loose and not bundled in the manner commonly used by drug dealers. He acknowledged that Gizaw may have told him that the money was for tuition for her next semester at Hillsborough Community College (HCC). Nelson, who refused to speak to the detectives, had $640 in cash and a razor knife on his person.

Gizaw testified that she was twenty-four years old and a college student at HCC. In April 2009 she was planning to reenroll for the summer semester. She explained that Nelson was her on-again and off-again boyfriend. On April 26, 2009, Gizaw went to Miami with Nelson to visit his grandmother, who was elderly and not feeling well. They left in the Toyota after her morning class. Nelson drove the car to Miami because Gizaw was tired and had a headache.

Gizaw stated that she had never before seen the black suitcase. The suitcase was not in her car when they left for Miami, and she did not access the trunk of the car before they left to return home. When she and Nelson arrived in Miami they visited with Nelson’s grandmother. Gizaw then took a nap because she still had a headache. Nelson kept the keys to the Toyota while they were in Miami.

Gizaw and Nelson left for home late in the evening because Nelson had an appointment early the next morning. Gizaw claimed she did not smell anything in the car. She stated that she does not smoke cannabis and does not know what it smells like. Gizaw admitted that she was speeding when Deputy Butler stopped her and that she agreed to a search of her car.

Gizaw explained that she only knew the grandmother as “Mama” and did not know the address of the house. Nelson drove to the grandmother’s house, and Gizaw had not previously been there. Although she had the phone number for Nelson’s grandmother, she did not want to call at 4:00 in the morning to say that she had been arrested. She had been cooperating with Detective Varnadore but then got frustrated by some of the things that he was saying to her.

The jury returned a verdict of guilty as charged on each count. The trial court sentenced Gizaw to forty-two months and three days in prison with a three-year minimum mandatory on count one. On count two, the court imposed a concurrent sentence of forty-two months and three days in prison. The court sentenced Gi-zaw to time served on count three.

Of the three issues that Gizaw raises on appeal, one merits discussion. Gizaw argues that the trial court erred in denying her motion for judgment of acquittal because the State failed to establish her constructive possession of the cannabis. She contends that the State failed to prove that she had knowledge of the presence of cannabis or that she had dominion and control over the cannabis. Because we agree that the State failed to carry its burden of proof, we reverse and remand with instructions to discharge Gizaw.

This court conducts a de novo review of the denial of a motion for judgment of acquittal and must view the evidence in the light most favorable to the State. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002). A conviction should be reversed if it is not supported by competent, substantial evidence. See id.

In order to prove the felony charges in this case, the State was required to establish that Gizaw knowingly possessed the cannabis. See §§ 893.135(l)(a)(l), 893.1351(2), 893.147(l)(a), Fla. Stat. (2008). Because Gizaw was not in actual possession of the cannabis, the State was required to prove her constructive possession of the suitcase containing the cannabis. See Culver v. State, 990 So.2d 1206, 1208 (Fla. 2d DCA 2008). The State thus had to prove that Gizaw knew of the presence of the suitcase with the cannabis inside and was able to exercise dominion and control over it. Id.

If the area in which the drugs were found had been in Gizaw’s exclusive possession, then knowledge and control could have been inferred. See Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999). However, Gizaw and Nelson were traveling together in her car, and Nelson had access to the trunk during the visit to Miami. As a result, the State had to establish Gizaw’s knowledge of the cannabis and dominion and control over it by independent proof. See S.B. v. State, 657 So.2d 1252, 1253 (Fla. 2d DCA 1995) (concluding that knowledge and dominion and control could not be inferred because the contraband was in a car trunk that was accessible to all of the occupants). This independent proof must establish more than a mere proximity to the drugs. Culver, 990 So.2d at 1209.

The facts of this case are analogous to those in K.A.K. v. State, 885 So.2d 405 (Fla. 2d DCA 2004). In K.A.K., the juvenile defendant was the driver of a vehicle that contained three passengers and was involved in an automobile accident. 885 So.2d at 406. When the sheriffs deputy arrived on the scene, he noticed what appeared to be a glass pipe used to smoke drugs on the floorboard of the driver’s side. The deputy searched the car’s interior and discovered a leafy substance that appeared to be cannabis scattered about the driver’s side. In the open glove compartment, the deputy found a box containing rolling papers and tweezers with a burnt tip.

The State filed a petition charging K.A.K. with possession of cannabis and possession of drug paraphernalia for the pipe, rolling papers, and tweezers. Id. At the adjudicatory hearing, the State presented the testimony of the sheriffs deputy who searched the car. K.A.K. also testified and claimed she did not know that the contraband items were inside the car. She explained that the impact from the accident was severe, causing loose items inside the car to fly around. While the car had been in her exclusive possession the day before the accident, she had not looked inside the glove compartment and did not know it contained the paraphernalia. She did not see any of the contraband items in the car before getting inside, and no one had any of the contraband items out before the accident. Id.

The trial court found that the State had failed to establish K.A.K.’s constructive possession of the marijuana or glass pipe. Id. But the court found the evidence sufficient to prove her constructive possession of the items in the glove compartment. On appeal, this court reversed as to the items in the glove compartment, concluding that the evidence did not establish a prima facie case of possession. Id. at 407.

This court explained that the glove compartment had been open and was accessible to all the occupants before the deputy’s search. It was possible that any one of the occupants had placed the paraphernalia inside the glove compartment between the time of the accident and the time the deputy arrived at the scene. This possibility was bolstered by the fact that none of the other occupants testified and disclaimed ownership of the paraphernalia. The court also determined that the fact K.A.K. was the owner and driver of the car did not constitute sufficient independent proof of her knowledge or dominion and control over the paraphernalia in the glove compartment. Id.; see also Culver, 990 So.2d at 1209-10 (concluding that the State failed to establish the defendant driver’s constructive possession of cocaine found in a baggie in a brown paper bag located behind the passenger’s seat and noting the absence of “any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that [the defendant] had dominion and control over” the bag or baggie).

