author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Michael SMITH, Appellee.
    No. 4D10-1785.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Imán I. Abouelazm of Law Offices of Imán I. Abouelazm, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Michael Smith was charged by information with carrying a concealed firearm pursuant to section 790.01(2), Florida Statutes (2009). Smith filed a motion to dismiss, alleging as undisputed facts that he was operating his motor vehicle on July 11, 2009, when he was stopped by a sheriffs deputy for unlawful speed. Upon the realization that Smith’s license was suspended, the deputy asked him whether he had any weapons or drugs in the vehicle. Smith informed the deputy that there was a firearm under the passenger seat.

At the deputy’s request, Smith stepped out of his vehicle and accompanied the deputy to his patrol car where the deputy waited for backup and conducted a license check. Approximately seven minutes later, the deputy returned to Smith’s vehicle and retrieved the firearm from under the front passenger seat.

At the hearing on the motion to dismiss, defense counsel argued that dismissal was warranted because the firearm was not “readily accessible” to Smith when the firearm was retrieved while he was outside the vehicle. The trial court granted Smith’s motion to dismiss.

On appeal, the state argues the trial court erred in granting Smith’s motion to dismiss because there was a prima facie case that the firearm was “readily accessible” to Smith at the time the deputy encountered Smith, and therefore Smith failed to set forth undisputed facts demonstrating that a prima facie case was not established. The state further argues that in order to prevail, Smith has to demonstrate that the weapon was not on or about his person, and that the weapon was not hidden from the ordinary sight of another person. The facts demonstrated that the weapon was under the seat beside Smith when he was approached by the deputy, and the deputy, knowing of this threat, asked Smith to exit the vehicle prior to retrieving it. We agree that the trial court erred and reverse.

In entering its order granting the motion to dismiss the trial court held:

The issue before the Court is one of the statutory interpretation of F.S. § 790.01, i.e., is under the passenger seat of a vehicle, when the Defendant is outside of his vehicle, “on or about his person.” In this particular case, under the undisputed facts, the firearm is not “on or about” the Defendant’s person.
Accordingly, the Motion to Dismiss, filed pursuant to Rule 8.190(c)(4) of the Florida Rules of Criminal Procedure is GRANTED. State v. Hinkle, 970 So.2d 438 (Fla. 4th DCA 2007); Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996).

The standard of review on a motion to dismiss is de novo because “[t]he purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.” State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002) (citing Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995)). On such a motion, the state “is required only to show a prima facie case,” and “is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant.” Id. (citation omitted). The motion to dismiss should be granted “only where the most favorable construction to the state would not establish a prima facie case of guilt.” Id. (citation omitted).

Section 790.01(2), Florida Statutes (2009), reads in pertinent part: “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree.”

Concealed firearm is defined by section 790.001(2), Florida Statutes (2009): “ ‘Concealed firearm’ means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”

In Ensor v. State, 403 So.2d 349 (Fla.1981), the supreme court held:

We ... find that absolute invisibility is not a necessary element to a finding of concealment under section 790.001. The operative language of that section establishes a two-fold test. For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term “on or about the person” means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.
These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001. Similarly, a weapon’s location in some extreme part of the vehicle’s interior may be such that the trier of fact finds the weapon to be not “about the person,” and thus not concealed. In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.

Id. at 354-55.

In Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), an officer, in response to a BOLO, followed the defendant’s vehicle to his home. The defendant testified that when he arrived home, he removed his firearm from the front seat and placed it beneath the driver’s seat. The defendant then locked the car and walked toward his home. The defendant realized he did not have his house key and was unable to enter. The officer lost sight of the defendant for thirty seconds and when the defendant reappeared, “he was nonchalantly walking out of his carport.” Lamb, 668 So.2d at 667. The officer ordered the defendant to raise his hands and handcuffed him because he was concerned he might be armed. He was taken to the hospital due to an injury which occurred prior to the BOLO. The police returned with the defendant to his home and asked where the firearm was. He told them it was under the seat of the vehicle. They charged him with carrying a concealed firearm, among other things. He was found guilty. On appeal, in determining whether the firearm was “ ‘on or about the person’ [which] means physically on the person or readily accessible to him,” id. at 667-68 (citations omitted), the Second District held:

The trial court had to decide whether as a matter of law the firearm was “readily accessible.” At the time of his arrest, we conclude as a matter of law that the appellant’s firearm was not readily accessible to him. We agree with the appellant that no view of the undisputed evidence supports the conclusion that he carried a concealed firearm “on or about his person” in this instance. We, therefore, hold that the trial court erred in its denial of the appellant’s motion for judgment of acquittal as to the charge of carrying a concealed firearm and reverse said conviction and set aside the judgment and sentence therefor.

Id. at 668.

In White v. State, 902 So.2d 887 (Fla. 1st DCA 2005), the undisputed evidence showed that although the defendant “had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it. Only after the revolver was seized was appellant arrested for its possession.” Id. at 888. Citing Lamb, the First District held that the defendant’s motion for judgment of acquittal should have been granted because the essential facts were practically identical to those in Lamb and the undisputed evidence did not support a finding that the defendant carried a concealed weapon on or about his person.

In J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006), rev. denied, 941 So.2d 1171 (Fla.2006), two officers on patrol in their unmarked vehicle were being tailgated. At a red light, the officers got out and approached the vehicle tailgating them. One officer smelled burning marijuana inside the vehicle. There were three people in the car and the defendant was in the back seat. The officer took each of the individuals out of the car one at a time and searched each of them. He made them sit on the curb. He found leafy pieces and seeds of marijuana throughout the car and while searching, he found a handgun under the front passenger seat. “When he put the handgun on the roof of the car, J.E.S. made a spontaneous statement that the handgun belonged to him” and he found it in a ditch earlier that day. Id. at 277. The trial court adjudicated him guilty. J.E.S. filed a motion for reconsideration arguing that he was not guilty “because the weapon was found in the car after he was removed from the vehicle and, therefore, he did not have actual or constructive possession of the firearm.” Id. The trial court denied the motion and the defendant appealed. He argued “that when a gun is found in an empty vehicle, an accused cannot be convicted of carrying a concealed firearm even if he admits to ownership of the firearm,” relying on White. Id. at 278.

The Fifth District quoted at length from White and Lamb. The court in White said the facts therein were practically identical to Lamb. However, in J.E.S., the court concluded that the facts therein were distinguishable from White and Lamb because J.E.S. had just been ordered out of the vehicle and then he and the car were immediately searched. J.E.S. had not been outside of the car for hours, as in Lamb, when the gun was found. It further concluded that “[a]t the time [the officer] approached the automobile, J.E.S. was seated in the backseat of the car and the gun was on or about his person and readily accessible to him under the front seat.” J.E.S., 931 So.2d at 280 (citations omitted). The district court affirmed the defendant’s conviction.

In Gehring v. State, 937 So.2d 169 (Fla. 2d DCA 2006), the police went to the defendant’s address believing they had probable cause to arrest him for aggravated stalking. He lived in a trailer at the address and the police waited there until the defendant arrived fifteen minutes later. The defendant got out of his vehicle and the police told him that he was under arrest. He was placed in the police car and the police looked in his vehicle. There they found items related to the aggravated stalking as well as shotgun shells and a pistol grip shotgun. The shotgun was found lying on the front passenger seat underneath a jacket. Gehring was charged with aggravated stalking and carrying a concealed firearm. The jury convicted Gehring of both charges. On appeal, he argued that the trial court erred in denying his motion for judgment of acquittal on the firearm charge because the shotgun was not on or about his person when it was discovered as he had gotten out of the car and was under arrest when the shotgun was found, citing White and Lamb.

The Second District concluded that “[t]he evidence presented at trial did not show that the firearm was simultaneously carried by Gehring and concealed.” Gehring, 937 So.2d at 171. Relying on Lamb, the court reversed his conviction. The court also cited J.E.S. in comparison, indicating it was different because the defendant was ordered out of the vehicle and then it was searched.

In State v. Hinkle, 970 So.2d 433 (Fla. 4th DCA 2007), the trial court granted the defendant’s motion to dismiss the charge of carrying a concealed weapon and the state appealed. The defendant was pulled over for speeding and as the deputy approached, the defendant put both hands outside the driver’s side window and stated “he did have a firearm in the vehicle and did not have a concealed weapons permit.” Hinkle, 970 So.2d at 434. The deputy asked where the gun was and the defendant told him it was on the front passenger seat. There was a Mother’s Day bouquet of flowers on top of the gun. The deputy directed Hinkle to lift the bouquet and the gun was revealed. It was not loaded. On appeal, this court held:

Taking the facts of this case in a light most favorable to the state, the firearm was on the seat next to Hinkle, readily accessible to him. Although Hinkle placed his hands outside the driver’s window, the firearm was still within ready reach of Hinkle. In those cases which have determined that a firearm found in a vehicle is not on or about the defendant’s person, the defendant has been outside the vehicle when the firearm is discovered.

