author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Weslie TRIPLETT, Leslie Triplett, Paul Marcum, Michael Maynard and Angie Evans, Appellees.
    No. 4D09-3912.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Philip Massa, Director, Office of Criminal Conflict and Civil Regional Counsel, Fourth District and Melanie L. Casper, Assistant Regional Counsel, West Palm Beach, for Appellee — Weslie Triplett.
    No brief filed for Appellees — Leslie Triplett, Paul Marcum, Michael Maynard and Angie Evans.
   TAYLOR, J.

In this prosecution against multiple defendants for conspiracy to traffic in oxyco-done and trafficking in oxycodone, the state appeals from the trial court’s order granting the defendants’ joint motion to suppress evidence obtained after a traffic stop for littering. We reverse.

Deputy Frank Castor of the Broward Sheriffs Office testified at the hearing on the motion to suppress. He said that while patrolling southbound near the Commercial Boulevard and Northwest 31st Avenue intersection in Tamarac he observed an object being tossed out of the window of a minivan. When the minivan pulled into the back of a shopping center, Castor followed it and activated his emergency lights. He initiated a traffic stop for a violation of Florida’s litter law. Deputy Castor approached the car and asked the driver for identification. The driver, Felicia Maynard, did not have her license in her possession but told the deputy she had a valid Kentucky license. Deputy Castor wrote down her name and date of birth. Through the teletype channel, he confirmed that Maynard had a valid Kentucky license.

Deputy Castor turned off his emergency lights, approached the car again, and warned the occupants to keep their garbage in the car. At that point, according to Deputy Castor, the traffic stop was over and the occupants were free to go. However, he asked them if they were willing to talk to him. The deputy was in uniform, but he did not draw his weapon, make any threats, or promise them anything to speak with him. All six occupants agreed and handed over their identification — Kentucky licenses or ID cards — to the deputy.

Deputy Castor asked if there were any narcotics or weapons in the car. The occupants all responded that they had prescriptions located in a lock box. The deputy did not see a lock box, so he asked for clarification. The front passenger, Angie Evans, said she had the lock box in her backpack. Deputy Castor asked for consent to search the lock box. Evans responded, “no problem ... I have the key for it.” Evans then got out of the passenger side and took the lockbox to the trunk of the deputy’s patrol car and opened it. None of the occupants protested or objected to the deputy’s looking inside the box.

When Evans opened the lock box, the deputy saw numerous bottles of Oxyco-done, in both 30 mg and 15 mg doses, with label prescriptions in everyone’s name except for the driver and Evans. The quantities of pills in these bottles, however, appeared to be inconsistent with personal use. No one other than Evans appeared to be in possession of the lock box, and she had a key to the lockbox. Evans was also in possession of $1500 in cash. The prescriptions were filled at a local pharmacy, which was a known source for persons coming from out of state to obtain such drugs and transport them back home for illegal sale.

Deputy Castor testified that in his training and experience, he has encountered a large number of people from Midwestern states — particularly Kentucky, Ohio, and West Virginia — who have come to Florida for the specific purpose of obtaining large amounts of Oxycodone from the same pharmacy named on the bottles in the lock box. Usually, there is a sponsor who pays for the runners’ entire trip. Based on his observations, he believed that the defendants were in Florida for the same purpose. At this point, Deputy Castor contacted Detective William Schwartz from the BSO Drug Diversion Unit and told him what had happened. Schwartz instructed Castor to detain them until he could arrive in a few minutes. Deputy Castor removed all the occupants from the minivan and separated them. Detective Schwartz and his partner arrived in about ten minutes and took over the investigation. After the defendants were given Miranda warnings, they provided statements admitting their involvement in an Oxycodone trafficking ring.

Detective Schwartz also testified at the suppression hearing. He explained that in October 2008 he worked for the Strategic Investigations Division and Drug Diversion Unit. As a member of the Unit, his job was to advise officers on interstate trafficking of prescription drugs, especially by runners from Kentucky and Ohio. He explained how these interstate drug deals generally work. Detective Schwartz said that Evans was most likely the sponsor, and Maynard the driver. He then explained the significance of the bottles and quantities of pills recovered from the lock box.

The trial court found that the initial traffic stop for littering was valid, and that the traffic stop was followed by a consensual citizen’s encounter. The court went on to find, however, that when the deputy detained the defendants for further investigation by Detective Schwartz, the defendants were not free to leave and the encounter evolved into a stop and detention. The court concluded that the deputy lacked a reasonable or articulable suspicion for the detention, because all he had was a large quantity of prescription medications with what appeared to be valid prescription labels. The court further noted that the deputy never verified whether the prescriptions were, in fact, issued by the doctor. In its order granting the joint motion to suppress, the court stated that “[t]he officer did not have probable cause to detain the Defendants past the initial stop for littering or seize the prescription medicine.” The state appealed the order of suppression.

“We review orders on motions to suppress to determine whether the trial court’s factual findings are supported by competent substantial evidence and review legal issues de novo.” State v. Young, 971 So.2d 968, 971 (Fla. 4th DCA 2008) (citing Thomas v. State, 894 So.2d 126, 136 (Fla. 2004)). “A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009) (citing State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001)). “When considering a motion to suppress, a court is required to consider the ‘totality of [the] circumstances’ that led to the discovery of evidence.” State v. Hendrex, 865 So.2d 531, 533 (Fla. 2d DCA 2003) (citing State v. Butler, 655 So.2d 1123, 1128 (Fla.1995)). Further, the appellate court “review[s] de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s finding of reasonable suspicion.” Hollingsworth v. State, 991 So.2d 990, 992 (Fla. 4th DCA 2008) (citing Lee v. State, 868 So.2d 577, 579 (Fla. 4th DCA 2004)).

Here, the trial court’s factual findings are not disputed. The state contends that the trial court’s legal conclusions were incorrect because the deputy, based on his training, experience, and observations, had sufficient reasonable suspicion to conduct an investigatory stop of the defendants. We agree. During the deputy’s discussion with the defendants after the traffic stop, he learned that all the van’s occupants were from Kentucky, a Midwestern state previously identified by law enforcement as the origin of substantial drug runner activity in Florida; that the Oxycodone prescriptions were filled by a local pharmacy commonly used by drug runners; that a passenger was in sole possession of a lockbox that contained several bottles of large quantities of Oxycodone prescribed for everyone except herself and the driver, and that she also had in possession a substantial amount of cash, which could have been used to finance the operation.

In Popple v. State, 626 So.2d 185, 186 (Fla.1993), the Florida Supreme Court stated that in an investigatory stop, as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” A reasonable suspicion “has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience.” Origi v. State, 912 So.2d 69, 71 (Fla. 4th DCA 2005).

Section 893.135(l)(c)l., Florida Statutes (2008), provides, in pertinent part, that any person who “knowingly sells, purchases, manufactures, delivers, or ... who is knowingly in actual or constructive possession of, 4 grams or more of ... oxycodone” commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs.” It seems that the trial court, in finding that the officer lacked grounds for detaining the defendants, focused on the fact that the prescription bottles in Evans’s possession appeared to have valid prescription labels. However, as the state points out, the crime of trafficking can be committed in ways other than by unlawfully possessing the Oxycodone. Section 893.135(l)(c)l. also prohibits the act of unlawfully delivering oxycodone.