Similarly, in this case the State did not present any independent proof of Gizaw’s knowledge or dominion and control over the cannabis found in the trunk of the car. Although the car was Gizaw’s, Nelson had the keys to it and access to the trunk during the visit to Miami. Also, while the State asserted that Gizaw’s possession of $989 in cash constituted independent proof of her knowledge and dominion and control over the cannabis, no evidence tied the money to drug purchases or sales. The State’s theory that the cannabis was obtained in a drug buy does not explain why Gizaw still had that large amount of cash after the supposed buy. Further, the State did not present any evidence contrary to the hypothesis that the money was for Gizaw’s tuition.

The State also did not present evidence connecting Gizaw’s trip to Miami to the cannabis in the trunk. The only evidence of Gizaw’s intended destination in Miami was her testimony that she went there to visit Nelson’s grandmother. The State did not present any testimony from Nelson disclaiming ownership of the suitcase that contained the cannabis, and the suitcase had no fingerprints or belongings of Gizaw. Apart from the cannabis, the suitcase only contained jeans that appeared to be in Nelson’s size.

In cases relying on circumstantial evidence, such as this one, the evidence must also exclude any reasonable hypothesis of innocence propounded by the defense. See Pagan, 830 So.2d at 803. The evidence must “lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.’ ” Lindsey v. State, 14 So.3d 211, 215 (Fla.2009) (quoting Frank v. State, 121 Fla. 53, 163 So. 223, 223 (1935)).

[E]vidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, [ ] is not sufficient to sustain [a] conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.

Id. (emphasis added) (quoting Ballard v. State, 923 So.2d 475, 482 (Fla.2006)). Thus, this court “ ‘must determine whether competent evidence is present to support an inference of guilt to the exclusion of all other inferences.’ ” Id. (quoting Ballard, 923 So.2d at 485). In cases involving jointly occupied vehicles, the evidence must “exclude every reasonable hypothesis of innocence and rule out the possibility that the [drugs] belonged to the passenger.” Daniels v. State, 111 So.2d 1113, 1118 (Fla. 4th DCA 2001).

In Daniels, the defendant driver was pulled over for a traffic infraction. Id. at 1114. Upon stopping the car, the defendant leaned towards the passenger’s floorboard. When the officers approached, they smelled the odor of marijuana emanating from the car. The defendant, who was nervous and agitated, immediately exited the car. The passenger dropped a gray vial in the rear passenger compartment before exiting the car. This vial contained forty-five cocaine rocks. The police discovered baggies of marijuana when they searched the passenger incident to arrest. When they searched the defendant, the police discovered $1031 in cash in his pocket.

The defendant was charged with possession of the cocaine found in the gray vial. At trial, the State presented the testimony of the officers who stopped the car and conducted the search. One officer testified that the denominations in currency possessed by the defendant “were consistent with the sale of crack cocaine.” Id.

The passenger testified that the cocaine in the gray vial belonged to him and that the defendant did not know he had the cocaine in his possession. Id. at 1115. The defendant testified that he was a community college student and was childhood friends with the passenger. Although he knew that the passenger sometimes sold drugs, he insisted that he warned the passenger not to bring drugs in the car with him. He explained that he had leaned over into the passenger area to retrieve his license, registration, and proof of insurance. He also had an unrefuted explanation for his possession of the large amount of cash. He said that $800 of it had been given to him by his relatives that morning to pay their utility bills. The remainder of the money had been paid to him for work in a relative’s roofing business. The defendant adamantly denied knowledge of the drugs in the gray vial.

The Fourth District reversed the defendant’s conviction for possession of the cocaine, concluding that the State had failed to present independent proof establishing the defendant’s knowledge of the cocaine or connecting the defendant to the cocaine. Id. at 1117. The court rejected the State’s argument that the defendant’s act of leaning towards the passenger area, his nervousness, the odor of marijuana coming from his vehicle, his association with a known drug dealer, and his possession of a large amount of cash constituted sufficient independent evidence of constructive possession. The court concluded that “[t]he evidence failed to exclude every reasonable hypothesis of innocence and rule out the possibility that the cocaine belonged to the passenger.” Id. at 1118.

As in Daniels, the State’s evidence in this case does not rule out the possibility that the cannabis belonged to the passenger. Gizaw’s testimony was unrefuted that she and Nelson drove to Miami to visit his elderly grandmother, that Nelson had the car keys during the visit, and that he must have placed the suitcase containing the cannabis in the trunk while she was napping. Similar to the situation in Daniels, there was no evidence linking her to the container holding the drugs. In both cases, there was an odor of cannabis in the car. But in this case Deputy Butler testified that the odor was a residual, faint odor and it was not one with which everyone was familiar. Gizaw testified that she did not smell anything unusual in the car and explained her lack of familiarity with cannabis.

As with the defendant in Daniels, Gizaw had a significant amount of cash in her possession. Unlike in Daniels, where an officer testified that the denominations of the money were consistent with the sale of drugs, the detective’s testimony in this case established that Gizaw’s money was not held in the manner commonly used by drug dealers. Further, the defendant in Daniels was nervous and agitated, but Gi-zaw was generally cooperative, though upset. Although she would not agree to the detective calling Nelson’s grandmother at 4:00 a.m., it was because she did not want to disturb the elderly woman in the middle of the night and she became frustrated with the accusations against her.

We recognize that, in Daniels, the passenger admitted that the cocaine belonged to him and that the defendant did not know he had it. Although Nelson made no such admission in this case, the evidence is nevertheless supportive of his sole possession of the drugs. In fact, the evidence against Nelson supports Gizaw’s reasonable hypothesis. Men’s jeans in Nelson’s size were the only items found inside the suitcase with the cannabis. The only items in the trunk identified as Gizaw’s were found behind the suitcase, and no items identified as Gizaw’s were shown to have been placed in the trunk after the suitcase. Nelson drove the Toyota to Miami and kept the keys during the visit and during Gizaw’s nap. Finally, while Nelson produced false identification and refused to talk to law enforcement, Gizaw cooperated by giving consent to search and speaking with law enforcement.

In summary, the State failed to present any evidence linking Gizaw to the cannabis other than her mere proximity to it. The State’s evidence failed to establish that Gizaw had knowledge of the presence of the cannabis or dominion and control over the suitcase containing the cannabis. Accordingly, the trial court erred in denying Gizaw’s motion for judgment of acquittal, and we reverse and remand with directions for the court to discharge Gizaw.

Reversed and remanded with directions.