Id. at 434 (citations omitted). This court then cited Gehring, White, and Lamb. The facts of Hinkle, however, are not similar and this court found that a prima facie case of concealment had been shown by the state.

In State v. Lopez, 980 So.2d 1270 (Fla. 2d DCA 2008), during a valid traffic stop, the defendant/driver consented to have his vehicle searched. The officer requested he get out of the car to facilitate the search. The firearm was found under the driver’s seat. The trial court dismissed the carrying a concealed weapon charge relying on Gehring. On appeal, the Second District reversed the dismissal noting that, in Gehring, it distinguished J.E.S., which held that the evidence was sufficient to support the conviction where the defendant was ordered out of the vehicle during a valid traffic stop and a firearm was found hidden under the seat during a legal search of the vehicle. The court concluded that when the officer first encountered the defendant, the firearm was under his seat. “The charge against Mr. Lopez alleged sufficiently that the firearm was simultaneously on or about his person and concealed.” Lopez, 980 So.2d at 1271.

In Evans v. State, 24 So.3d 1257 (Fla. 1st DCA 2009), a deputy observed a white pickup truck which matched a description given in a 911 call. The pickup truck was swerving around. The 911 caller had given Evans’s name as the driver and said she possessed a firearm, had been drinking, and had threatened to kill the caller’s boyfriend. The deputy stopped the truck and asked Evans to get out of the vehicle. He also asked whether she had a firearm, which Evans confirmed. She failed the field sobriety test and became combative prior to her arrest. After she was handcuffed and placed in the deputy’s car, he found the firearm on the front passenger seat under some papers. Evans was convicted of carrying a concealed firearm and appealed arguing the trial court erred in denying her motion for judgment of acquittal. In affirming her conviction, the First District distinguished White and Lamb as the Fifth District had in J.E.S. and found that as in J.E.S., “the appellant was inside the vehicle with the concealed firearm at the time the law enforcement officer approached; the appellant was ordered out of the vehicle; and the firearm was found concealed in the vehicle immediately after.” Evans, 24 So.3d at 1259. The firearm was readily accessible immediately prior to the defendant being ordered out of the car.

Smith would have us hold that based on Gehring, White, and Lamb, anytime a firearm is retrieved from a vehicle after the person charged is out of the vehicle, the requirement that the firearm be “on or about the person” or “readily accessible” cannot be met. We decline to so hold.

The facts in Gehring, White, and Lamb, are distinguishable from the instant case. In those cases, the defendant was out of the vehicle when approached by law enforcement. Here, Smith concealed the firearm underneath the passenger seat as the deputy approached the vehicle. We cannot say as a matter of law that the firearm was not “on or about his person” or not “readily accessible” to him. Smith had been outside his vehicle for a mere seven minutes before the firearm was retrieved. The facts of the instant case are much closer to the facts of J.E.S. than Gehring, White, or Lamb.

We therefore reverse the dismissal and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

TAYLOR and CONNER, JJ., concur.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Dr. Brenda C. SNIPES, in her official capacity as Supervisor of Elections for Broward County, Florida, and Broward County, a political subdivision of the State of Florida, Appellants, v. William TELLI, Appellee.
    No. 4D10-4687.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Joni Armstrong Coffey, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, Benjamin R. Salzillo and Annika E. Ashton, Assistant County Attorneys, Fort Lauderdale, and Burnadette Norris-Weeks, Fort Lauderdale, for appellants.
    William R. Scherer, Daniel S. Weinger and Eric J. Rayman of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.
   GROSS, J.

We reverse the circuit court’s judgment holding that the Florida Constitution prohibited Broward County voters from amending the county charter to impose term limits upon Broward County Commissioners.

In 2000, Broward County voters approved an amendment to the county charter that limited Broward County Commissioners to no more than three consecutive four year terms. William Telli challenged the term limit provision on the ground that it conflicts with the Florida Constitution. Agreeing that the case presented a question of law, both sides moved for summary judgment. The circuit court declared that the term limit provision was invalid, based on Cook v. City of Jacksonville, 823 So.2d 86 (Fla.2002). The standard of review applicable to the circuit court’s granting of summary final judgment is de novo. E.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Cook governs our analysis. The holding in Cook, by its express language, applies only to the county officers specified in article VIII, section 1(d) of the Florida Constitution — “a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court.” Art. VIII, § 1(d), Fla. Const.; Cook, 823 So.2d at 90, 94-95. The issue here is whether Cook’s reasoning and the language of article VIII, section 1 support the extension of Cook’s holding to the voters’ adoption of term limits on county commissioners in a charter county. We conclude that such an expansion of Cook is inappropriate when the case is read in light of the broad powers accorded charter counties by sections 1(e) and 1(g) of article VIII.

Cook consolidated two appeals: City of Jacksonville v. Cook, 765 So.2d 289 (Fla. 1st DCA 2000), and Pinellas County v. Eight is Enough in Pinellas, 775 So.2d 317 (Fla. 2d DCA 2000). The first case involved a 1992 amendment to the Jacksonville Charter, which imposed a two-term limit on, among other offices, the clerk of the circuit court. Cook, 823 So.2d at 87-88. The trial court ruled that the amendment was an unconstitutional attempt to impose new disqualifications on a state office, and ordered the supervisor of elections to accept the clerk’s filing to run for another term. Id. at 88. The first district reversed, and held that because the Florida Constitution did not establish any qualifications or disqualifications for the office of clerk of the circuit court, the power to impose disqualifications in the form of term limits was within Jacksonville’s broad home-rule powers. Id.

The second appeal in Cook involved a 1996 amendment to the Pinellas County Charter that imposed term limits on county officers, including the board of county commissioners, sheriff, tax collector, property appraiser, supervisor of elections, and clerk of the circuit court. Id. at 88-89. The trial court upheld the limits as within the county’s home rule powers. Id. at 89. The second district affirmed, holding that no constitutional provision prevented the county from imposing term limits on county officers. Id. at 89-90. The incumbent clerk of the circuit court, tax collector, and sheriff petitioned for review, but the board of county commissioners did not. Id. at 90. The failure of the county commissioners to seek review is significant to this case because it had the effect of removing that office from the holding of Cook.

The Supreme Court reversed the district court decisions. The reasoning in Cook may be briefly summarized. First, the Supreme Court held that “a term limit provision is a disqualification from election to office.” Id. at 92 (citing Advisory Opinion to the Attorney Gen.—Limited Political Terms in Certain Elective Offices, 592 So.2d 225 (Fla.1991)). Next, the Court held that “article VI, section 4, Florida Constitution, imposes those disqualifications which may be validly imposed upon offices authorized by the Constitution.” Id. at 92-93. The Court relied on the canon of construction expressio unius est exclusio altenus, and held that the imposition of term limits by article VI, section 4(b), Florida Constitution, on certain constitutionally authorized offices necessarily excluded their imposition on other offices, except by constitutional amendment. “By the constitution identifying the offices to which a term limit disqualification applies, we find that it necessarily follows that the constitutionally authorized offices not included in article VI, section 4(b), may not have a term limit disqualification imposed.” Cook, 823 So.2d at 93-94 (Italics supplied). Crucial to this case is what the Supreme Court meant by its use of the term “constitutionally authorized offices” and the other variations of that phrase in Cook.

Cook explicitly held that a county may not amend its charter to impose term limits on section 1(d) county officers: sheriff, tax collector, property appraiser, supervisor of elections, and clerk of the circuit court. Applying this express holding, we conclude that Cook used the term “constitutionally authorized offices” to refer to those offices enumerated in section 1(d).

Cook did not deal with term limits for the board of county commissioners, and nowhere discusses the scope or impact of sections 1(e) and (g) as they pertain to the voters’ ability to limit the terms of county commissioners in a charter county. In order to determine whether Cook’s holding should be extended to apply to county commissioners, or other members of a county’s governing body under article VIII, section 1(e), Florida Constitution, we must decide whether county commissioners should be characterized as “officers authorized by the constitution” within the meaning of that phrase as used in Cook.

Technically, all officers of the state, however minor or important, are “authorized by the constitution,” because their powers flow in some way from the Florida Constitution. There is a crucial difference, however, between the offices described in sections 1(d) and 1(e). The section 1(d) officers are established with precise language; by contrast, the section 1(e) “commissioners” are described as a default option when a county charter does not provide otherwise. Section 1(d) establishes that a county government shall have certain named officers, and grants the county limited powers to change the manner of electing those officers, or to abolish an office altogether and transfer its duties to another county office. Section 1(e), on the other hand, does not unalterably establish the office of “county commissioner;” rather, that subsection provides for county commissioners only as a fallback option. When a county fails to establish a governing body in its charter, that governing body shall take the form of a board of county commissioners, with five or seven members, serving staggered terms of four years. Section 1(e) does not require a county to organize its governing body in such a way. To equate the legal effect of the two sections — to say that section 1(e) establishes county officers with the same exactness as section 1(d) constitutional officers — would be to ignore the first seven words of subsection 1(e): “Except when otherwise provided by county charter.... ” The language of the Constitution expressly cedes power to a county charter when it comes to the creation of a county’s governing body.