We conclude that the totality of circumstances, viewed through the lens of the deputy’s training and experience, gave the deputy reasonable suspicion to believe that the defendants were engaged in trafficking in Oxycodone. His temporary detention of the defendants was therefore justified. Accordingly, we reverse the order granting the defendants’ motion to suppress and remand for further proceedings.

Reversed and Remanded.

WARNER and CONNER, JJ., concur.

      . Detective William Schwartz testified to the quantities as follows:
      [Item] 1.1 was a prescription bottle, RX 41325, labeled to the name of Leslie Triplett, for Oxycodone, 30 milligrams, quantity of one hundred, allegedly authorized by (doctor) on 10/31 '08, filled in [pharmacy], containing at the time of receipt in one hundred Oxycodone thirty milligram tablets, approximate weight of 12.4 grams.

      ... Another prescription was found for Leslie Triplett for Oxycodone thirty, quality [sic] of one hundred, containing one hundred pills, same doctor. Another prescription for Leslie Triplett for Oxycodone, thirty milligrams, quantity of one hundred, filled by that doctor containing only ten. Prescription for Michael Maynard, Oxyco-done, thirty milligrams, labeled as quantity of 240, containing one hundred and 40 Oxy-codone thirty milligram tablets.
      A second one for Michael Maynard, same prescriptions. This bottle containing one hundred Oxycodone thirty milligram tablets. And traveled down to item number 3.1 a prescription for Wesley [sic] Triplett for Oxycodone, thirty milligrams, quantity of 210.
      This one authorized by [doctor]. This bottle contains one hundred Oxycodone 30 milligram tablets, 3.2. Again, for Welsey [sic] Triplett, Oxycodone, thirty milligrams, same label," same bottle, containing one hundred Oxycodone 30 milligram tablets. And finally, the last bottle labeled to Weslie Triplett, for Oxycodone, 15 milligrams, quantity of 90, and this one contained 80 Oxycodone, 15 milligrams.

      . Florida’s “Stop and Frisk Law,” codified in Section 901.151, Florida Statutes (2008), permits "a law enforcement officer who encounters any person under circumstances which reasonably indicate that such person has committed a crime to temporarily detain the suspect and ascertain identity and the circumstances that led the officer to believe that a crime had been committed.”


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Pamela L. GIVANS, Appellant, v. FORD MOTOR CREDIT COMPANY, LLC, a Delaware limited liability company authorized to conduct business in Florida, Appellee.
    No. 4D09-2285.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Catherine A. Riggins, Miami Gardens, for appellant.
    Charles A. Moorehead, III, and Michael J. Ingino of Moody, Jones, Ingino & Moorehead, P.A., Plantation, for appellee.
   STEVENSON, J.

This appeal stems from a complaint filed by Ford Motor Credit Company, LLC (“FMCC”) against appellant Pamela Gi-vans and Accelerated Response Time, Inc. (“Accelerated”), alleging that Givans defaulted on a guaranty obligating her to pay monies owed on a car leased to Accelerated. A jury found that Givans had breached the guaranty and awarded damages in the amount of $58,664.79. Because FMCC failed to establish the occurrence of a condition precedent, we reverse.

In 2002, Givans met a man who offered her a position with Accelerated if she agreed to help lease a vehicle for the company. Givans agreed, believing that she would be leasing the vehicle in the capacity as Secretary of Accelerated. However, the guaranty containing Givans’ signature was signed in her individual capacity only. The guaranty states:

To cause Lessor to lease the Vehicle to Lessee under the Motor Vehicle Lease Agreement dated as described above, each person who signs below as a “Guarantor” guarantees payment under the Motor Vehicle Lease Agreement. This means that if the Lessee fails to pay any money that is owed under the Motor Vehicle Lease Agreement each one who signs as a Guarantor will pay it when asked.

Accelerated subsequently defaulted on the lease and FMCC initiated the instant lawsuit against Givans. After the jury returned its verdict, Givans filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial, arguing, among other things, that the verdict was contrary to the manifest weight of the evidence because FMCC failed to establish that it asked Givans for payment. Givans’ post-trial motion preserved her challenge to the sufficiency of the evidence, and we review denial of that motion for an abuse of discretion. See Ruth v. Sorensen, 104 So.2d 10, 15 (Fla.1958); J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So.2d 367, 371 (Fla. 3d DCA 2002).

An unambiguous contract provision must be given its plain meaning. See Lazzaro v. Miller & Solomon Gen. Contractors, Inc., 48 So.3d 974, 975 (Fla. 4th DCA 2010). “A contract of guaranty may be absolute or it may be conditional.” Rooks v. Shader, 384 So.2d 681, 683 (Fla. 5th DCA 1980). Under an absolute guaranty, the guarantor becomes liable immediately upon default by the debtor. See id. Further, the guarantor is not entitled to notice of default. See Chris Craft Indus., Inc. v. Van Valkenberg, 267 So.2d 642, 646 (Fla.1972). By contrast, under a conditional guaranty, the guarantor’s liability is premised upon “the happening of some contingent event other than the default by the principal debtor.” Rooks, 384 So.2d at 683. Liability does not attach until occurrence of that event. See id. The plain language of the guaranty premised Givans’ liability upon her being asked to pay. Because the guaranty premised Givans’ liability on her being asked, it was conditional and Givans’ liability could not attach until that event occurred. FMCC did not present any evidence that it asked Givans for payment. FMCC’s argument that the filing of the lawsuit could constitute its compliance of demand for payment has no support in the law or reason since performance of the condition precedent was required in order to give rise to the right of action in the first place.

Accordingly, the jury verdict in favor of FMCC cannot stand and this cause is remanded for entry of judgment for Givans.

Reversed and remanded.

TAYLOR and GERBER, JJ., concur.


author: GROSS, C.J.

text:
    STATE of Florida, Appellant, v. Jeffrey Singming SUN, Appellee.
    No. 4D10-3514.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant/cross-appellee.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appel-lee/cross-appellant.
   GROSS, C.J.

In this prosecution for doctor shopping, the trial judge suppressed the defendant’s patient contracts and statements from his doctors, which a police officer obtained without a subpoena or warrant, and denied suppression of the defendant’s pharmacy records, likewise obtained without a subpoena or warrant. The state appeals that part of the order concerning the medical records, and the defendant cross-appeals the court’s ruling on the pharmacy records. We affirm the order in all respects.

I. FACTS

The facts are undisputed. A deputy arrested Jeffrey Sun’s brother for driving under the influence. In the car, the deputy found a notebook. Seeing that the notebook contained information on different pharmacies and dollar amounts, the deputy suspected doctor shopping. This suspicion led him to turn the notebook over to Detective Eric Keith. Detective Keith inspected the notebook and started an investigation that brought him to a CVS pharmacy in Juno Beach. There, Detective Keith sought the brother’s prescription history. The pharmacist helpfully pointed out that the brother had a twin, Sun, and gave Detective Keith patient profiles for both men. Visiting several other area pharmacies, Detective Keith obtained Sun’s patient profile from each, all without a warrant or a subpoena.