CASANUEVA and LaROSE, JJ., Concur.

      . Gizaw also argues that the trial court erred in allowing the deputy and detectives to testify regarding patterns of behavior related to drug trafficking. She asserts that such testimony about generalized patterns of criminal behavior presented as proof of guilt is improper. See Austin v. State, 44 So.3d 1260, 1262 (Fla. 1st DCA 2010) ("Testimony about the general behavior of certain kinds of offenders is inadmissible as substantive proof of a defendant’s guilt.”); White v. State, 971 So.2d 972, 973 (Fla. 4th DCA 2008) ("General criminal behavior testimony based upon an officer’s experience with other cases is inadmissible as substantive proof of a defendant's guilt.”). Her final argument is that she should have been granted a new trial due to newly discovered evidence. Our disposition of the case on the constructive possession issue renders the other two issues moot.


author: MAY, C.J.

text:
    L.W., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-1352.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.

      Philip J. Massa, Regional Counsel and J. Patrick Reynolds, Assistant Regional Counsel, West Palm Beach, for appellant.
    William W. Booth, West Palm Beach, for appellee. Hillary S. Kambour, Miami, for Guardian Ad Litem Program.
   MAY, C.J.

The mother appeals an order terminating her parental rights. She argues the court erred in denying her motion to dismiss the amended petition, which failed to allege reasonable efforts to preserve and reunify the family, that termination was not the least restrictive means of protecting the child, and that the mother was not responsible for the lack of contact with the child. We find no error and affirm.

In March 2010, the trial court found probable cause to shelter the child based upon allegations of sexual abuse by the father and failure to protect by the mother. The child was placed with her paternal grandparents. The court further ordered the mother to have no contact with the child. The Department of Children and Families (“DCF”) initiated a dependency petition.

In May, the father surrendered his parental rights, and DCF filed a Petition for Termination of Parental Rights and Permanent Commitment of the Minor Child. DCF alleged the mother had abandoned the child and could not be located. When DCF located the mother, it sought to provide her with a reunification plan, to which the child objected.

In September, the child filed a Notice Adopting the Petition. DCF subsequently dismissed the petition in February, 2011. A week later, the child moved to amend the petition to name the child as petitioner. The court granted the motion.

The mother moved to dismiss and argued that no reasonable efforts to preserve and reunify the family had been made. The court denied the motion.

Prior to trial, the parties stipulated that the mother had not been provided a Case Plan and there had been no adjudication of dependency. They also stipulated that the child had not seen the mother for at least three years and nine months.

The evidence revealed that the child had lived with the mother until she was eight years old. The father had little contact with the child until 2000 when he and the mother became engaged in a contentious paternity action. Around the same time, the paternal grandfather and step-grandmother moved to Florida.

In December 2005, the father was made the primary residential parent with shared parenting responsibilities; the mother was given liberal visitation and ordered to pay child support. The father, however, thwarted the mother’s timesharing with the child. The mother filed several pro se motions to enforce her visitation rights. In December 2006, a magistrate found the mother’s inability to visit the child was due to the father’s wrongful actions.

The mother never paid any support and failed to provide clothing, housing, and medical treatment over the next five years. The mother never wrote to the daughter, and last visited with the child nearly four years before the petition was filed. At that visit, the mother engaged in sexual activity with her boyfriend in the presence of the child. The mother testified that after trying to re-establish contact without success, she “let it lie.” She admitted that she did not have the financial ability to support the child.

The child testified that she wanted a fresh start; she also stated that she does not relate to her mother and feels that her mother does not have her “life in order.” The child further explained that there is no bond other than a biological one between the two. The child feels loved by her grandparents, who want to adopt her.

The child’s therapist testified that it was in the best interests of the child to be in a stable, safe environment, and that her current placement was highly conducive to her recovery. To remove the child from the grandparents would be emotionally damaging to her and not in her best interests.

A psychologist and forensic examiner explained that the child was exposed to parental estrangement rather than parental alienation. Parental estrangement is a child’s healthy adaptive response to trauma, as opposed to parental alienation, which occurs when one parent provides erroneous information to the child resulting in unwarranted rejection of the other parent.

The trial court orally announced its findings, which were later reduced to writing. The court found the child to be “mature, articulate, smart, [and] intellectual.” The court granted the amended petition. It is from this order that the mother now appeals.

The mother’s argument is essentially that DCF’s failure to offer a Case Plan and make reasonable efforts to preserve and reunify the family requires a reversal of the Termination Order. The mother also argues that termination of parental rights was not the least restrictive means to protect the child. And last, the mother argues that her lack of contact with the child was not her fault.

The child responds that the appeal of the order denying the motion to dismiss is untimely. Alternatively, she maintains that the mother’s stipulated time away from the child was sufficient to establish abandonment, that termination was in the child’s manifest best interests, and that the least restrictive means test should not trump the child’s best interests.

“Where the trial court’s finding that there is clear and convincing evidence to terminate parental rights is supported by competent, substantial evidence, the appellate court has no choice but to affirm.” D.G. v. Dep’t of Children & Families, — So.3d -, -, 2011 WL 2462847 (Fla. 4th DCA 2011) (citing In re Baby E.A.W., 658 So.2d 961, 967 (Fla.1995)).

Abandonment is a sufficient ground for terminating parental rights. See § 39.806(l)(b), Fla. Stat. (2011). Section 39.01(1) defines abandonment as: “a situation in which the parent or legal custodian of a child ... while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child.” § 39.01(1), Fla. Stat. The statute further describes “establishing] or maintaining] a substantial and positive relationship” as including “frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child.” Id.

The competent, substantial evidence supports the trial court’s order. As the trial court explained:

26. There is clear and convincing evidence that there has been no contact by and between the mother and [child] since March 12, 2007. There is no question that mom’s efforts were thwarted by the father, by the mom’s own poverty, and by the mom’s own thinking and suspicions. The mom made the decision to not do anything further since March 12, 2007. She did nothing in 2008, 2009, 2010. She aban[-]doned [the child]. It’s been four years and she has had a terrible time from a financial point of view, from a health point of view, and from being suspicious. That doesn’t mean that mom has forgotten her daughter or that she doesn’t want to have a relationship with her daughter. However, it’s too late to close the barn door after the horse is out of the barn. That’s where we are today. It’s too late for the mother.