This constitutional power of a charter county over its governing body is further amplified by article VIII, section 1(g), Florida Constitution, establishing broad home rule powers for charter counties. Section 1(g) invests charter counties with broad powers to govern within their own territory and organize their governing apparatus as the voters see fit. “[The Supreme] Court has broadly interpreted the self-governing powers granted charter counties under article VIII, section 1(g) of the Florida Constitution.” State v. Broward Cnty., 468 So.2d 965, 969 (Fla.1985) (footnote omitted); see also Hollywood, Inc. v. Broward Cnty., 431 So.2d 606, 609 (Fla. 4th DCA 1983) (“Through this provision [section 1(g) ], the people of Florida have vested broad home rule powers in charter counties such as Broward County.”). Extending Cook to apply to county officers other than those expressly established by section 1(d) would unduly limit charter counties’ constitutional powers of self-government under section 1(g). Where the Constitution gives free rein to the type of governing body a charter county may create, it is not a stretch of constitutional logic to conclude that a county charter may limit the terms of those commissioners it chooses to have.

In addition to the language of article VIII, section 1, sound public policy supports our conclusion that Cook’s holding regarding section 1(d) county officers should not be extended to cover section 1(e) county officers. For county officers authorized by section 1(d), there are strong practical grounds for requiring statewide uniformity. Persons traveling and doing business between counties should deal with a common set of section 1(d) county officers, i.e., sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, and should not be forced to navigate byzantine bureaucracies to accomplish similar tasks. Likewise, legislators seeking to regulate section 1(d) county officers should not be forced to take a variety of different titles and job descriptions into account in order to achieve a single legislative objective. Instead, the Constitution sensibly encourages charter counties to adopt a standard distribution of responsibilities among five constitutionally authorized county officers, defining and limiting the possible objects of state regulation.

But these reasons for statewide uniformity are less applicable to the county’s governing body, whether it takes the form of a board of commissioners, as provided by the “default” option under section 1(e), or some other form, as provided by the county’s charter. The organization of a county’s governing body, exercising broad powers of home rule over its own territory, need not be kept uniform by the Constitution, but may rather be fashioned to suit the particular wants and needs of the voters of the county they serve. The difference in constitutional status between section 1(d) county officers and the section 1(e) county governing body therefore reflects the common sense conclusion that, as a matter of policy, the balance of state and local interests favors statewide uniformity for the former, and local flexibility for the latter.

Finally, we note that in Florida the common meaning of the term “constitutional officers” refers to the five offices set forth in article VIII, section 1(d), Florida Constitution. Although not all counties use the term “constitutional officers” to organize their websites, those counties that do employ that term omit county commissioners from their list of constitutional officers. Cook did not use the term “constitutional officers,” but rather the similar, though perhaps slightly different, phrase “constitutionally authorized officers,” and variations thereon. See supra note 1. But inasmuch as the meaning of those phrases tracks the more familiar concept of a “constitutional officer,” we note that the counties themselves do not appear to consider county commissioners “constitutional officers,” and generally restrict that term to section 1(d) county officers. We see nothing in Cook to suggest that the Supreme Court intended to depart from common usage and impart an entirely new and unfamiliar meaning to the term.

For these reasons, we decline to extend the holding in Cook to apply to members of a county’s governing body under article VIII, section 1(e), Florida Constitution, and hold that the voters may amend a county’s charter, if they choose, to impose term limits on county commissioners. We choose not to certify a question to the Florida Supreme Court. If we have incorrectly delineated the scope of Cook, our failure to apply it here would be in conflict with that opinion, so that the Supreme Court could take discretionary jurisdiction of this case. See Fla. R.App. P. 9.030(a) (2) (iii), (iv).

WARNER and POLEN, JJ., concur.

      . In Cook, the Supreme Court described its holding as applying to "offices authorized by the Constitution,” "positions authorized by the constitution,” and “constitutionally authorized offices.” 823 So.2d at 90, 92, 93, 94, & 95.

      . The Court wrote in its “Conclusion":
      We find that Article VI, section 4(a), Florida Constitution, provides the only disqualifications applicable to the county offices established by article VIII, section 1(d), Florida Constitution.

        Cook, 823 So.2d at 94-95.

      . See Bay Cnty. Online, http://www.co.bay.fl. us (listing "Constitutional Offices” separately from county commissioners) (last visited Aug. 4, 2011); Broward.org, Links, Constitutional Officers, http://www.broward.org/Links/Pages/ default.aspx# officers (including state attorney and public defender but excluding county commissioners) (last visited Aug. 4, 2011); Clay Cnty., http://www.claycountygov.com (listing "Constitutional Officers” separately from county commissioners) (last visited Aug. 4, 2011); Collier Cnty., Constitutional Offices, http://www.colliergov.net/Index.aspx?page= 47 (excluding county commissioners) (last visited Aug. 4, 2011); Columbia Cnty. Online, http://columbiacountyfla.com (listing "Constitutional Officers & Elected Officials” and excluding county commissioners) (last visited Aug. 4, 2011); Dixie Cnty., Constitutional Officers, http://dixie.fl.gov/Ppage — id=193 (including county judge and superintendent of schools but excluding county commissioners) (last visited Aug. 4, 2011); Franklin Cnty., http://www.franklincountyflorida.com (listing "Constitutional and Other Officers” separately from Board of Commissioners) (last visited Aug. 4, 2011); Gadsden Cnty., Constitutional Officers, http://www.gadsdengov.net/index. aspx?page=134 (excluding county commissioners) (last visited Aug. 4, 2011); Hendry Cnty., Constitutional Officers, http://www. hendryfla.net/officers.htm (including public defender, state attorney, and circuit court, but excluding county commissioners) (last visited Aug. 4, 2011); Highlands Cnty., http://www. hcbcc.net (listing "elected officials” comprising constitutional officers separately from county commissioners) (last visited Aug. 4, 2011); Hillsborough Cnty., Government, http://www.hillsboroughcounty.org/ government (listing "Constitutional Offices” separately from county commissioners) (last visited Aug. 4, 2011); Jefferson Cnty., http:// www.jeffersoncountyfl.gov (listing the "County Department[ ]” of county commissioners separately from "Constitutional Officers”) (last visited Aug. 4, 2011); Lee Cnty., Constitutional Officers, http://www.lee-county.com/ gov/cons titutionaloffices/Pages/default.aspx (including courts, public defender, and state attorney, but excluding county commissioners) (last visited Aug. 4, 2011); Madison Cnty., Constitution Officers, http: //www. madisoncountyfl.com/govemment-links.aspx (excluding county commissioners) (last visited Aug. 4, 2011); Monroe Cnty., Constitutional Officers, http://www.monroecounty-fl.gov/ index.aspx?NID=305 (excluding county commissioners) (last visited Aug. 4, 2011); Okeechobee Cnty., Constitutional Officers, http:// www.co.okeechobee.fl.us/constitutionals (excluding county commissioners) (last visited Aug. 4, 2011); Osceola Cnty., Constitutional Officers, http://www.osceola.org/elected officials/165-4887-0/ constitutional — officers.cfm (excluding county commissioners) (last visited Aug. 4, 2011); Supervisor of Elections, Pasco Cnty., Government — Constitutional Officers, http://www.pascovotes.com/ pccon.asp (including the public defender and state attorney, but excluding county commissioners) (last visited Aug. 4, 2011); Pinellas Cnty., The Constitutional Officers of Pinellas County: A Brief History (2d ed. 2006) (excluding county commissioners), available at http://www.pinellascounty.org/PDF/HEObook. pdf; St. Lucie Cnty., Constitutional Officers, http://www.stlucieco.gov/constitutionaL officers.htm (excluding county commissioners) (last visited Aug. 4, 2011); Taylor Cnty., http://taylorcountygov.com (listing constitutional officers separately from county commissioners) (last visited Aug. 4, 2011).

      . We do not decide whether county commissioners are “constitutional officers” for any other purpose, only that they are not "constitutionally authorized officers” within the meaning of that phrase, and related phrases, as used in Cook.


author: CONNER, J.

text:
    A.M.O., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2418.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

A.M.O. appeals a withheld adjudication of delinquency after being found guilty of loitering and prowling. He claims the trial court erred in denying his motion for judgment of dismissal. We reverse, holding that A.M.O.’s conviction cannot stand based on the application of the last sentence of section 856.021(2), Florida Statutes (2009).

The offense allegedly occurred on November 19, 2009. On that date, Detective James Gibbons was in the area of 68th Avenue and Johnson Street in Hollywood. There had been numerous robberies in the area for iPods, iPhones, money, and bicycles. The detective observed A.M.O. and another juvenile riding their bicycles in front of a store, following some children. A.M.O. and his friend were staring at the children as they would walk by as if they were going to approach, then they would back off. A.M.O. and his friend were wearing black ski masks on their heads that came down to their eyebrows. As they rode on the bicycles, the tops of the masks would slide back and the eye holes became visible.