The investigation shifted into its next phase. Detective Keith compared all of Sun’s patient profiles to determine whether Sun had gotten the same or similar medications from two or more physicians within a thirty-day period. Sun had. Detective Keith proceeded to contact the three prescribing physicians. He asked each if they had a patient in their care with Sun’s name and birth date, and each said yes. When asked, each doctor denied knowing Sun had been seeing other doctors who had been giving him the same or similar prescriptions. They provided written statements to that effect and handed over Sun’s signed patient contracts. In his probable cause affidavit, Detective Keith noted “they did not disclose the nature of any of Sun’s underlying health condition(s) that [necessitated] issuance of the prescriptions.” As with the pharmacy records, Detective Keith had neither a warrant nor a subpoena for these items.

The state charged Sun with oxycodone trafficking, contrary to subsection 89B.135(l)(c)l.a., Florida Statutes (2009), and withholding information from a practitioner, which is prohibited by subsection 893.13(7)(a)8., Florida Statutes (2009). Subsection 893.13(7)(a)8. proscribes the withholding of information from a practitioner to obtain a prescription for a controlled substance, when the person has obtained the same or a similar prescription from another practitioner within the past thirty days. This practice is known as doctor-shopping.

Sun moved to suppress the pharmacy records, the patient contracts, and the doctors’ statements. Sun offered three legal bases in support of the items’ suppression. First, he argued Detective Keith violated section 456.057, Florida Statutes (2009), which provides for the confidentiality of medical records and information and sets forth those circumstances that allow law enforcement to obtain them. Second, he contended that Detective Keith’s taking of the items violated his right to privacy under Article I, Section 23 of the Florida Constitution. Finally, Sun asserted the seizure was illegal under Article I, Section 12 of the Florida Constitution.

After a hearing, the trial judge granted Sun’s motion as to the patient contracts and doctors’ statements, but denied it as to the pharmacy records. Florida’s constitutional right to privacy and statutory doctor-patient privilege protected the patient contracts and doctors’ statements, and Detective Keith failed to follow the section 456.057 procedure to obtain them. Accordingly, the judge suppressed them. He ruled, however, that subsection 893.07(4), Florida Statutes (2009), empowered Detective Keith to obtain the pharmacy records without a warrant or subpoena, so he did not grant the motion to suppress those items.

II. THE STATE’S APPEAL

In challenging the suppression of Sun’s patient contracts and doctors’ statements, the state argues that Sun’s right to privacy and doctor-patient privilege were reduced once Detective Keith discovered possible doctor shopping, a criminal act implicating the state’s compelling interest in drug abuse prevention and control. The state’s narrow focus on its interest in obtaining the items misses the point. This case is not about the state’s interest in curbing drug abuse. Rather, it is about what the police can and cannot do in furthering that interest. We agree with the trial judge that Detective Keith wholly failed to follow the statutory procedure to obtain the items, and that suppression was the proper remedy.

A. The Relevant Law

Our analysis begins with Article I, Section 23 of the Florida Constitution, which in pertinent part provides: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” This right to privacy is fundamental but not absolute. State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Thus, the right will yield to a compelling state interest, a requirement that is satisfied by an “ongoing criminal investigation ... when there is a clear connection between illegal activity and the person whose privacy has allegedly been invaded.” Id. The state constitutional right to privacy protects medical records. See id. (“A patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution. ...”).

In addition to the constitutional right to privacy, section 456.057, Florida Statutes (2009), creates a broad doctor-patient privilege of confidentiality that protects both medical records and communications between a person and his doctor. See Acosta v. Richter, 671 So.2d 149, 15051, 154, 156 (Fla.1996) (contrasting the pre-1988 version of the statute that created “a limited statutory privilege of confidentiality for certain medical records” with the post-1988 version, similar in material respects to the current version, that created “a broad and express privilege of confidentiality as to the medical records and the medical condition of a patient” or, stated differently, “a physician-patient privilege of confidentiality for the patient’s personal medical information”).

Section 456.057 also lays out the procedures a third party must follow to obtain the release of medical records and confidential information. Similar to the hospital records statute at issue in Johnson, section 456.057 represents a “legislative attempt to balance a patient’s privacy rights against legitimate access to” the patient’s medical information. Johnson, 814 So.2d at 393. The statute establishes procedural safeguards which, if followed, allow the state to obtain protected information without contravening the privacy protection of Article I, Section 23. See State v. Rutherford, 707 So.2d 1129, 1131— 32 (Fla. 4th DCA 1997), disapproved on other grounds by Johnson, 814 So.2d 390.

Because Detective Keith did not follow the statutory procedures, there are only three real questions: (1) whether the patient contracts fall within the scope of the right to privacy in medical records; (2) whether the doctors’ statements fall within the scope of the doctor-patient privilege; and, if so, (3) whether the trial judge properly suppressed the items. We answer all three in the affirmative.

B. The Patient Contracts

The first subsection relevant to the state’s appeal is 456.057(7)(a), Florida Statutes (2009), which applies to medical records. In pertinent part, that subsection provides that

such [medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

§ 456.057(7)(a). To obtain medical records, the statute requires law enforcement to obtain a subpoena after notice to the patient. See id.

The definition of medical records, and thus the scope of subsection (7)(a), is provided in the immediately preceding subsection: “reports and records relating to [a doctor’s] examination or treatment [of the patient], including X rays and insurance information.” § 456.057(6); see also State v. Shukitis, 60 So.3d 406 at 407-408 (Fla. 2d DCA 2010) (looking to subsection (6) for the definition of subsection (7)(a)’s “such records”).

Appellate courts have faced similar issues of scope. In those cases, the trial courts did not consider the applicability of subsection 456.057(7)(a) to records and information obtained from physicians, so the appellate courts remanded with instructions to “make specific findings as to which portions of the physician information amounted to” medical records per subsection (6). Shukitis, 60 So.3d at 409. See also State v. Wright, 59 So.3d 263 (Fla. 4th DCA 2011) (same); Lamb v. State, 55 So.3d 751 (Fla. 2d DCA 2011) (same); State v. Here, 67 So.3d 266 (Fla. 2d DCA 2011) (same).

There is no need to remand this case for the trial judge to determine whether the patient contracts were medical records. This case is procedurally distinguishable from the second district’s eases because the trial judge here applied the correct statute in evaluating the patient contracts. He correctly found that the contracts were medical records within the meaning of subsection 456.057(6).

The state urges us to narrowly define medical records as only those records “having to do with the actual examination and treatment of the patient,” which would exclude records involving information provided “prior to the examination, or not having anything to do with the examination or treatment.” We reject this reading. The plain language of the statute provides that medical records are “reports and records relating to [a doctor’s] examination or treatment [of the patient], including X rays and insurance information.” § 456.057(6). A patient contract is a record “relating to” the patient’s treatment— it is the document that starts the treatment. The inclusion of “insurance information” within the definition indicates a broad scope, since such information exists outside of the doctor’s examination of the patient.