The court found that the child “exhibited a healthy adaptive response to the circumstances in her life.” The court found the child to be mature and happy in her placement with her paternal grandparents, who desire to adopt her. The court also vacated a restraining order against the mother to allow for the child to have future contact with the mother.

The trial court’s findings of fact are supported by competent, substantial evidence. The mother had no contact with the child for nearly four years. She has never supported the child since the child was placed with her father. The stipulated length of time without contact, in combination with the evidence, establishes abandonment.

The mother argues that termination was not the least restrictive means of protecting the child and that DCF failed to provide a Case Plan. “[T]he least restrictive means test [is not] intended to preserve the parental bonds at the cost of a child’s future. Instead, this test requires that ‘those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.’ ” A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007) (quoting S.S. v. D.L., 944 So.2d 553, 558 (Fla. 4th DCA 2007)) (citation omitted).

Here, both the child and her therapist testified concerning the lack of any bond between the child and her mother. The therapist opined that the child’s placement with the paternal grandparents was in the child’s best interest. We have previously held' that termination may be the least restrictive means under similar, though not identical, circumstances. C.A.H. v. Dep’t of Children & Families, 830 So.2d 939, 941 (Fla. 4th DCA 2002) (finding termination of parental rights to be the least restrictive means of protecting the child from further harm in an abandonment case). And, because termination of parental rights can be the goal of a case plan, we find no error. See § 39.806(3), Fla. Stat. (2011).

For the reasons expressed above, we affirm.

Affirmed.

STEVENSON and CIKLIN, JJ„ concur.


author: WHATLEY, Judge.

text:
    Todd William McGATHEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2732.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

In this appeal of the order revoking his probation, Todd McGathey argues that the trial court abused its discretion in finding that he violated condition seven based on one positive test showing that he had used cocaine. The affidavit of violation of probation alleged that McGathey violated condition seven by using intoxicants to excess or possessing any drugs or narcotics. At the revocation hearing, McGathey testified that the night before his drug test someone offered him cocaine and he took two puffs and told them they had to leave. There was no testimony regarding the possession element of condition seven.

We reverse based on Alston v. State, 646 So.2d 184 (Fla.1994), in which the supreme court held that a single positive drug test is insufficient to show that a probationer used an intoxicant to excess. As did the supreme court in Alston, we note that McGathey’s admission to using cocaine violates condition five, which directs that the probationer live without violating the law, and that nothing in this opinion precludes the State from initiating new revocation proceedings against McGathey prior to the expiration of his probation. See id. at 185; Blackshear v. State, 838 So.2d 1228 (Fla. 1st DCA 2003).

Reversed and remanded for further proceedings consistent with this opinion.

KHOUZAM and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    E.B., the father, Appellant, v. D.G., the mother, Appellee.
    No. 4D11-784.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.
    Rehearing Denied Oct. 26, 2011.
    Roger Ally of the Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Philip Massa, Executive Director, and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee D.G., the mother.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.
   PER CURIAM.

Affirmed. See J.G. v. Dep’t of Children & Families, 22 So.3d 774, 776 (Fla. 4th DCA 2009) (“[T]he parents’ claim that their procedural due process rights were violated under the Rules of Juvenile Procedure was raised for the first time in this appeal, and therefore was not preserved for appellate review.”).

TAYLOR, HAZOURI and LEVINE, JJ., concur.


author: DAVIS, J.

text:
    FLORIDA GAMING CENTERS, INC., a Florida Corporation; and West Flagler Associates, Ltd., a Florida Limited Partnership, Appellants, v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, an agency of the State of Florida, and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees. Calder Race Course Inc., a Florida Corporation, Appellant, v. Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, an agency of the State of Florida; and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees.
    Nos. 1D10-6780, 1D11-0130.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.

      John M. Lockwood of Gunster, Yoakley & Stewart, P.A., Tallahassee, Michael S. Olin of Michael S. Olin, P.A., Miami, and Joel S. Perwin of Joel S. Perwin, P.A., Miami, for Appellants Florida Gaming Centers and West Flagler Associates in Case No. 1D10-6780.
    Wilbur E. Brewton of Brewton Plante, P.A., Tallahassee, and Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellant Calder Race Course, Inc. in Case No. 1D11-0130.
    Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business & Professional Regulation, Tallahassee, for Ap-pellee The Department of Business and Professional Regulation.
    Andrew T. Lavin of Navon & Lavin, P.A., Ft. Lauderdale, and Raoul G. Cante-ro, Rachel Wagner Furst, and John-Paul Rodriguez of White & Case LLP, Miami, for Appellee South Florida Racing Association, LLC.
    David S. Romanik of David S. Romanik, P. A., Oxford, and Marc W. Dunbar and Daniel R. Russell of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee Florida Pinball and Amusement, Inc., in Case No. 10-6780.
   DAVIS, J.

Appellants, Florida Gaming Centers, Inc. (“Florida Gaming”), West Flagler Associates, Ltd. (‘West Flagler”), and Calder Race Course Inc. (“Calder”), appeal final judgments entered in favor of Appellees, the Florida Department of Business and Professional Regulation (“Department”) and South Florida Racing Association, LLC (“South Florida Racing”). Appellants contend that the trial court erred in concluding that the Legislature’s 2009 amendment to section 551.102(4), Florida Statutes, which expanded the scope of the entities authorized to conduct slot machine gaming in Florida, is constitutional because, they contend, it conflicts with Article X, section 23 of the Florida Constitution, which authorized slot machine gaming in Miami-Dade and Broward Counties if approved by county-wide referendum. Because we agree with the trial court that the statutory amendment is constitutional, we affirm.

On November 2, 2004, Florida voters approved a ballot initiative, adding Article X, section 23 to the Florida Constitution. It provides in part:

(a) After voter approval of this constitutional amendment, the governing bodies of Miami-Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed pari-mutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment. If the voters of such county approve the referendum question by majority vote, slot machines shall be authorized in such pari-mutuel facilities. If the voters of such county by majority vote disapprove the referendum question, slot machines shall not be so authorized, and the question shall not be presented in another referendum in that county for at least two years.
(b) In the next regular Legislative session occurring after voter approval of this constitutional amendment, the Legislature shall adopt legislation implementing this section and having an effective date no later than July 1 of the year following voter approval of this amendment; Such legislation shall authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines. The Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.