Gibbons, who testified he watched A.M.O. and his friend for over a minute, became concerned that they were getting ready to rob the children walking in front of the store. He approached A.M.O. and his friend and when he made contact, it appeared A.M.O. and his friend attempted to ride away. However, Detective Gibbons did not believe they were trying to escape. After reading them Miranda warnings, they told Gibbons that the masks had been for Halloween. Since it had been three weeks since Halloween, their explanation did not dispel Gibbons’s alarm and he placed them into custody.

When the State rested, A.M.O. moved for a judgment of dismissal, arguing that according to section 856.021(2), Florida Statutes, the detective was required to ask A.M.O. to identify himself or ask for an explanation for A.M.O.’s presence, but failed to do so. A.M.O. also argued there was no threat to persons or property, only that the detective just had a hunch that these kids were going to somehow harm the children walking around. The trial judge denied the motion.

A.M.O. testified that he and his friend were going to a skate park, located five blocks away from where he was arrested, but stopped at a gas station to get something to drink. When they arrived, they saw one of the officers by the door so they went back across the street. Then the officers arrived and told them to sit down. A.M.O. denied that they were looking at people on the sidewalk or street because they were nowhere near the sidewalk or street. When questioned about the ski mask, he explained, “It’s a hat, a skully, that you can buy from the Quickie store ... And we cut holes in it for Halloween. And then after Halloween, we just still used it because when you ride bikes with skateboards, you start to sweat and it soaks up the sweat from being in your eyes.”

A.M.O. renewed his motion for judgment of dismissal, again arguing that A.M.O. was not asked to identify himself, only why he was wearing the mask on his head, contrary to section 856.021(2). A.M.O. argued that his explanation for being present in the area appeared to be true, and that there was no circumstance that would justify a reasonable alarm for the safety of persons or property in the vicinity. The trial judge denied the renewed judgment of dismissal, and later found A.M.O. guilty, stating, “You weren’t charged with a robbery. I don’t think you were trying to rob somebody, but I find you guilty of loitering and prowling at that station. You are guilty.” (emphasis added).

Section 856.021 provides:

856.021. Loitering or prowling; penalty
(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern, (emphasis added).

In this case, the evidence is clear that the officers did not afford A.M.O. the opportunity to identify himself. Nor was there any testimony that A.M.O. refused to identify himself, took flight, or concealed himself. The statute clearly states that a person cannot be convicted if the law enforcement officer does not require the person to identify himself or herself and explain his or her presence and conduct. More importantly, the trial court found that A.M.O. was not about to commit robbery at the time he was stopped by the officers. At trial, the explanation given by A.M.O. that he stopped at the gas station for a drink before going to the skate park negated the conclusion he was about to rob the children in the area. The trial judge found that to be true (which he expressed on the record). If the officer had believed the same thing as the trial judge, it would have dispelled the alarm and immediate concern. Therefore, the finding that A.M.O. was not trying to rob somebody precluded the trial judge from finding A.M.O. guilty of loitering and prowling. We reverse the judgment of guilt and remand for entry of an order dismissing the case.

Reversed and Remanded.

WARNER and POLEN, JJ., concur.


author: TAYLOR, J.

text:
    Shawn BENNETT, Jr., a minor, by and through his Natural Parents and Guardians, Shawn BENNETT, Sr. and Samantha Bryant-Bennett, Appellant, v. TENET ST. MARY’S, INC. d/b/a St. Mary’s Medical Center, Lee Benaroch, M.D., Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, and Brian Kaplan, Appellees.
    No. 4D09-2725.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and David K. Kelley, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellant.
    Michael K. Mittelmark and K. Calvin Asrani of Michaud, Mittelmark, Marowitz & Asrani, P.A., Boca Raton, for Appellee-Tenet St. Mary’s Inc. d/b/a St. Mary’s Medical Center, Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for Appellee-Palm Beach Gardens Medical Center, James L. White, III of Bobo, Ciotoli, Bocchino, White, Buigas & Corsini, P.A., North Palm Beach, for Appellee-Brian Kaplan, M.D., and Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for Appellee-Lee Benaroch, M.D., for appellee.
   TAYLOR, J.

Plaintiff, Shawn Bennett, Jr., by and through his parents, Shawn Bennett, Sr. and Samantha Bryant-Bennett, appeals the trial court’s order denying his motion for relief from summary judgment entered in favor of Brian Kaplan, M.D. and Palm Beach Gardens Medical Center. ■ Finding no abuse of discretion in the trial court’s determination that plaintiff failed to demonstrate entitlement to relief under Florida Rule of Civil Procedure 1.540(b)(1), we affirm that order.

Plaintiff also appeals the trial court’s order denying plaintiffs motion to set aside a final judgment of dismissal in favor of Tenet St. Mary’s, Inc., d/b/a St. Mary’s Medical Center, and Lee Benaroch, M.D. The dismissal followed repeated failures of plaintiffs counsel to comply with discovery requests, court orders, and to attend scheduled hearings. However, because the trial court failed to expressly set forth an analysis of the Kozel factors prior to dismissal, we reverse and remand for written findings on that order. See Ham v. Dunmire, 891 So.2d 492, 495-96 (Fla.2004).

The parents of three-year-old Shawn Bennett Jr. filed a medical malpractice suit on Shawn’s behalf against several health care providers. A second amended complaint, filed against St. Mary’s Medical Center, Lee Benaroch, M.D, Palm Beach Gardens Medical Center, and Brian Kap-lan, M.D., alleged that in February 2003 defendants failed to timely diagnose and treat Shawn’s meningitis and negligently prescribed a contraindicated antibiotic, which caused him to suffer permanent significant injuries. Plaintiff was represented by Attorney A. Clark Cone.

During the first ten months of representation, Attorney Cone dutifully scheduled and attended depositions, responded to written discovery requests, and served witness and exhibit lists. However, Attorney Cone later stopped complying with discovery requests and court orders compelling discovery, attending depositions and status conferences, and appearing at hearings on motions for sanctions. When he failed to appear at a mandatory status conference on June 12, 2008, the trial court announced it would enter a show cause order as to why the case should not be dismissed or other sanctions imposed.

On June 19, 2008, Attorney Cone appeared at the hearing on the show cause order. The court reviewed its efforts and those of defense counsel to contact Attorney Cone and asked him for “honest, frank answers” concerning his conduct. Attorney Cone offered an explanation that his office building was under construction and that he was having difficulty receiving documents and notices of hearings and conferences. He also advised the court that he had engaged co-counsel for the plaintiff. The court declined to enter sanctions but directed Attorney Cone to comply with all outstanding discovery requests within fifteen days. Attorney Cone failed to do so and, further, failed to appear for a status conference set for October 22, 2008. The trial court then set a pretrial conference for December 29, 2008. The order stated that counsel must appear and that “[fjail-ure to appear will result in the striking of all pleadings and claims in this matter.”

On November 18, 2008, the trial court granted St. Mary’s motion to compel plaintiff to provide responses to the request to produce and execute authorization for medical records and to compel depositions of plaintiffs parents. The court rescheduled the pre-trial conference to January 7, 2009. The order again stated, “You must appear on this date. Failure to appear will result in the striking, of all pleadings and claims in this matter.” On January 7, 2009, at the pre-trial conference hearing, the court noted that plaintiffs counsel failed to appear.

On January 12, 2009, the court entered an order dismissing the plaintiffs case against St. Mary’s and Dr. Benaroch with prejudice. The court found that “Plaintiff has had a protracted history of failing to respond to discovery requests, Orders compelling discovery, Orders compelling execution of authorizations, and Orders imposing sanctions and has failed to appear at Court ordered hearings in this cause, including, but not limited, to” the following: failing to comply with the court’s order to compel better answers to discovery, failing to appear for the hearing, and failing to appear at the status conference; plaintiffs counsel appeared at the June 19, 2008 hearing and was ordered to provide a valid address because he was unreachable; plaintiff failed to comply with this last order and the court granted defendants’ motion to enforce the order; the court awarded sanctions and issued an order requiring plaintiff to respond to all of Be-naroch’s and Kaplan’s outstanding discovery requests, and issued an order directing plaintiffs counsel to appear if he failed to respond to discovery and show cause as to why the case should not be dismissed; plaintiff failed to comply with the court’s order compelling him to respond to updated interrogatories, requests to produce, to execute authorizations, and update depositions; and plaintiff failed to appear at the court-ordered pre-trial conference.

On January 23, 2009, Attorney Cone filed a motion to set aside the dismissal, in which he gave reasons for his noncompliance with orders, including issues with his office not receiving mail or phone calls and a series of overwhelming personal events (including his own health issues and his father’s). No affidavit was attached to the motion, and the motion was not verified. Subsequently, plaintiff, through new counsel, filed an amended motion to set aside the dismissals.