Accordingly, we hold that the patient contracts that Detective Keith obtained from Sun’s doctors were medical records protected by subsection 457.057(7)(a).

C. The Doctors’ Statements

We now turn to the statements from Sun’s doctors. The relevant subsection is 456.057(8), Florida Statutes (2009). It provides in full:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

Id.

Based on this plain language, the statute creates only four exceptions that allow doctors to break the privileged relationship and disclose confidential information:

(1) to other health care providers involved in the care and treatment of the patient; (2) if permitted by written authorization from the patient; (3) if compelled by subpoena; and (4) to attorneys, experts, and other individuals necessary to defend the physician in a medical negligence action in which the physician is or expects to be a defendant. No other disclosures are statutorily permitted....

Lemieux v. Tandem Health Care of Fla., Inc., 862 So.2d 745, 748 (Fla. 2d DCA 2003) (citation omitted) (footnote omitted) (citing Acosta v. Richter, 671 So.2d 149, 155-56 (Fla.1996)).

Detective Keith did not obtain a subpoena to reach confidential information from Sun’s doctors, and no other exception applies. To determine whether the doctors’ statements were “confidential,” thus triggering the requirement of a subpoena, we must define the scope of “information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient.” § 456.057(8).

The state urges a restrictive interpretation of subsection 456.057(8). To make this argument, it relies on a decision from an Ohio court, State v. Desper, 151 Ohio App.3d 208, 783 N.E.2d 939 (2002). In that case, the court confronted Ohio’s statutory doctor-patient privilege in a doctor-shopping case that involved similar questions posed by law enforcement to the defendant’s doctors. Id. at 947. The trial court had suppressed the answers law enforcement received, which the appellate court found to be error. Id. at 942, 950. Desper is, however, distinguishable. As Sun asserts, the operative language of Ohio’s statute is different from the operative language of Florida’s.

Superficially, Ohio’s statute is similar to ours because, like Florida, Ohio had no common law privilege before its adoption. Id. at 947. Thus, the privilege was “in derogation of the common law and its protections must be strictly construed.” Id. But, Ohio’s privilege protects only “com-municationfs]” that are “necessary to enable the physician ... to diagnose, treat, prescribe, or act for a patient.” Ohio Rev. Code Ann. § 2317.02(B)(1), (B)(5)(a) (emphasis added). That more limited scope excluded from the privilege a patient’s lies to his doctor, because “[a] lie is not necessary to enable a physician to diagnose, treat, prescribe, or act for the patient.” Desper, 783 N.E.2d at 949-50. Because the doctors’ answers to law enforcement disclosed only the lies the defendant told in pursuit of his doctor-shopping, the appellate court held that the trial court erred in suppressing the doctors’ statements. Id. at 950.

In contrast to Ohio’s statute, Florida’s is broader. The plain language protects information made “in the course of the care and treatment,” § 456.057(8), and is therefore not limited to information necessary for treatment. Indeed, courts have consistently held that the statute expressly created a broad doctor-patient privilege, especially in light of the earlier, more limited statutory privilege. See, e.g., Acosta, 671 So.2d at 154 (“This [statute] creates a broad and express privilege of confidentiality.... [T]he primary purpose of the 1988 amendment was to create a physician-patient privilege where none existed before, and to provide an explicit but limited scheme for the disclosure of personal medical information.” (footnotes omitted)).

This legislative intent to create a broad privilege sets subsection 456.057(8) apart from other statutes in derogation of the common law. The application of the interpretive rule for such statutes — that they be strictly construed — depends on the legislature’s intent in enacting the statute and displacing the common law. See Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 581 (Fla.1996) (“It is a rule of statutory construction that a statute in derogation of the common law must be strictly construed. A court will presume that such a statute was not intended to alter the common law other than by what was clearly and plainly specified in the statute.” (citations omitted)). Thus, when the legislature writes a broad statute derogating the common law, the courts will honor the legislative intent to read the statute broadly-

The supreme court has implicitly held this to be the ease with the doctor-patient privilege. In Castillo-Plaza v. Green, 655 So.2d 197, 201 (Fla. 3d DCA 1995), the third district applied the strict interpretation rule to the 1988 amendment to limit the privilege. In dissent, Judge Jorgenson understood the amendment’s plain language to broaden the scope of the privilege, supporting his reasoning with the privilege’s historical and public policy roots. Id. at 206 & n. 4 (Jorgenson, J., dissenting). When the supreme court disapproved Castillo-Plaza in Acosta, it cited Judge Jorgenson’s reasoning with approval when it concluded that the amendment’s primary purpose was to create a “broad and express privilege of confidentiality.” 671 So.2d at 154-55 & n. 7 (citing Castillo-Plaza, 655 So.2d at 206 n. 4 (Jorgenson, J., dissenting)).

Finally, the state’s argument suggests that it reads a crime or fraud exception into subsection 456.057(8). The trial judge correctly concluded that there is no such exception, and we will not interfere with the legislature’s authority by creating one. Cf. State v. Famiglietti, 817 So.2d 901, 912 n. 12 (Fla. 3d DCA 2002) (Sorondo, J., dissenting) (“In Florida, only the attorney-client privilege and the accountant-client privilege contain crime-fraud exceptions.”).

Given the language and history of Florida’s statutory doctor-patient privilege, we hold that the privilege existing between Sun and his doctors protected the statements the doctors made to Detective Keith.

D. Suppression

Having determined the items in this case fall within the ambit of the relevant statutes, and that Detective Keith did not follow the proper procedures to obtain them, we must next determine whether suppression was the proper remedy. When law enforcement does not comply with the procedural requirements of statutes like the ones here, the items obtained should be suppressed when law enforcement made no good faith effort to comply. See Johnson, 814 So.2d at 393-94.

In considering the question, we are aware that Florida is the national epicenter for prescription drug abuse, a plague that is facilitated by pill mills and doctor shopping. Prosecutions like this one are designed to criminally sanction those involved. However, the efforts in pursuit of that goal must still comply with the law — a compliance that law enforcement can achieve with little extra effort.

As the trial judge wrote in the order on appeal:

Given the fact that these statutes were passed into law over a decade ago, and that the State Attorney’s Office for the 15th Judicial Circuit has handled similar cases and is well aware of the mandated procedures, it is almost incomprehensible that law enforcement proceeded in the manner as they did herein. Other than one’s expectation of privacy in one’s personal effects and papers in our homes, Americans next most hold as intensely personal and private the status of their health, medical treatment, medical advice and therapy.
Suppression is the only remedy to sanction this police misconduct and deter similar misconduct. The danger of the law enforcement practices in this case are amply demonstrated by the willingness of medical professionals to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals on the mere naked display of authority by law enforcement. Without court intervention and review as mandated by statute, countless innocent patient records are subject to examination and review by well-meaning but misguided law enforcement officials.
Moreover, the procedures mandated by statute and decisional law, which are well known to the State and have been followed in other cases, could have been easily followed and complied with in [this] prosecution! ] designed to address the pervasive problem in this community of “doctor shopping” and the drug abuse which would necessarily follow. Instead, law enforcement officials ignored the law and took investigative shortcuts to build [a] case[] that discounted the important privacy interests attendant to medical records and information.