In 2005, voters in Broward County approved slot machines pursuant to a countywide referendum. That same year, the Legislature enacted chapter 551, Florida Statutes. Section 551.101, entitled “Slot machine gaming authorized,” mirrored the language of Article X, section 23. The Legislature defined “eligible facility” as:

any licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide referendum to have slot machines at such facility in the respective county.

§ 551.102(4), Fla. Stat. (2005). In 2008, voters in Miami-Dade County approved slot machines pursuant to a county-wide referendum.

In 2009, the Legislature amended the definition of “eligible facility” to include not only the facilities included in the original statute but also:

any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; or any licensed pari-mutuel facility in any other county in which a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section in the respective county, provided such facility has conducted a full schedule of live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required licensed fee, and meets the other requirements of this chapter.

Ch. 09-170, § 19, Laws of Fla. This amendment became effective on July 1, 2010.

In June 2010, Appellants, holders of pari-mutuel wagering permits in Miami-Dade County, filed suit against Appellees, seeking a declaratory judgment that the statutory amendment was unconstitutional because it conflicted with Article X, section 23, which, according to Appellants, served as a limitation on permissible slot machine gaming in the state. The trial court subsequently consolidated Appellants’ cases and granted Appellee Florida Pinball and Amusement Association’s motion to intervene. Appellants moved for summary judgment, and Appellee South Florida Racing filed a cross-motion for summary judgment. Deciding that the statutory amendment was constitutional, the trial court denied Appellants’ motion and granted South Florida Racing’s motion. The court reasoned that nothing in Article X, section 23 impinged upon the Legislature’s ability to regulate gambling in Florida. These appeals followed.

The constitutionality of a statute is a question of law subject to de novo review. Crist v. Ervin, 56 So.3d 745, 747 (Fla.2010). All statutes are presumed to be constitutional, and the party challenging the constitutionality of a statute bears the burden of demonstrating that it is invalid. Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214 (Fla.2000). In analyzing the issue before us, Article X, section 23 must be construed in such a manner so as to fulfill the intent of the people. Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So.2d 492, 501 (Fla.2003).

As the trial court did, we reject Appellants’ contention that the purpose of Article X, section 23 was to limit slot machine gaming in Florida to certain facilities in Miami-Dade and Broward Counties. The Legislature has broad discretion in regulating and controlling pari-mutuel wagering and gambling under its police powers. See Div. of Pari-Mutuel Wagering Dep’t of Bus. Regulation v. Fla. Horse Council, Inc., 464 So.2d 128, 130 (Fla. 1985). In fact, chapter 849, Florida Statutes, prohibits many forms of gambling, including slot machines. See § 849.15(l)(a), Fla. Stat. (providing in part that it is unlawful to permit the operation of any slot machine in the state). As such, the only thing that Article X, section 23 limited was the Legislature’s authority to prohibit slot machine gaming in certain facilities in the two counties. See Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So.3d 1053, 1079 (Fla.2010) (“ ‘The legislative branch looks to the [Florida] Constitution not for sources of power but for limitations upon power.’ ”) (Citation omitted). Contrary to Appellants’ position, Article X, section 23 provides no indication that Florida voters intended to forever prohibit the Legislature from exercising its authority to expand slot machine gaming beyond those facilities in Miami-Dade and Broward Counties meeting the specified criteria. • Nor is there any indication that Florida voters intended to grant the seven entities who met the criteria a constitutionally-protected monopoly over slot machine gaming in the state. The trial court was, therefore, correct in concluding that the statutory amendment does not conflict with Article X, section 23 and is constitutional.

Accordingly, we AFFIRM.

VAN NORTWICK and CLARK, JJ., concur.


text:
    Russell Nakia MASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4721.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Russell Nakia Mason’s conviction and sentence but remand for entry of a proper nunc pro tunc order finding Mason competent to proceed to sentencing. Based upon competent substantial evidence, the trial court orally found appellant competent but did not enter a written competency order under Florida Rule of Criminal Procedure 3.212(b) (“If the court finds the defendant competent to proceed, the court shall enter its order so finding and shall proceed.”). Although neither rule 3.212(b) nor rule 3.212(c)(7) (governing a finding of competency after the defendant has previously been found incompetent) expressly require a written order, the decisions of this and other courts require a written order. Francis v. State, 65 So.3d 103, 103 n. 1 (Fla. 5th DCA 2011); Ortiz v. State, 55 So.3d 724 (Fla. 5th DCA 2011); Childs v. State, 44 So.3d 216 (Fla. 2d DCA 2010); Martinez v. State, 851 So.2d 832 (Fla. 1st DCA 2003).

AFFIRMED and REMANDED with directions.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Mark T. JOHNSTON, Jr., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, AGENCY FOR WORKFORCE INNOVATION and Point Break Surveying, LLC, Appellees.
    No. 1D10-5512.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Mark T. Johnston, Jr., pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Having considered the appellant’s responses to the Court’s order of June 16, 2011, the appeal is hereby DISMISSED. The appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction to review the final administrative order rendered on October 31, 2008. Fla. R.App. P. 9.110(c). Further, the agency order on the appellant’s petition to vacate the 2008 final order has not been rendered by the agency. See Fla. R.App. P. 9.020(h). Therefore, the appeal from the September 20, 2010, administrative order is premature. See generally Students for Online Voting v. Machen, 24 So.3d 1273 (Fla. 1st DCA 2009) (noting earlier appeal had been dismissed as premature because it had not been rendered). This dismissal is without prejudice to the appellant’s right to seek relief from the lower tribunal or to bring a timely appeal once the agency renders a decision on the petition to vacate. See Johnson v. Terry Hunt Constr. Co., 878 So.2d 1282 (Fla. 1st DCA 2004) (noting the inherent power of an administrative tribunal to correct its own errors in its orders).