On May 29, 2009, the court held a hearing on plaintiffs motions to set aside the dismissals as to St. Mary’s and Dr. Benar-och. The court explained:

In this particular case, though, when Mr. Cone did appear before the Court, I was very stern to him. I expressed my concern about his inability to comply with this Court’s orders. I expressed my concern about his lack of due diligence with regards to the prosecution of this matter and I even know that the defendants in this particular — even though they were trying to ably represent their own clients, were somewhat sympathetic to the plight of the Ben-netts in light of Mr. Cone’s behavior.
The fact that many of your clients knew as of March of last year they had a problem with their attorney and took no further action, in my humble opinion, does not rise to the level that creates, where this Court has abused any discre-tions or anything of that nature, and while I’m sympathetic to your client and I really feel bad on behalf of this child, I’m left with no alternative but to apply the legal standards.
I’ll deny the motions.

On appeal, plaintiff argues that the trial court erred in denying his motion to set aside the dismissals entered in favor of St. Mary’s and Benaroch. He asserts that the dismissal was granted solely because of attorney misconduct, where the attorney effectively abandoned his client. He also argues that the court erred in not discussing any of the six factors which trial judges must consider under well-settled precedent. Because we agree that the court failed to make express findings, we reverse and remand for such findings.

“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion. See Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) ... While sanctions are within a trial court’s discretion, it is also well established that dismissing an action for failure to comply with orders compelling discovery is ‘the most severe of all sanctions which should be employed only in extreme circumstances.’ Mercer, 443 So.2d at 946. In Mercer, this Court held that ‘[a] deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as "will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.’ ” Ham, 891 So.2d at 495 (citing Mercer, 443 So.2d at 946).

Before a court may dismiss a cause as a sanction, it must first consider the six factors delineated in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), and set forth explicit findings of fact in the order that imposes the sanction of dismissal. Buroz-Henriquez v. De Buroz, 19 So.3d 1140, 1141 (Fla. 3d DCA 2009) (citing Alvarado v. Snow White & The Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009)). The Florida Supreme Court explained that “[t]he dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the conclusion that the failure to obey the court order demonstrated willful or deliberate disregard.” Ham, 891 So.2d at 495. These express findings are required to guarantee that the lower court “consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” Id. at 496. There are no required “magic words,” but the court must find “ ‘that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.’ ” Id. (quoting Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990)).

Where counsel is “involved in the conduct to be sanctioned, a Kozel analysis is required before dismissal is used as a sanction.” Pixton v. Williams Scotsman, Inc., 924 So.2d 37, 40 (Fla. 5th DCA 2006). Pursuant to Kozel, the trial court must consider the following:

“1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.”

Ham, 891 So.2d at 496 (quoting Kozel, 629 So.2d at 818). After considering these factors, if there is a less-severe sanction available than dismissal with prejudice, the court should use it. Id. (citing Kozel, 629 So.2d at 818).

If the malfeasance can be addressed adequately through the use of a contempt citation or a lesser degree of punishment on counsel, the action should not be dismissed. Ham, 891 So.2d at 498. Further, if there is no prejudice to the other party, dismissal is too extreme a sanction. Id. at 499. The lower court must “strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to the action.” Id. Ultimately, the lower court’s “failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.” Id. at 500.

Here, the trial court discussed the first Kozel factor, but failed to articulate how the circumstances of this case established the remaining factors. Contrary to plaintiffs contention, however, we note that the trial court’s oral findings indicate that the court appeared to attribute some blame to the clients for their inaction. Even though client involvement is not a dispositive factor under Ham, 891 So.2d at 497, some consideration should perhaps be given to the circumstance in this case that the clients were standing in a fiduciary capacity in relation to the plaintiff. For the reasons stated above, we reverse and remand for the trial court to make express findings as to each of the Kozel factors. On remand, the trial court is free to reconsider its ultimate ruling, depending upon the findings it makes.

Affirmed in part, Reversed in part and Remanded.

WARNER and LEVINE, JJ., concur.

      . At the same hearing the court denied plaintiff's motion to vacate the summary judgment entered on behalf of Palm Beach Gardens and Dr. Kaplan because the motion did not meet the threshold requirements of Rule 1.540(b).


author: PER CURIAM.

text:
    Anthony PHILIPPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2364.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.

      Anthony Philippe, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion. Brooks v. State, 969 So.2d 238 (Fla.2007). Even if the claim of scoresheet error had been raised in a sworn Rule 3.850 motion, the transcript of the sentencing hearing conclusively shows that the trial court would have imposed the same sentence. Brooks, 969 So.2d at 243 n. 8; State v. Anderson, 905 So.2d 111, 112 (Fla.2005).

Affirmed.

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Dady MERCY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-347.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Dady Mercy, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed without prejudice to seek available relief in the trial court. See Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999) (authorizing a belated post-conviction motion where post-conviction counsel’s actions deprive the defendant of the ability to seek rule 3.850 relief).

POLEN, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Roberto ESTAPE, Petitioner, v. Barbara Ann SCHERER, Respondent.
    No. 4D11-2133.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Bonnie Sockel-Stone and Lindsay Agra-noff of Elser & Foster-Morales, LLC, Miami, for petitioner.
    Terry Ellen Fixel of Fixel & LaRocco, Hollywood, for respondent.
   PER CURIAM.

Petitioner brings this petition for writ of certiorari to review an order that denies his motion for protective order. We grant relief in part and remand for the trial court to further consider the relationship between petitioner and Dr. Seidman and whether petitioner was a “patient” as contemplated by Florida Statute section 90.503(l)(b), and whether he waived any such protection. The record furnished to this court reveals conflict between Dr. Seidman’s anticipated role with respect to “reunification” as represented to the court at the May 2011 hearings, and the signed “Informed Consent for Treatment.” Dr. Seidman’s deposition may proceed so long as he does not detail petitioner’s precise communications until the trial court revisits the nature of their relationship.

WARNER, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Gail LEVIN, Appellant, v. William LEVIN, individually, and as Trustee of the Shirley Sunshine Levin Declaration of Trust Agreement Dated May 22, 2008, Jessica Lynn Levin, and Benjamin Levin, Appellees.
    Nos. 4D09-5143, 4D09-5145.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    James G. Pressly, Jr. of Pressly & Pressly, P.A., West Palm Beach, for appel-lee Estate of Shirley Levin.
   PER CURIAM.

In this probate case, appellant appeals a judgment assessing attorney’s fees against her share of the estate as well as an order taxing costs against her. The trial court did not make the requisite finding of any bad faith, wrongdoing, or frivolousness before awarding fees against appellant’s share of the estate. See Geary v. Butzel Long, P.C., 13 So.3d 149 (Fla. 4th DCA 2009); In re Estate of Lane, 562 So.2d 352 (Fla. 4th DCA 1990). Accordingly, we reverse and remand for the trial court to determine, either from the record or after an evidentiary hearing, whether appellant engaged in any bad faith, wrongdoing, or frivolousness in the pursuit of her claim. The trial court should make this determination after deciding whether the will and trust were the product of an “insane delusion,” as we directed in the related case of Levin v. Levin, 60 So.3d 1116 (Fla. 4th DCA 2011). Although we find no abuse of discretion in the inclusion of the trial notebook and demonstrative aids in the calculation of costs, we nevertheless reverse the order taxing costs, as the award of costs is dependent upon who is ultimately the prevailing party.

Reversed and remanded for further proceedings.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W, JR., Associate Judge, concur.


text:
    Donald James ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-816.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant Donald James Roberts appeals his sentence as a habitual felony offender. We reverse and remand for re-sentencing because the trial court erred in sentencing defendant as a habitual offender after revoking his probation. See State v. Akins, 69 So.3d 261, 2011 WL 2061070 (Fla.2011).

In 1996, defendant was originally sentenced to three years in prison as a habitual offender (HFO), followed by five years of probation as a habitual offender. In 2002, defendant’s probation was revoked and he was sentenced to 75.25 months in prison, followed by 84 months sex offender probation. The trial court orally pronounced that it was sentencing him as an HFO. In 2006, defendant violated his probation again. Sentencing on that probation violation was deferred to February 6, 2007. On that day, defendant was sentenced to 68.25 months in prison, followed by five years probation. However, when sentencing defendant, the trial court failed to pronounce his status as an HFO. Neither the written sentencing order nor the hearing transcript contained language indicating that defendant was being sentenced as an HFO.

Later, in 2009, when defendant’s probation was again revoked, the trial court sentenced him as an HFO to thirty years in prison with 1,522 days credit for time served. Defendant appealed his sentence, arguing that because the trial court did not pronounce that it was sentencing him as a habitual offender in 2007, the court lacked authority to impose a habitual offender sentence when it revoked his probation in 2009. He contends that the thirty-year sentence exceeds the maximum sentence allowed under the 1994 guidelines and is thus illegal.