(Citations omitted.)

We agree with the trial judge’s implicit conclusion that Detective Keith’s conduct displayed a lack of good faith to comply with the statutes. That conduct requires suppression of the medical records and confidential information that he obtained. Application of the exclusionary rule where there has not been a good faith effort to comply with subsection 456.057(8) should “instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of’ a patient. State v. White, 660 So.2d 664, 666-67 (Fla.1995) (quoting United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974))).

Law enforcement does not have unlimited access to a person’s medical records and the confidential information he has shared with his doctors. In enacting the procedure set forth in section 456.057, our legislature struck a balance between a person’s right to keep medical matters private and the state’s interest in obtaining that information in certain circumstances. Because Detective Keith made no good faith effort to comply with that procedure, we affirm the trial judge’s suppression.

III. SUN’S CROSS-APPEAL

In the cross-appeal, Sun argues that the trial court should have also suppressed the pharmacy records Detective Keith obtained without a subpoena or a warrant. We disagree.

As we recently held in State v. Wright, “the deputy’s obtaining of the pharmacy records was authorized by section 893.07(4), Florida Statutes (2009), and ... the statute does not violate Article I, Section 23 of the Florida Constitution.” 59 So.3d at 263 (Fla. 4th DCA 2011) (citing Hendley v. State, 58 So.3d 296 (Fla. 2d DCA 2011); State v. Yutzy, 43 So.3d 910 (Fla. 2d DCA 2010); State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010); State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009)).

With respect to the Fourth Amendment argument Sun raises on appeal, we construe it to be an as-applied challenge and deem it waived because it was not clearly raised below. See Trushin v. State, 425 So.2d 1126, 1129-30 (Fla.1982) (“The facial validity of a statute, including an assertion that the statute is infirm because of over-breadth, can be raised for the first time on appeal.... The constitutional application of a statute to a particular set of facts is another matter and must be raised at the trial level.”); see also State v. Hodges, 616 So.2d 994, 994 n. 1 (Fla.1993) (“Such a[n] [as-applied] challenge requiring resolution of extensive factual matters cannot be raised for the first time on appeal.” (citing Trushin)). Cf. State v. Fernandez, 36 So.3d 120, 121 (Fla. 2d DCA 2010) (where the defendant expressly argued in her motion to suppress that subsection 893.07(4) was unconstitutional as applied to the inspection and seizure of her prescription records).

Affirmed.

HAZOURI and Ciklin, JJ., concur.

      . We previously affirmed without opinion a similar order from the trial judge in State v. Vandyne, 50 So.3d 1151 (Fla. 4th DCA 2010) (table decision). In fact, because the facts and issues in this case were essentially the same as those in Vandyne and other consolidated doctor-shopping cases, the trial judge incorporated the order from those cases into the order on appeal in this case.

      . We find support for this interpretation in the relevant rule of the Florida Administrative Code. Cf. Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 31:6 & n. 1 (7th ed. 2010) (“Administrative regulations have been frequently used as guides to determine the meaning of statutory provisions.” (footnote omitted)). That rule requires physicians to keep as medical records agreements between the patient and physician. See Fla. Admin. Code R. 64B8-9.013(3)(f) (2009) (under the heading "Medical Records,” requiring physicians "to keep accurate and complete records to include, but not be limited to: ... 8. Instructions and agreements”). See also Robert I. Rubin, Police Requests for Patient Narcotics Agreements: Placing Physicians Between a Rock and a Hard Place, Fla. Med. Mag., Fall 2008, at 23, 27 ("A Narcotics Agreement is an 'instruction' or an 'agreement.' Although Florida Statute § 456.067 is silent concerning whether a Narcotics Agreement is a medical record, the Florida Administrative Code clearly states that it is a medical record, and thus is subject to confidentiality protection.”).

      . See, e.g., Don van Natta Jr., Agents Raid Florida Clinics in Drug Crackdown, N.Y. Times, Feb. 24, 2011, at A16 (describing "storefront clinics in Miami-Dade, Broward and Palm Beach Counties” as “a national clearinghouse for illegal prescription drugs and highly addictive painkillers like oxyco-done,” and that "South Florida has long been a place where prescription drugs could be obtained easily and cheaply”).


author: PER CURIAM.

text:
    Tommy Lee ALCORN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5049.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s postconviction motion. The trial court disposed of four of the five claims without an evidentiary hearing and held an evidentiary hearing on one claim. On appeal, appellant argues error as to two of the claims. The unargued claims are abandoned. Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010). We affirm the trial court’s dismissal of claim three without further discussion.

In claim five of his motion, appellant argued that his trial attorney failed- to convey before trial a twelve-year plea offer and failed to advise him at the time of the offer that he qualified as a habitual felony offender (HFO) and faced a potential life sentence. He alleged that he would have accepted the twelve-year offer if he had known.

Appellant stated two distinct claims of ineffective assistance of counsel: (1) that he was not advised of the plea offer; and (2) that he was not advised of the maximum sentence he faced at the time of the plea offer. Morgan v. State, 991 So.2d 835, 839-40 (Fla.2008) (holding that to establish a claim of this type the movant must allege and prove that “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed”). See also Cottle v. State, 733 So.2d 963, 969 (Fla.1999) (recognizing the sufficiency of an ineffective assistance of counsel claim based on counsel’s failure to convey a plea offer).

In Count I, appellant was charged with sale of cocaine within 1000 feet of a church, a first degree felony with a thirty-year statutory maximum. § 893.13(l)(e)l., Fla. Stat. (2003). At trial, the State was unable to prove that the sale occurred within the correct distance, dismissed that charge, and proceeded on the lesser offense of simple sale of cocaine. The jury convicted appellant of the second-degree felony sale of cocaine, and the trial court sentenced him as an HFO to thirty years in prison. Appellant received a concurrent term of five years in prison on Count II, possession of cocaine.

The trial court found that counsel conveyed the twelve-year plea offer to appellant before trial but appellant was not satisfied with the offer and told counsel to demand a speedy trial. This factual finding is supported by competent substantial evidence, including notes that counsel made on the case file and emails with the prosecutor which the State introduced into evidence. Although appellant was under the misimpression that he did not qualify as an HFO when he rejected the plea offer, he ultimately received a sentence no greater than that which he knew could be imposed. We affirm.

Standard of Review

After a postconviction evidentiary hearing, a trial court’s factual findings are subject to a deferential standard of review and should be affirmed if supported by competent substantial evidence while the postconviction court’s legal conclusions are reviewed de novo. Derrick v. State, 983 So.2d 443, 450 (Fla.2008); Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Failure to Convey the Plea Offer

Appellant testified that he asked counsel to get him a plea offer before trial but never received any offers. Although he discussed the possibility of habitual offender sentencing with counsel, he believed going into trial that he did not qualify. He testified that he would have accepted the twelve-year plea offer.

Counsel did not have a specific recollection of conveying the offer but was certain based on her general practice and the circumstances, including the timing of events, the notes on the case file, and emails with the prosecutor, that she conveyed the offer.