WOLF, LEWIS, and ROWE, JJ., concur.


text:
    K.G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1935.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

K.G. appeals the trial court’s order placing him in a moderate-risk residential program. K.G. argues that in departing from the recommendation by the Department of Juvenile Justice (Department) of a minimum-risk day treatment program, the trial court failed to engage in the appropriate level of analysis as set forth in E.A.R. v. State, 4 So.3d 614, 638 (Fla.2009). We agree. See C.M.H. v. State, 25 So.3d 678, 680 (Fla. 1st DCA 2010); M.J.S. v. State, 6 So.3d 1268, 1270 (Fla. 1st DCA 2009); M.K. v. State, 4 So.3d 1271, 1273 (Fla. 1st DCA 2009).

Here, the trial court did not articulate on the record why a moderate-risk residential program was better suited than the Department’s recommendation to serving K.G.’s rehabilitative needs, in the least restrictive setting, and protecting the public. See 25 So.3d at 680. Accordingly, we reverse and remand. See C.M.H., 25 So.3d at 680; M.J.S., 6 So.3d at 1270. The trial court is provided with an “opportunity to enter an order in compliance with E.A.R., or, if the trial court cannot, impose the probation recommended by the DJJ.” C.M.H., 25 So.3d at 680; accord M.H. v. State, 69 So.3d 325, 328 (Fla. 1st DCA 2011); M.J.S., 6 So.3d at 1270.

REVERSE and REMAND.

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    S.K.R., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D11-2386, 1D11-2387, 1D11-2388, 1D11-2390, 1D11-2661.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On the court’s own motion, we consolidate these delinquency appeals for purposes of disposition. The sole issue presented in each appeal concerns the disposition ordered by the trial court, but as appellant acknowledges, the trial court has now entered orders in each case terminating supervision by the Department of Juvenile Justice. Accordingly, the appeals are dismissed as moot.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Robert WILLIAMS, Petitioner, v. STATE of Florida, and Al Lamberti, Sheriff of Broward County, Respondents.
    Nos. 4D11-3427, 4D11-3428.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2011.

      Howard Finkelstein, Public Defender, and Tamara L. Curtis, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Robert Williams petitions for a writ of habeas corpus seeking pretrial release on reasonable conditions and petitions for a writ of prohibition from the denial of his motion to disqualify the trial judge. We grant both petitions.

This court has previously granted two petitions for writ of habeas corpus from the trial judge’s orders requiring petitioner’s pretrial detention in this case where he is charged with third-degree felony failure to return a rental vehicle. See Williams v. State, 68 So.3d 1010 (Fla. 4th DCA 2011); Williams v. State, 59 So.3d 387, 388 (Fla. 4th DCA 2011).

At a hearing on an emergency motion to set bond, the judge relied on the unsworn, non-record statements of an attorney that had withdrawn from the case in concluding that petitioner was a flight risk. The privately-retained attorney, who had withdrawn because of “irreconcilable differences” with petitioner, allegedly told the court that he could not contact petitioner. Petitioner was never afforded an opportunity to respond to these allegations.

The judge subsequently made statements that create an objectively reasonable basis for a well-founded fear that petitioner will not receive a fair and impartial trial at the hands of the judge. Without allowing petitioner to testify that he had complied with the pretrial release supervision which the judge had ordered and that petitioner had not received notice of the hearing at which he failed to appear, the court stated:

I have heard all these arguments before. If you want to take testimony, the record is what it is. The reality is that Mr. Williams failed to appear more than once before me. I didn’t buy it the first time around. I did not accept his explanation. I didn’t think it was real, and I had an issue with his credibility.
His attorney at the time took it up to the Fourth. The Fourth sent it back. They didn’t say that I was wrong. They said simply why don’t you get more on the record. We had a second hearing at that time and I gave him the benefit of the doubt and released him, thereafter, he failed to appear.
Now, the record is what it is. I don’t need to hear argument on the record. But if you want me to [sic] additional testimony, fine. In case there is an issue, in case you want to take it up again. Are you asking me if I am letting him out? No.

Petitioner moved to disqualify the judge based on these comments, and the judge denied the motion as legally insufficient. This court reviews de novo the legal sufficiency of a motion to disqualify. Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). “Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id.

The motion in this case is legally sufficient. We grant the petition for writ of prohibition. This case shall be assigned to a different judge.

Following this court’s recent decision granting the second of the two habeas corpus petitions, the trial court held a bond hearing and imposed a $50,000 bond which is 50 times the standard $1,000 convenience bond for a third-degree felony and 10 times the maximum fine that could be imposed for a third-degree felony. Petitioner testified that he lost his job as a computer engineer due to his recent incarceration and could not afford a monetary bond. Notably, the state had not requested any monetary bond or additional pretrial release conditions.

Depending on the financial resources of the party, excessive bond is tantamount to no bond and an appellate court will grant relief where the petitioner shows that the bail is unreasonable under the circumstances. See Brazil v. Jenne, 755 So.2d 784 (Fla. 4th DCA 2000).

Petitioner has shown that the $50,000 bond is unreasonable under the circumstances of this case. The undisputed evidence remains that petitioner has complied with all the conditions of his pretrial release supervision and appeared and remained at the calendar call hearing at which the court took him into custody. The state did not present any evidence that petitioner failed to maintain contact with pretrial supervision authorities or that he did not maintain a current address with those authorities. Nothing has been presented to show that petitioner has refused to “submit to the orders and process of the court.” Fla. R. Crim. P. 3.131(e)(2).

The petition for writ of habeas corpus is granted, and petitioner shall be released to the pretrial release conditions which had been imposed before his latest incarceration. The state may move the successor judge to consider additional, reasonable pretrial release conditions should new circumstances or evidence warrant it.

Petitions granted.

GROSS, GERBER and CONNER, JJ., concur.


author: MORRIS, Judge.

text:
    Reyes Herrera MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-229.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 2011.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Reyes Herrera Molina appeals his conviction for trafficking in illegal drugs. Because the trial court committed harmful error in not permitting the defense to comment on the State’s failure to call a witness at trial, we reverse his conviction.