In Akins, the Florida Supreme Court answered the following certified question in the affirmative:

IF A DEFENDANT HAS BEEN DECLARED TO BE A HABITUAL OFFENDER BEFORE THE IMPOSITION OF HIS INITIAL SPLIT SENTENCE, WHEN THE DEFENDANT LATER VIOLATES PROBATION AND HAS HIS PROBATION REVOKED, DOES THE DEFENDANT LOSE HIS STATUS AS A HABITUAL OFFENDER IF THE TRIAL COURT DOES NOT REPEAT THIS STATUS AT THE SENTENCING HEARING ON VIOLATION OF PROBATION?

69 So.3d at 263.

Here, although defendant was originally sentenced as an HFO, the trial court’s failure to subsequently impose an HFO sentence in 2007 following revocation of defendant’s probation precluded the trial court from imposing an HFO sentence when it revoked defendant’s probation in 2009. Accordingly, we reverse and remand for resentencing defendant under the 1994 guidelines.

Reversed and Remanded for resentenc-ing.

WARNER and CONNER, JJ., concur.


text:
    JUSTINE MARIE SIMONI AMENDED AND RESTATED REVOCABLE TRUST, Appellant, v. MEP ENGINEERING SOLUTIONS INC., Phillip Parker, Spencer Maxwell Bullock Architects, P.A., And Brian Spencer, Appellees.
    No. 1D11-0497.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2011.
    Joseph L. Hammons of the Hammons Law Firm, P.A., Pensacola, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. Cardiothoracic and Vascular Surgery, P.A. v. West Florida Regional Medical Center, 993 So.2d 1060 (Fla. 1st DCA 2008).

HAWKES, CLARK, and SWANSON, JJ., concur.


text:
    Joshua Allen POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1205.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Joshua Allen Poole was charged with burglary, dealing in stolen property, and grand theft. At trial, the court did not instruct the jury that it could not find Poole guilty of both grand theft and dealing in stolen property under section 812.025, Florida Statutes (2009), and Poole did not request such an instruction. The jury convicted Poole of both dealing in stolen property and the lesser-included offense of petit theft, but acquitted him of burglary. Thereafter, the trial court dismissed the theft charge and sentenced Poole only for dealing in stolen property.

On appeal, Poole argues that the trial court fundamentally erred by failing to instruct the jury that under section 812.025, it could not return a guilty verdict for both theft and dealing in stolen property and that he is entitled to a new trial pursuant to Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010). In Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), this court held that the court’s failure to instruct the jury on section 812.025 does not constitute fundamental error warranting a new trial. Accordingly, we affirm Poole’s judgment and sentence and as in Williams, we certify conflict with Kiss and certify the following questions to the Florida Supreme Court:

I. MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?

II. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?

III. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?

KELLY, KHOUZAM, and BLACK, JJ., Concur.


text:
    Carol GREEN, Appellant, v. In re GUARDIANSHIP OF Ronald GREEN, Appellee.
    No. 3D11-57.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Geller & Carolan, and Jessica L. Geller, Plantation, for appellant.

      Jonathan M. Drucker, Coral Gables and Steven Dray, for appellee.
    Before ROTHENBERG, LAGOA and SALTER, JJ.
   PER CURIAM.

Carol Green, the wife of the ward, Ronald Green, appeals an order denying her petition for support and contribution from the ward’s estate and denying her motion to compel visitation with her husband. Finding that the trial court incorrectly concluded that the wife’s petition for support was barred by an earlier agreed order entered in the case, we reverse that portion of the order. We affirm the denial of the wife’s visitation request.

The ward and his wife of 27 years resided together. The ward was diagnosed with Multiple System Atrophy. His condition degenerated to the point that he was unable to speak or care for himself. For almost ten years, the wife provided for the ward’s care. The parties’ expenses and the ward’s medical expenses were paid from joint funds. Over the last year the ward’s family also contributed some monies towards his care. The parties’ joint assets are a car and the marital home. The ward is a one-third beneficiary in his 93-year-old mother’s substantial trust, and he has two life insurance policies valued at about $450,000.

In 2005, the ward and his wife created an estate plan under which the wife was removed as beneficiary of the trust, leaving the trust proceeds for the ward’s children. In exchange, the wife was made the primary beneficiary on the ward’s two life insurance policies.

In 2010, the ward’s son filed a motion for appointment as limited guardian, and later permanent guardian, of the ward. The son moved the father from the marital home to a newly-constructed guest house at the son’s home. The guardian started a domestic violence action (on behalf of the ward) against the wife, alleging verbal abuse. She denied having abused the ward, but admitted that she may have said regrettable things out of frustration. The wife is also elderly and suffers from several degenerative illnesses. The trial court noted a history of animosity between the ward’s wife and son.

The guardian moved to withdraw funds from the ward’s life insurance policies to meet the shortfall in meeting the ward’s expenses. The ward’s monthly income is $7,300; his expenses are $10,497. The wife contested this, arguing that the guardian could use the trust account proceeds. This dispute led to an agreed order that allowed the guardianship to withdraw $225,000 in accelerated insurance benefits. The proceeds were to be held in trust. Any unused proceeds go to the wife upon the ward’s passing.

After that order was entered, the wife was the victim of a home invasion robbery. Her jewelry and other valuables were stolen. She had planned to sell these assets to meet her expenses. The wife’s monthly income is $3,000; her expenses are $6,000. The wife filed a petition for support from the guardianship estate. She also sought to compel visitation with the ward. She asserted that she loved her husband, missed him, and believed that his decision not to see her was due to the guardian’s influence.

At the hearing on the wife’s motion, the trial court stated that it was inclined to award the wife relief but felt that the agreed order precluded the award because the funds were solely for the ward’s support. Thereafter, because the ward’s attorney agreed that the ward was still jointly responsible for the expenses of the house, the court awarded the wife $600 monthly as half the monthly costs of property taxes and insurance, and $300 monthly toward other costs of maintaining the marital home. The court denied the wife’s request for retroactive support and her request for ■visitation. The wife appeals from this order.

The dispositive issue on appeal is whether the trial court properly denied the wife’s requested support based on the language in the agreed order. The court stated that it would be inclined to grant the requested relief

but for the agreed order of June 22nd, which states, among other things, is [sic] that the guardian may apply for the accelerated benefits in the life insurance policy placed in the restricted account to be used for the ward’s prospective expenses. That’s where we’re at. That’s the agreed order. I’m afraid you’ve got to live with it. I don’t see any other way out of it.

However, the language in the agreed order is unambiguous and must be given its plain meaning. See generally Crawford v. Barker, 64 So.3d 1246 (Fla.2011) (stating that plain meaning of words in unambiguous document controls). Nothing in that order precludes a separate application or award for the wife. In fact, that order demonstrates that there would be further discovery and exchange between the parties as to how those proceeds would be utilized.

Additionally, the ward is still statutorily responsible for his wife’s support. § 744.397, Fla. Stat. (2011). Section 744.421 “authorizes any person dependent on the ward for support to petition for an order directing the guardian to provide such support from the ward’s property.” Brogdon v. Guardianship of Brogdon, 553 So.2d 299, 301 (Fla. 1st DCA 1989). The opponents of the wife’s motion have not raised a persuasive argument against her entitlement to support, other than the fact that she receives a pension (and thus is not penniless) and that the ward’s funds might run out before he dies. This is a risk in any guardianship situation, and not a legal justification for avoiding a legitimate support obligation.

Specifically, in keeping with the parties’ estate plan, the wife was divested of her interest in the ward’s trust proceeds in exchange for the insurance proceeds. Essentially, this was the wife’s retirement plan. These proceeds have now been invaded for the ward’s expenses. While the wife did agree to this acceleration in the interest of her husband’s comfort, she did not waive her personal right to seek support. Here, there are sufficient discrepancies in the guardian’s accounting of the ward’s property to demonstrate that there may be other avenues of revenue open for the guardian to meet the ward’s spousal support obligation. Nothing limits the guardian from requesting trust proceeds to meet the ward’s obligations, including spousal support.

For these reasons, the portion of the order denying the wife’s petition for support beyond the awarded $900 is reversed. On remand the wife’s request for support, including retroactive support, shall be considered without preclusion or limitation based on the agreed order. However, we do not disturb the order denying visitation, as the trial court is in the best position to determine the desires of the ward.

Affirmed in part and reversed in part.

      . That order provides, in pertinent part:
      5. Within the next 30 days, the Guardian may apply for the accelerated benefits (up to the total $225,000 limit) from the life insurance policies and place same in the Restricted Guardianship Account to be used for the Ward's prospective expenses above the Ward's income and assets and pursuant to the Court’s Orders as to reasonable expenses, subject to the discovery etc. below.
      6. Within two weeks of June 22, 2010, the Guardian will provide the Wife’s attorney with reports and other evidence of the Ward's necessary expenses, assets and income (per Wife’s Notice to Produce at Hearing, subject to reasonable Objections). If the parties cannot agree as to the Ward’s monthly needs, the Court will set an expedited hearing to determine reasonable expenses upon motion by any party.


author: CRENSHAW, Judge.

text:
    1321 WHITFIELD, LLC, Appellant, v. Carmen SILVERMAN, Appellee.
    No. 2D10-4766.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2011.
    John W. Persse of John W. Persse, Attorney at Law, Sarasota, for Appellant.