Counsel testified that, at a June 7, 2005 meeting at the jail, appellant indicated that he wanted a good plea offer or a speedy trial. An email chain introduced into evidence by the State — and corroborated by testimony from the prosecutor and defense counsel — showed that on June 14, 2005, counsel asked the prosecutor for a plea offer soon after that meeting. On June 23, 2005, the prosecutor offered twenty years in prison because appellant had prior convictions for aggravated assault and robbery, because he had served ten years in prison on his prior sale of cocaine conviction, and because appellant qualified as a habitual felony offender (HFO).

On June 24, 2005, counsel wrote back pointing out that appellant did not qualify as an HFO because he was released from prison to a supervision program more than five years before the instant offense. § 775.084(l)(a), Fla. Stat. (2003). This legal determination later proved to be wrong, but in the email, the prosecutor agreed that appellant did not commit his offense within the five-year time frame and offered a twelve-year non-HFO sentence.

The next note on the case file reflects that on July 2, 2005, counsel spoke with appellant on the phone, and he demanded a speedy trial. The State’s written twelve-year plea offer was set to expire on July 6, 2005. Counsel did not have a specific recollection but was positive that she conveyed the offer in the July 2, 2005 phone meeting because she would not have demanded a speedy trial and was reluctant to try this case where the State had a videotape of appellant selling the crack cocaine to the undercover officer.

On July 26, 2005, counsel complied with appellant’s request and demanded a speedy trial. Counsel testified that, on July 28, 2005, she again met with appellant at the jail and made a note on the file to “talk to state again.” She also testified that she always works on getting a better plea offer up until trial and was sure that she conveyed the offer before demanding a speedy trial which was appellant’s desire in this case, not hers.

Some appellate decisions suggest that counsel’s testimony about a standard practice, where counsel lacks a specific recollection of the event, cannot be competent substantial evidence to support a trial court’s factual finding and to refute a post-conviction movant’s testimony to the contrary. Polite v. State, 990 So.2d 1242, 1244 (Fla. 3d DCA 2008); Labady v. State, 783 So.2d 275, 276 (Fla. 3d DCA 2001). This court has disagreed that an absolute rule applies whenever an attorney cannot specifically recall a matter relevant to a postconviction claim. Gusow v. State, 6 So.3d 699, 702 n. 4 (Fla. 4th DCA 2009) (disagreeing with this aspect of Polite and explaining that: “We believe that under these circumstances the trial court is entitled to disbelieve the defendant’s testimony”).

A court hearing a postconviction motion is not required to accept a movant’s self-serving testimony about a matter simply because trial counsel cannot specifically recall the transaction and testifies about a standard practice. The court should consider the totality of the circumstances and the credibility of the witnesses in making its determination.

The judge in this case did not believe appellant and found that counsel conveyed the plea offer. Counsel’s testimony is corroborated by the circumstantial evidence — including the timing of events, the notes on the case file, and the emails. See Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996) (holding that circumstantial evidence can meet the competent substantial evidence standard and that direct evidence is not required). The trial court’s factual finding that the offer was conveyed and rejected is supported by competent substantial evidence. We defer to the trial court’s superior vantage point in determining the credibility of the witnesses and in weighing the evidence.

Failure to Advise of the Correct Statutory Maximum at the Time of the Plea Offer

The testimony at the evidentiary hearing was undisputed that neither defense counsel, nor the prosecutor, was aware before trial that appellant qualified as an HFO. They were aware of the possibility, as was appellant, but had erroneously concluded before trial that he did not qualify. See § 775.084(l)(a)2.b., Fla. Stat. (2003) (providing that the HFO designation applies where the offense to be sentenced was committed within five years of release from a post-prison supervision program).

Appellant was not advised before trial that as an HFO he could be sentenced to life in prison for the first-degree felony charged in Count I. § 775.084(4)(a)l., Fla. Stat. (2003). The state filed a notice of intent to seek enhanced sentencing after trial. Counsel then researched the issue and learned that appellant qualified for the enhanced penalty. Nevertheless, because he initially faced a first-degree felony charge, appellant was aware, when he rejected the twelve-year plea offer, that he could receive up to thirty years in prison.

In the Reply Brief, defense counsel concedes that this court’s decision in Lester v. State, 15 So.3d 728 (Fla. 4th DCA 2009), supports affirmance. Pursuant to Lester, the correct remedy in this situation is not to grant a new trial or remand for renewed plea negotiations, as other courts have held, but to impose a sentence no greater than “the expected maximum sentence [appellant] would have received by proceeding to trial based upon [the] attorney’s advice.” Id. at 729. Here, appellant rejected the twelve-year plea offer and proceeded to trial knowing he could be sentenced to thirty years in prison which is the sentence he ultimately received. We must affirm because appellant cannot show prejudice under Lester.

We certify that this decision, and the decision in Lester, expressly conflict with Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000), and Revell v. State, 989 So.2d 751 (Fla. 2d DCA 2008), as to the proper remedy that applies when an attorney fails to correctly advise a defendant at the time of a plea offer regarding the statutory maximum sentence. See also Pennington v. State, 34 So.3d 151, 154-55 (Fla. 1st DCA 2010) (remanding for the trial court to determine, under a correct legal framework, whether a reasonable probability existed that defendant would have accepted the plea if he had known of the correct maximum penalty he faced).

Affirmed. Express conflict certified.

GROSS, C.J., STEVENSON and CONNER, JJ., concur.


author: SHEPHERD, J.

text:
    Elena CASINES, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D10-1448.
    District Court of Appeal of Florida, Third District.
    June 15, 2011.
    Jason T. Forman, Fort Lauderdale, for appellant.
    Richard A. Warren, Miami, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Elena Casines appeals from the trial court’s May 12, 2010, “Order Granting Defendant’s Motion for New Trial.” Because the order does not contain specific grounds, we relinquish jurisdiction to the trial court for sixty days for entry of an order specifying the grounds upon which the trial court relied to grant a new trial. See Fla. R. Civ. P. 1.530(f) (stating that if an order granting a new trial is appealed and does not state the specific grounds, “the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial”); Big Lots Stores, Inc. v. Diaz, 18 So.3d 1065 (Fla. 3d DCA 2008); State Farm Mut. Auto. Ins. Co. v. Brooks, 657 So.2d 17 (Fla. 3d DCA 1995); Daon Corp. v. Blankenstein, 444 So.2d 85 (Fla. 3d DCA 1984).


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Joseph CHIQUET, Appellee.
    No. 2D10-3420.
    District Court of Appeal of Florida, Second District.
    June 22, 2011.
    Rehearing Denied Aug. 30, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    N. Adam Tebrugge of Tebrugge Legal, Bradenton, and Mark Lipinski, Bradenton, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order granting Chiquet’s motion to suppress physical evidence seized pursuant to a search warrant executed on his home. Because we conclude that a certain fact omitted from the affidavit for search warrant was not material and would not have changed the probable cause determination, we reverse.