Molina was charged on May 22, 2009, with trafficking in illegal drugs on April 11, 2008. Molina was alleged to have sold thirty milligrams of oxycodone to an undercover officer, Detective Witt. Prior to trial, the State argued that the defense should be prevented from mentioning witnesses who were not called by the State, such as the confidential informant (Cl), but who were available to both parties. The State argued that the defense chose not to ask for disclosure of the Cl’s identity. The defense responded that it did not ask for disclosure because it did not feel that it was entitled to disclosure. The defense argued that it should be able to comment on the absence of the Cl at trial because the Cl had a special relationship with the State and was not readily available to the defense. The trial court initially ruled that the Cl was in the power of the State to produce and that the defense was therefore permitted to comment on the State’s not calling the Cl as a witness at trial.

The issue came up again after the evi-dentiary portion of the trial. The trial court changed its mind and ruled that because it would have granted a defense motion to disclose the identity of the Cl, the Cl was available to both parties. Consequently, the trial court prevented the defense from mentioning in closing arguments the State’s failure to call the Cl as a witness. Defense counsel addressed the issue again later, arguing that it did not believe that the defense was entitled to disclosure of the Cl, which is why the defense did not seek disclosure. The trial court did not change its ruling. Molina was convicted as charged.

On appeal, Molina argues that the trial court’s conclusion that disclosure of the Cl’s identity would have been granted was speculation because it is unclear whether Molina would have been entitled to disclosure. Molina asserts that because an in camera inspection was not conducted, the trial court could not properly determine whether Molina was entitled to disclosure of the Cl. Because the record is not clear on this point, Molina argues that the Cl was not available to both parties and that he should have been permitted to comment on the State’s failure to call the Cl at trial. Molina argues that the error was not harmless because the State’s evidence against him was not overwhelming and the defense presented a good case for misiden-tification.

The trial court properly focused on whether the witness was available to both parties in deciding whether to allow the defense to comment on the State’s failure to call the Cl as a witness at trial. “ ‘[W]hen ... witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness.’ ” Haliburton v. State, 561 So.2d 248, 250 (Fla.1990) (quoting State v. Michaels, 454 So.2d 560, 562 (Fla.1984)). However, the trial court improperly concluded that the Cl was available to both parties.

The State’s limited privilege of protecting the Cl’s identity may be overcome when a defendant shows that the Cl’s “identity is relevant to the accused’s defense or essential to a fair determination of the cause at issue.” McCray v. State, 730 So.2d 817, 817 (Fla. 2d DCA 1999). In McCray, the defense’s motion to compel disclosure of the Cl alleged

that the confidential informant apparently knew the defendant, that the confidential informant was present when the crime transpired, that the undercover officer misidentified the defendant as the perpetrator of the crime, that the confidential informant’s testimony was essential to the defense of misidentification, and that the defendant was not involved in the sale of cocaine as charged.

Id.

The trial court in this case apparently assumed that Molina could have argued these same facts in support of a motion to compel disclosure of the Cl. But had Molina filed such a motion, he would not have automatically been entitled to disclosure of the Cl’s identity. According to McCray, disclosure would have only been warranted if the Cl’s “testimony ... exculpate[s] [the defendant] on the mis-identification issue or varies materially from the testimony of the police officer who identified [the defendant] at trial.” Id. A determination that disclosure is warranted should only be made after an in camera hearing. See id.

Because the trial court did not hold an in camera hearing in this case, the trial court had no way of knowing whether the Cl’s testimony would exculpate Molina on the misidentification issue or would vary materially from Detective Witt’s testimony. Thus, the trial court could only speculate whether the Cl’s testimony would warrant disclosure of the Cl’s identity. See State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985) (“ ‘[M]ere speculation as to the usefulness of the informant’s testimony to the defendant is insufficient to justify disclosure of his identity.’ ” (alteration in original) (quoting United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir. 1977))). Because the trial court did not conduct an in camera hearing to determine that the defense was entitled to disclosure of the Cl, it erred in ruling that the Cl was equally available to the defense for purposes of determining whether the defense could comment on the State’s failure to present the Cl’s testimony at trial.

The supreme court has held that “ ‘an inference adverse to a party based on the party’s failure to call a witness is permissible when it is shown that the witness is peculiarly within the party’s power to produce and the testimony of the witness would elucidate the transaction.’ ” Haliburton, 561 So.2d at 250 (agreeing with and quoting Martinez v. State, 478 So.2d 871, 871 (Fla. 3d DCA 1985)). Here, the Cl was peculiarly within the State’s power to produce. And the testimony of the Cl would help explain the transaction for which Molina was being charged.

At trial, Detective Witt testified that he received information from a Cl regarding a drug buy. He and his partner picked up the Cl and “responded to that location to conduct the drug transaction,” where they met up with the seller, who was identified at trial as Molina. The Cl was located in the front passenger seat of Detective Witt’s car. Witt exited his car, walked to Molina’s truck, and conducted a drug buy through the window. Witt testified that he asked Molina if he could get his phone number for future drug transactions, and Molina told Witt to get his number from the CL Because the Cl was the person who connected Detective Witt to Molina and because the Cl was present during the drug buy, the Cl’s testimony would have elucidated the transaction. Cf. Harris v. State, 636 So.2d 137, 137 (Fla. 3d DCA 1994) (disagreeing -with the state that the Cl was not within the state’s power to produce but concluding that the Cl’s testimony would not have elucidated the transaction because the “[Cl] had only a minimal relationship with the case at all and none whatsoever with the defendant himself’). Accordingly, the defense should have been able to comment on the State’s failure to call the Cl as a witness, and the trial court abused its discretion in ruling otherwise. See Jean-Marie v. State, 993 So.2d 1160, 1162 (Fla. 4th DCA 2008) (recognizing that “trial courts have discretion in regulating comments to be made in closing arguments”).

We conclude that the State has not shown that the error was harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The only identification evidence tying Molina to the offense was the testimony of Detective Witt. Witt was unable to obtain the license tag number of the truck used by the seller in the drug buy, and Witt did not testify as to any other markers used to tie Molina to this particular drug buy. The defense also elicited during cross-examination of Witt that the drug buy occurred in April 2008, a year before Molina was arrested for the offense and one and a half years before the trial in December 2009. Witt also testified that he participated in hundreds of drug buys in the years 2008 and 2009. Further, it was clear from the jury’s questions that the jury had concerns regarding the identification of the seller. During opening statements, the defense told the jury that the Cl would not be testifying and that the jury would not be hearing from him. But the defense was prevented from highlighting during closing arguments the Cl’s absence at trial. Absent the trial court’s error on this issue, the defense would have been permitted to argue this more specifically or adamantly in closing argument in support of Molina’s misidentification defense after all of the evidence had been heard. In light of these considerations, there is a reasonable possibility that the error contributed to the verdict. Accordingly, we reverse Molina’s conviction and remand for a new trial.