      Daniel G. Drake of Drake & Associates, Brandon, for Appellee.
   CRENSHAW, Judge.

1321 Whitfield, LLC, a Florida limited liability company, appeals the final judgment of mortgage foreclosure entered in favor of Carmen Silverman. Whitfield raises two issues on appeal. First, Whitfield argues that the trial court was without jurisdiction to enter the final judgment of foreclosure because Silverman’s constructive service of process upon Whitfield was not permitted by statute. Second, Whitfield argues that constructive service of process was improper because Silver-man failed to make a diligent search and inquiry to effect personal service on the registered agent. We affirm the final judgment of foreclosure because constructive service of process by publication upon a limited liability company is permitted under section 49.021(2), Florida Statutes (2009). And because Whitfield has failed to show reversible error on the face of the record, we affirm the trial court’s finding that Silverman made a diligent search and inquiry to effect personal service on the registered agent.

Whitfield received a loan from Silver-man in the amount of $150,000, which was secured by a promissory note and a mortgage on Whitfield’s property in Sarasota. Silverman initiated a foreclosure action against Whitfield for failing to make payments required by the note. After several unsuccessful attempts to personally serve process upon Whitfield’s registered agent, Silverman ultimately served process upon Whitfield through publication in the Bra-denton newspaper. Silverman then filed a motion for entry of default against Whitfield which was entered in April 2010. Whitfield filed a subsequent motion to quash service of process. The trial court denied the motion after a hearing and entered the final judgment of mortgage foreclosure.

Whitfield contends that Silver-man’s service of process by publication was improper because constructive service of process upon a limited liability company is not permitted. We disagree. Service of process against a limited liability company is governed by section 608.463(1), Florida Statutes (2009). The statute permits service of process “in accordance with chapter 48 or chapter 49, as if the limited liability company were a partnership” or “upon the registered agent at the agent’s street address.” Here, service of process was served under chapter 49 — specifically, section 49.021(2) — which provides for service of process by publication upon “any corporation or other legal entity ” where personal service of process cannot be effectuated. (Emphasis added.) Whitfield argues that the language providing for service of process by publication upon any “other legal entity” excludes limited liability companies and partnerships. Whitfield relies upon the principle of statutory construction that a specific statute controls over a general statute concerning the same subject, to argue that section 48.061, Florida Statutes (2009), controls over section 49.021, because section 48.061 specifically governs service of process on partnerships. “Such a reading, however, contravenes another well-accepted precept of statutory construction which requires reconciliation among seemingly disparate provisions of a statute so as to give effect to all its parts.” Turnberry Court Corp. v. Bellini, 962 So.2d 1006, 1009 (Fla. 3d DCA 2007) (citing Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977)). Further, “ ‘[tjhere must be a hopeless inconsistency before rules of construction are applied to defeat the plain language of one of the statutes.’ ” Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (quoting Agency for Health Care Admin. v. In re Estate of Johnson, 743 So.2d 83, 87 (Fla. 3d DCA 1999)). We conclude that section 48.061 can be read in harmony with section 49.021, and the plain language of section 49.021(2) providing for service of process by publication on “any corporation or other legal entity” applies to partnerships and limited liability companies. Therefore, Silverman’s service of process by publication upon Whitfield was permitted by section 49.021(2).

Whitfield challenges the trial court’s findings that Silverman made a diligent search and inquiry to effectuate personal service of process on the registered agent and that such efforts were sufficient to support service of process by publication. We are unable to meaningfully review these findings because there is no transcript of the hearing on Whitfield’s motion to quash service of process. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”). And because Whitfield has failed to demonstrate reversible error on the face of the record, we affirm the final judgment of mortgage foreclosure.

Affirmed.

CASANUEVA and KHOUZAM, JJ., Concur.


text:
    Mark BLUMSTEIN, Appellant, v. SPORTS IMMORTALS, INC., and Joel Platt, Appellees.
    No. 4D10-42.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.

      Mark Blumstein, Hollywood, pro se.
    Terry E. Resk of Haile, Shaw & Pfaffen-berger, P.A., North Palm Beach, for appel-lees.
   GROSS, J.

When does a negligent misrepresentation cross the line from a gratuitous, curbstone opinion, which cannot support a cause of action in tort, to a statement in which the speaker has a sufficient pecuniary interest to justify the imposition of tort liability? Here, where the defendants were in the business of appraising sports memorabilia, we find that they had an adequate pecuniary interest in the transaction where the misinformation was supplied. We thus reverse the final order dismissing the plaintiffs complaint.

This is an appeal of a final order granting a motion to dismiss for failure to state a cause of action. Fla. R. Civ. P. 1.140(b)(6). In reviewing an order granting a rule 1.140(b)(6) motion to dismiss, this court’s “gaze is limited to the four corners of the complaint.” Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999). “The facts alleged in the complaint must be accepted as true ... [and a]ll reasonable inferences must be drawn in favor of the pleader.” Id. (citations omitted).

Blumstein’s second amended complaint told this story. In October 2006, Athanas-ios Karahalios approached Jeffrey Phillips for a $203,000 loan. As collateral, Kara-halios offered a collection of baseball memorabilia. Before Phillips would make the loan, he required that the collection be appraised as having a value of at least $300,000. That same month, Phillips, Kar-ahalios, and appellant Blumstein, an associate of Phillips, travelled to Sports Immortals’ place of business on Federal Highway in order to have the memorabilia “appraised.”

As the representative of Sports Immortals, Joel Platt met with the group. Sports Immortals and Joel Platt held themselves out “as experts at authenticating and appraising sports memorabilia.” The group disclosed to Platt “that the appraisal was being done for the specific purpose of Phillips relying on it to make a loan against the memorabilia.” Accordingly, both Sports Immortals and Platt “knew” that Phillips was relying upon the appraisal/evaluation to make a loan to Kar-ahalios.

Shortly thereafter, “Platt issued an appraisal/evaluation, indicating that the memorabilia was worth between $350,000.00 and $400,000.00.” Attached to the complaint as an exhibit, this document lists its “subject” as the “Evaluation of Hall of Fame Baseball Montage of the original inductees in Baseball’s Hall of Fame.” The document described the piece to be evaluated:

We have examined a beautiful 58 x 43 montage of the first inductees in the Baseball Hall of Fame. The assemblage contains photos, baseball cards and signatures of Babe Ruth, Grover Alexander, Connie Mack, Tris Speaker, George Sisler, Walter Johnson, Ty Cobb, Nap Lajoie, Honus Wagner, Cy Young & Eddie Collins.

This was the “evaluation”:

The subject matter is a unique one of a kind baseball montage that could not be duplicated. If sold at auction we would estimate a possible sales price between $350,000.00 and $400,000.00.

The evaluation was prepared on Sports Immortals’ letterhead. It listed Platt as the “Founder & President” of “Sports Immortals Museum.” The evaluation was done for Karahalios, whose name and address was listed at the top. The evaluation contained the notation that it had “been performed while the subject matter was enclosed in a shadowbox frame.”

Phillips made the loan to Karahalios, who defaulted on it in October 2007. At that time, “Phillips met with another appraiser to ascertain the current value of the memorabilia with the intent [of] selling the memorabilia to recoup his money.” This second appraiser told Phillips that the Sports Immortals valuation was incorrect because the autographs on the montage “were not authentic.”

Phillips returned to Sports Immortals and Platt for a reevaluation in February 2009. After reexamining the collection, Platt issued an “Evaluation Report” that discussed the autograph montage: “Spoke with autograph authenticator for Lelands Auction House and upon reviewing the scan, felt the signatures were not authentic and would not place the item in their auction.” Platt assigned no value to the montage, but offered to buy other items for $2,750.

Based on the above facts, Blumstein alleged that both Sports Immortals and Platt owed Phillips a duty of care to conduct the appraisal/evaluation in a reasonable manner consistent with the requirements of a “memorabilia appraiser/evaluator/authenticator in the community.” Blumstein further alleged that the defendants failed to meet that standard of care when it issued the original appraisal and that this negligence was a direct and proximate cause of the damages at issue.

The circuit court dismissed the second amended complaint without explanation. We agree with Blumstein that the complaint stated a claim for negligent misrepresentation.

In Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997), the Supreme Court adopted the Restatement (Second) of Torts, section 552(1), to describe the elements of the cause of action:

§ 552. Information Negligently Supplied for the Guidance of Others.
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Id. at 337-39 (quoting Restatement (Second) of Torts § 552 (1977)).