The State charged Chiquet with two counts of lewd and lascivious battery on a victim under sixteen, one count of displaying obscene material to a minor, sixteen counts of possession of child pornography, and five counts of promoting the sexual performance of a child. The charges stemmed from Chiquet’s sexual relationship with A.G., a teenage girl. After A.G.’s mother became aware of the relationship, A.G. and her mother went to the police to file a complaint. During her statement, A.G. informed police that Chi-quet had taken digital photographs of her while she was nude and that he stored the images on his silver Apple computer.

Based on A.G.’s statement to police, detectives prepared an affidavit for search warrant. In that affidavit, the detectives included the following sentences: “The victim further claims that the suspect took digital photos of her while in the nude. The victim further stated that the images are on the suspect’s computer.” Based on these particular statements, the search warrant authorized the seizure of, among other items, “[a]ny and all devices capable of storing images.”

A magistrate signed the search warrant, and upon execution, law enforcement located a computer in Chiquet’s home; it was not silver, and it was not an Apple computer. Rather, it was a Dell computer that was not plugged in or attached to a monitor. Police seized the Dell computer, and evidence of the charged offenses was discovered on it.

Chiquet moved to suppress the evidence found on the Dell computer on the basis that the search warrant was faulty. Specifically, Chiquet argued as follows:

The affidavit contains false material or deliberately omits facts relevant to the magistrate’s consideration.... [T]he computer described by the victim was a “large screened all in one computer, silver in color with an apple located on the lower front.” This information was apparently deliberately omitted from the affidavit ... used to support the issuance of the search warrant.

At the hearing on the motion, Detective Diaz testified that he and Detective Sellitto did indeed intentionally omit the description of the computer as a silver Apple computer because “we didn’t know if there w[as] one computer, two computers, how many cameras, phones. We didn’t know what digital or device [sic] that could capture the images. We didn’t know. So that’s why we left it open as to devices.”

In granting Chiquet’s motion to suppress, the trial judge, who was the same judge who signed the search warrant based on the affidavit, made a specific finding that the detectives did not omit the description of the computer with malicious intent. But he also determined that “[t]his fact constitutes a material omission as to the Dell computer because a substantial possibility exists that the search warrant would not have been granted as to ‘[a]ny and all devices capable of storing images,’ but would have been limited to the silver Apple computer.” We disagree.

With regard to facts omitted from an affidavit for search warrant, “omitted facts are only material if there is a substantial possibility that had the magistrate been aware of the omission he would not have found sufficient probable cause for issuance of a warrant.” State v. Schulze, 581 So.2d 610, 611 (Fla. 2d DCA 1991). Here, as presented to the magistrate, the affidavit merely read that Chi-quet stored digital images of the naked victim on “his computer” — singular. Yet, despite this reference to only one computer, the magistrate signed a search warrant for “[a]ny and all devices capable of storing images.” We conclude that if the magistrate was willing to allow the police to search for multiple storage devices based on the allegation that Chiquet stored images on only one computer, there is not a substantial possibility that describing that computer as a silver Apple computer would have resulted in a finding of insufficient probable cause to issue the warrant. As such, the omission cannot be said to have misled the magistrate and was not a material omission. See id.

We therefore reverse the order granting Chiquet’s motion to suppress and remand for further proceedings.

KHOUZAM and BLACK, JJ., Concur.


author: GERBER, J.

text:
    AMERICA’S YATE DE COSTA RICA, a Costa Rican corporation, Appellant, v. ARMCO MANUFACTURING, INC., a Florida corporation, Appellee.
    No. 4D10-547.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      James H. Perry, II and Brendan Philip of Perry & Neblett, P.A., Miami, for appellant.
    No appearance for appellee.
   GERBER, J.

The defendant appeals a final judgment for damages after a jury trial. The defendant alleges that the trial court erred in denying its motion for relief from an earlier order striking its pleadings. We conclude that the defendant met its burden of proving that its corporate representatives lacked notice of the events which led to the order striking its pleadings. Therefore, we reverse.

The plaintiff sued the defendant for conversion, fraud in the inducement, and violation of Florida’s Deceptive and Unfair Trade Practices Act. The defendant retained counsel and filed an answer generally denying the plaintiffs allegations. The defendant also filed a counterclaim for unjust enrichment.

On January 14, 2008, the defendant’s counsel moved to withdraw. Counsel’s certificate of service indicates that he mailed copies of his motion to the defendant at a Miami post office box address and to the defendant’s corporate representatives at an Annapolis, Maryland street address.

On January 23, 2008, the trial court entered an order granting the motion to withdraw. The order directed the defendant to retain new counsel within thirty days. The order further directed the plaintiff to send all future pleadings and correspondence to the defendant at its corporate representatives’ Annapolis address. The order did not mention the defendant’s Miami post office box address.

On January 28, 2008, the plaintiff mailed interrogatories to the defendant. When the defendant did not respond, the plaintiff filed an ex parte motion to compel. The court entered an order granting the motion and directing the defendant to answer the interrogatories within ten days. When the defendant did not do so, the plaintiff filed a motion for contempt. The court entered an order granting that motion and again directed the defendant to answer the interrogatories within ten days. The defendant did not do so. The plaintiff then mailed one of the defendant’s corporate representatives a notice to appear for the taking of his deposition. The corporate representative did not appear. The plaintiff then filed another motion for contempt. On May 2, 2008, the court entered an order granting that motion and striking the defendant’s pleadings. All of the foregoing notices, motions, and orders were mailed to the defendant at its corporate representatives’ Annapolis address only.

On May 16, 2008, the defendant, through new counsel, filed a motion for relief from the order striking its pleadings. The defendant brought its motion pursuant to Florida Rule of Civil Procedure 1.540(b) (2008), which provides that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order, or proceeding” due to, among other reasons, “excusable neglect.” In the motion, the defendant alleged it was not aware that it was being served with documents sent to the Annapolis address; it was never forwarded any mail from the Annapolis address; it did not have any contact with the Annapolis address when the documents were being sent there; and it only retained new counsel when months passed without hearing from its prior counsel. The defendant later supported these allegations with affidavits from its corporate representatives. Based on the foregoing, the defendant requested the court to reconsider the striking of its pleadings.

The plaintiff opposed the motion with the affidavit of the defendant’s prior counsel. In the affidavit, counsel stated that he obtained the Annapolis address from the business card of one of the defendant’s corporate representatives. He further stated that he used that address for all of his written communications with the defendant.

The court held an evidentiary hearing on the motion. The defendant’s corporate representatives testified that they lived in Costa Rica. They further testified that the Annapolis address was a May-to-October storefront for the company’s inflatable boat business; they did not provide their prior counsel with a business card showing the Annapolis address; they never asked their prior counsel to send correspondence to the Annapolis address; none of the mail sent to the Annapolis address was forwarded to them; and they advised their prior counsel to forward their company’s mail to the Miami post office box. They also testified that they did not have any notice of what was happening in the case until they hired new counsel in late April. In May, they went to the Annapolis address and found the papers piled there. They further testified that since discovering the papers, they had complied with the plaintiffs written discovery and had traveled from Costa Rica to appear for depositions in Florida. During cross-examination, the corporate representatives testified that the State of Maryland’s corporate records showed their company as being located at the Annapolis address. They also testified that they maintained Maryland driver’s licenses showing the Annapolis address as their address.