Reversed and remanded.

ALTENBERND and KELLY, JJ., Concur.

      . During deliberations, the jury asked if Molina had possession of an F-150, which is the type of truck Detective Witt said Molina drove to the drug buy. The jury also asked if Detective Witt spoke Spanish, which is the language Molina speaks, as indicated by his use of an interpreter at trial.


author: HAZOURI, J.

text:
    STATE NATIONAL INSURANCE COMPANY, Appellant, v. Paul ROBERT, Elizabeth Robert, City of Hollywood, Florida and Hess Corporation, Appellees.
    No. 4D10-2382.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 2011.
    Robert T. Vorhoff and Scott P. Yount of Garrison, Yount, Forte & Muleahy, L.L.C., Tampa, for appellant.
    Benjamin C. Hassebrock and Stephen A. Marino, Jr., of Ver Ploeg & Lumpkin, P.A., and Anania Bandklayder of Baumgarten Torricella & Stein, Miami, for appellees Paul Robert and Elizabeth Robert.
   HAZOURI, J.

Paul Robert and his wife Elizabeth (“the Roberts”) sued the City of Hollywood, Florida (“the City”), after Paul was injured in an accident involving a city vehicle. Following a jury trial, the Roberts obtained three separate judgments: (1) $1,095,008.83 for Paul, (2) $90,000 for Elizabeth, and (3) cost judgment of $67,500, for a total of $1,250,508.83. Prior to entry of the judgments, the Roberts timely filed a motion to join the City’s liability insurer, State National Insurance Company (State National), as a defendant, pursuant to section 627.4136(1), (4), Florida Statutes (2006).

The issue on appeal is whether the trial court erred in entering amended final judgments adding State National without first determining whether the Roberts met the condition precedent of 627.4136(1) of obtaining a verdict against a person, or in this case the City, “who is an insured under the terms of the liability policy for a cause of action which was covered by such policy.” For reasons discussed below we determine the trial court erred in the entry of the amended final judgment and reverse and remand for a determination as to whether the condition precedent has been met.

State National’s liability policy provided the City with $1,000,000 in liability coverage, with the City carrying a $400,000 self-insured retention. Pursuant to section 768.28(5), Florida Statutes (2006), the City’s sovereign immunity is waived up to $200,000, with the remainder of the judgment subject to a claims bill in the Florida legislature. State National argues in this appeal that it cannot be liable to settle judgments against its insured, the City, for amounts in excess of the City’s limited waiver of sovereign immunity under section 768.28(5), or the City’s $400,000 self-insured retention.

The Roberts and the City entered into a satisfaction of judgment:

The undersigned, the owners and holders of certain final judgments rendered against the City of Hollywood, Florida in the above-captioned civil action, dated May 4, 2009, do hereby acknowledge receipt of the sum of $166,692.89 from defendant City of Hollywood, Florida and further acknowledge that the final judgments are hereby satisfied of record with respect to the City of Hollywood’s $200,000.00 liability to Plaintiffs under Sec. 768.28(5) Florida Statutes only. The foregoing shall not in any way discharge Plaintiffs’ right to report the unpaid amounts of said final judgments to the legislature and seek payment of same via an act of the legislature pursuant to Sec. 768.28(5) Florida Statutes or to recover from State National Insurance Company all amounts which Plaintiffs are or may be entitled to recover pursuant to the City of Hollywood’s liability insurance policies. Plaintiffs specifically reserve all of the foregoing claims and rights.

The jury trial and subsequent proceedings leading to the amended final judgments were presided over by a retired judge sitting as a senior judge in place of the assigned judge for civil division CACE(21). In a rather unusual ruling the trial judge ruled that he had jurisdiction to enter the amended final judgments but specifically ruled that he was not determining State National’s liability and expressly reserved this issue for further proceedings before the division judge which has yet to occur.

State National asserts that section 768.28(5) prohibits the City from being liable for any judgment in excess of $200,000 without the Roberts resorting to the claims bill process before the state legislature. State National further contends that its policy of insurance which is entitled “Public Entity Excess Liability Policy” requires it to pay all sums the City legally must pay as damages because of bodily injury caused by an accident and resulting from the ownership or maintenance of or use of a covered auto and therefore since the City cannot be legally liable in excess of $200,000 absent a successful claims bill there is no obligation for State National to pay. In addition, State National argues that since the policy calls for self-insured limit retention of $400,000, until the City pays $400,000, in essence exhausting the self-retention, it cannot be held responsible for any judgment or settlement.

The Roberts contend that the case in its present posture is not ripe for appellate review because the trial court specifically refused to determine State National’s liability. Roberts argues that if this court were to reach the issue of State National’s liability, section 768.28(5) permits the City to negotiate a settlement within its policy limits without resorting to a claims bill and that there is nothing in the State National policy which requires the City to exhaust its $400,000 of self-retained limits. Therefore State National is responsible for $852,508.83 which is the total amount of the amended final judgments less the $400,000 self-retained limit and is within State National’s policy limits of $1,000,000.

We decline to decide the issue of whether there is liability on the part of State National by interplay of section 768.28(5) and the terms of its liability policy in the present posture of this case because the trial court failed to address the conditions precedent under section 627.4136(1). We reverse the entry of the amended final judgments as they apply to State National and remand to the lower court to make a determination of whether the Roberts can establish the condition precedent which would warrant the addition of State National to the amended final judgments.

Reversed, and Remanded for Further Proceedings.

TAYLOR and LEVINE, JJ., concur.

      . Section 627.4136(1), (4), Florida Statutes (2006), states:
      627.4136. Nonjoinder of insurers
      (1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

      (4) At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2). A copy of the motion to join the insurer shall be served on the insurer by certified mail. If a judgment is reversed or remanded on appeal, the insurer's presence shall not be disclosed to the jury in a subsequent trial.

      . Section 768.28(5), Florida Statutes (2006), provides:
      The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974.