Crucial to this case is whether the deficient valuation was supplied “in the course of [the defendants’] business, profession or employment, or in any other transaction in which [they had] a pecuniary interest.” Two comments to section 552 explain the importance of the context in which a negligent misrepresentation is made. Comment c describes the necessity of a pecuniary interest in triggering a legal duty:

The rule stated in Subsection (1) applies only when the defendant has a pecuniary interest in the transaction in which the information is given. If he has no pecuniary interest and the information is given purely gratuitously, he is under no duty to exercise reasonable care and competence in giving it.

Restatement (Second) of Torts § 552 cmt. c. Comment d further describes the type of pecuniary interest necessary to support a cause of action for negligent misrepresentation:

The defendant’s pecuniary interest in supplying the information will normally lie in a consideration paid to him for it or paid in a transaction in the course of and as a part of which it is supplied. It may, however, be of a more indirect character. Thus the officers of a corporation, although they receive no personal consideration for giving information concerning its affairs, may have a pecuniary interest in its transactions, since they stand to profit indirectly from them, and an agent who expects to receive a commission on a sale may have such an interest in it although he sells nothing.
The fact that the infomation is given in the course of the defendant’s business, -profession or employment is a sufficient indication that he has a pecunianj interest in it, even though he receives no consideration for it at the time. It is not, however, conclusive. But when one who is engaged in a business or profession steps entirely outside of it, as when an attorney gives a casual and offhand opinion on a point of law to a friend whom he meets on the street, or what is commonly called a “curbstone opinion,” it is not to be regarded as given in the course of his business or profession; and since he has no other interest in it, it is considered purely gratuitous. The recipient of the information is not justified in expecting that his informant will exercise the care and skill that is necessary to insure a correct opinion and is only-justified in expecting that the opinion will be an honest one.

Id. § 552 cmt. d (emphasis added).

Thus, “the central principle operating within section 552 is that the defendant supplier of information must have a pecuniary interest in the transaction or context in which the information is supplied in order to merit the imposition of a duty of care in obtaining and communicating the information.” State by Bronster v. U.S. Steel Corp., 82 Hawai’i 32, 919 P.2d 294, 308 (1996). In Reimsnyder v. Southtrust Bank, N.A., 846 So.2d 1264, 1267 (Fla. 4th DCA 2003) (citations omitted), we observed that “[s]ection 552 has been interpreted as limiting liability for the supply of false information to those entities that are in the business of supplying a particular type of information.” One who is in the business of supplying a certain type of information may have the requisite pecuniary interest, even though no consideration is paid for the opinion. See Restatement (Second) of Torts § 552 cmt. d. This pecuniary interest requirement for an actionable negligent misrepresentation contrasts with a “purely gratuitous” “curbstone opinion”; the recipient of such information could not reasonably rely on it because he should not expect the person making the statement to exercise the diligence and care in formulating it that would justify reliance. Where, however,

the information is given in the capacity of one in the business of supplying such information, that care and diligence should be exercised which is compatible with the particular business or profession involved. Those who deal with such persons do so because of the advantages which they expect to derive from this special competence. The law, therefore, may well predicate on such a relationship, the duty of care to insure the accuracy and validity of the information.

1 F. Harper & F. James, The Law of Torts § 7.6 (1956).

As pleaded, the complaint satisfies the elements of a section 552 negligent misrepresentation. The defendants were in the business of authenticating, appraising, buying, and selling sports memorabilia. Seeking out their expertise, Phillips went to their place of business to secure their opinion. He disclosed that he sought the valuation so he could decide whether to make a loan, with the autograph montage as security. The defendants produced the first evaluation in the course of their business. Even though they were not paid for their opinion at the time, the defendants had a sufficient, indirect pecuniary interest in their dealings with Phillips to justify the imposition of liability; as was evidenced in the February 2009 report, appellees saw Phillips as a potential source of future business. Under these circumstances, Phillips could reasonably rely upon the defendants’ evaluation and the law placed upon them a duty of reasonable care to insure the accuracy and validity of the information they provided.

We distinguish this case from Reimsnyder, a case where we held that no negligent misrepresentation cause of action existed. In that case, a defendant had no pecuniary interest in either the transaction or the context in which the information was supplied; the plaintiff had sought to impose liability on the defendant bank for a five to seven minute telephone conversation the plaintiff had with a branch manager about a company that had its accounts at the bank. Reimsnyder, 846 So.2d at 1265. The branch manager told the plaintiff that the company “was an account holder with very large deposits” and that “it was a safe, secure, and reputable company.” Id. The plaintiff invested in the company and lost money. Id. We affirmed a summary final judgment in favor of the bank, explaining two reasons for the decision. First, the bank and its branch manager “were not in the business of supplying information regarding the financial health of companies.” Id. at 1267. Second, neither the bank nor the branch manager “had any pecuniary interest in the transaction between” the plaintiff and the company that was the subject of the plaintiffs inquiries. Id. at 1267-68. The questionable information was “given gratuitously to a person inquiring about a bank customer.” Id. at 1268.

Unlike the bank in Reimsnyder, the ap-pellees in this case had a sufficient pecuniary interest in their dealings with Phillips to support a negligent misrepresentation cause of action. They were in the business of appraising sports memorabilia and Phillips travelled to their place of business to obtain an opinion, after fully disclosing the reason for the inquiry. The 2006 transaction was an opportunity for appellees to establish a relationship with Phillips that might have led to future business.

Reversed and remanded.

STEVENSON, J., and STREITFELD, JEFFREY E., Associate Judge, concur.

      . Blumstein later acquired Phillips’s claim against Sports Immortals and Platt by way of assignment.

      . New York has gone a step further and narrowed the tort of negligent misrepresentation by requiring the existence of a "special relationship” between the person making the negligent statement and the plaintiff; such "[a] special relationship may be established by ‘persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified.' ” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 919 N.Y.S.2d 465, 944 N.E.2d 1104, 1109 (2011) (quoting Kimmell v. Schaefer, 89 N.Y.2d 257, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996)); see also Ravenna v. Christie's Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (N.Y.App.Div.2001) (holding that a complaint for negligent misrepresentation, alleging that an auction house’s specialist in Old Master Paintings gave erroneous information about a work of art, was properly dismissed because the complaint showed only a "walk-in inquiry” and failed to "suggest the existence of a special relationship between the parties”). The New York approach to negligent misrepresentation seeks to separate casual statements in commercial transactions from those types of statements for which liability should properly be imposed. Kimmell, 652 N.Y.S.2d 715, 675 N.E.2d at 454; see also Sain v. Cedar Rapids Comm. Sch. Dist., 626 N.W.2d 115, 124 (Iowa 2001) (stating that a duty under the section arises "only when the information is provided by persons in the business or profession of supplying information to others”).


text:
    STATE of Florida, DEPARTMENT OF REVENUE, on behalf of Judy REYES, Petitioner, v. Pablo Angel KATHCART, Respondent.
    No. 4D11-1161.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Child Support Enforcement, Tallahassee, for petitioner.
    No response filed by respondent.
   PER CURIAM.

The Department of Revenue (“the Department”) seeks a writ of certiorari quashing a non-final order that requires DNA testing of the parents and child for the purposes of determining paternity. We grant the petition and quash the order under review. Because respondent executed the Acknowledgement of Paternity form, legal paternity has been established pursuant to Florida Statute section 742.10(4). Allison v. Medlock, 983 So.2d 789 (Fla. 4th DCA 2008). Significantly, the record before this court does not reflect that respondent has filed a paternity action or otherwise placed paternity in controversy as provided by statute. See § 742.12(2), Fla. Stat. (2010); see also Florida Dep’t of Revenue ex rel. McKnight v. Robinson, 58 So.3d 356 (Fla. 1st DCA 2011); State, Dep’t of Revenue ex rel. Camley v. Lynch, 53 So.3d 1154 (Fla. 1st DCA 2011).

Petition granted and order quashed.

MAY, C.J., WARNER, and CONNER, JJ., concur.


text:
    Anthony HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3475.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.
    Anthony Holley, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court’s order summarily denying appellant’s motion for post-conviction relief is summarily reversed. It is well-settled that when a trial court summarily denies a rule 3.850 motion without an evi-dentiary hearing, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So.2d 449, 450 (Fla.1990)). See also Walkes v. State, 9 So.3d 774 (Fla. 4th DCA 2009); Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007); Smith v. State, 956 So.2d 1266 (Fla. 4th DCA 2007). The trial court’s order in this case did neither. We therefore summarily reverse and remand for the attachment of portions of the record which conclusively refute appellant’s claims, an evidentiary hearing, or a statement of the trial court’s rationale for its decision on the multiple claims for post-conviction relief raised in this 92-page motion, excluding exhibits and other attachments. Of course, the trial court may order a response from the state before ruling on the claims, if necessary.

Reversed and remanded for further proceedings.

MAY, C.J., GROSS and TAYLOR, JJ., concur.