The court orally denied the defendant’s motion for relief as follows:

I agree with all of the law that has been provided on behalf of the [defendant]. It is the application in this particular case. In this case ... the [corporate representatives] know [sic] that they no longer had a lawyer, and I am going to accept they did not ... physically receive the papers. I will make that as a finding of fact, but there has to be some affirmative responsibility on the part of the litigant.
My observations are that all legal documents were sent to the [Annapolis] address before [prior counsel] withdrew. The [prior counsel’s] affidavit indicates the only address he had was the [Annapolis] address. Documents were sent afterwards to the very same [Annapolis] address.
The corporate records of Maryland indicate the [Annapolis] address.
The driver’s license of each of the [corporate representatives] indicates the [Annapolis] address.
Having reviewed the case law that was provided in the defendant's] memorandum, which I agree with, there has to be a deliberate act. In this case the deliberate act I am finding is the defendants] failure to provide an address of their choosing, because the plaintiff and the Court, in fact, had the only address that the defendants had provided to the system. There is no indication that the defendants provided any other information into the system.
... So putting it all together, I find that the [defendant] failed to meet a responsibility which I find was not a burdensome one; namely, just to even put in a notice of change of address, notice of a current address into the Court process .... In this case none of those things were done, so for those reasons respectfully the motion ... will be denied.

(emphasis added).

The case proceeded to a jury trial, during which the defendant’s pleadings remained stricken. The jury rendered a verdict for the plaintiff. The court thereafter entered a final judgment in favor of the plaintiff and against the defendant.

The defendant then filed this appeal, arguing that the court erred in denying its motion for relief from the earlier order striking its pleadings because it proved excusable neglect. We review the order denying the defendant’s motion for relief for an abuse of discretion. See Taylor v. Vitetta, 8 So.3d 1216, 1217 (Fla. 4th DCA 2009) (“This court reviews an order denying a motion to vacate pursuant to an abuse of discretion standard.”).

We agree with the defendant that it met its burden of proving excusable neglect. “Excusable neglect requires a showing of both a legal excuse for failing to comply with the Florida Rules of Civil Procedure and a meritorious defense.” DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998). Here, the issue is whether the defendant showed a legal excuse. We conclude that the defendant showed the legal excuse of lack of notice. Contrary to the defendant’s prior counsel’s affidavit upon which the trial court relied in its findings of fact, the defendant’s corporate representatives obviously provided their prior counsel with their Miami post office box address because counsel included that address in the certificate of service in his motion to withdraw. However, the defendant’s prior counsel and the court failed to include the Miami post office box address in the service list in the order granting the motion to withdraw. From that point forward, the plaintiff and the court continued to exclude the Miami post office box address from the service list on all further notices, motions, and orders.

The circuit court, after reviewing the corporate representatives’ affidavits and testimony, recognized that fact and found that “they did not ... physically receive the papers.” Yet the court then found that the defendant’s corporate representatives deliberately “fail[ed] to provide an address of their choosing” to the plaintiff and the court. That logic is flawed. If the defendant’s corporate representatives did not receive the notices, motions, and orders, then they could not have known that they needed to provide the correct address to the plaintiff and the court. Thus, reversal is required. See, e.g., Taylor v. Bowles, 570 So.2d 1093, 1093 (Fla. 4th DCA 1990) (reversing the denial of the defendant’s motion for relief from final judgment where, after counsel’s withdrawal, mail regarding the case was sent to the defendant’s old office address and he never received notice of the pending trial).

Even if the defendant had not shown excusable neglect, the court still erred in denying the defendant’s motion for relief from the earlier order striking the defendant’s pleadings. “The striking of pleadings ... is ‘the most severe of penalties and must be employed only in extreme circumstances.’ ” Cook v. Custom Marine Distrib., Inc., 29 So.3d 462, 462 (Fla. 4th DCA 2010) (citations omitted). “[I]f a sanction less severe than the striking of a party’s pleadings is ‘a viable alternative,’ then the trial court should utilize such [an alternative].” Id. at 463 (citations omitted). Here, by the time that the court conducted the evidentiary hearing on the defendant’s motion for relief, the defendant had complied with the plaintiffs written discovery and its corporate representatives had traveled from Costa Rica to appear for depositions in Florida. As a result, the defendant cured any substantive prejudice which the plaintiff experienced in preparing for trial. The only remaining prejudice which the plaintiff incurred was the cost of pursuing its motions to compel and for contempt and seeking to defeat the defendant’s motion for relief. A more viable alternative at the time of the evidentiary hearing would have been to enter an order requiring the defendant to pay those costs as a final condition of reinstating the pleadings.

Based on the foregoing, we reverse and remand for the circuit court to vacate the final judgment, reinstate the defendant’s pleadings, and reset the case for jury trial.

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.


text:
    Ignazio ABBATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3078.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant appeals the circuit court’s denial of his motion to withdraw plea. The defendant argues that the court should have granted the motion based upon prior counsel’s misadvice that convictions for second-degree arson and arson resulting in injury to another did not violate the double jeopardy clause. We agree with the defendant and reverse.

The state alleged that the defendant hired two men to set fire to his restaurant so he could collect money from his insurance company. The men suffered permanent disfigurement when they set the fire. The state charged the defendant with second-degree arson under section 806.01(2), Florida Statutes (2006), which provides:

Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or herself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree ....

The state also charged the defendant with arson resulting in injury to another under section 806.031(2), Florida Statutes (2006), which provides:

A person who perpetrates any arson that results in great bodily harm, permanent disability, or permanent disfigurement to a firefighter or any other person, regardless of intent or lack of intent to cause such harm, is guilty of a felony of the second degree....

The state also charged the defendant with two other offenses not relevant to this opinion.

The defendant entered an open plea to all four offenses. During the plea colloquy, neither the defendant’s counsel nor the court discussed double jeopardy. The court sentenced the defendant to thirty months in prison running concurrently on each offense to be followed by five years of probation. A violation of probation could subject the defendant to fifteen years in prison on each offense with credit for any time served.

After sentencing, the defendant filed a motion to withdraw his plea. According to the motion, the defendant’s new counsel advised him that convictions for both arson and arson resulting in injury to another violate double jeopardy. The defendant argued that if he had known the convictions violated double jeopardy, he would not have pled guilty.

The court held an evidentiary hearing on the motion. The defendant’s prior counsel testified that they researched whether convictions for both arson and arson resulting in injury to another violate double jeopardy. They could not find any case on that issue. However, they concluded that convictions on both offenses would not violate double jeopardy pursuant to section 806.081(3), Florida Statutes (2006), which provides:

Upon conviction and adjudication of guilt [for arson resulting in injury to another], a person may be sentenced separately, pursuant to s. 775.021(4), for any [arson resulting in injury to another] and for any arson committed during the same criminal episode....

The defendant’s prior counsel testified that they discussed that conclusion with the defendant before he pled guilty to the offenses.

The circuit court denied the motion to withdraw plea. The defendant then filed this appeal. We review the circuit court’s denial of the motion to withdraw plea for an abuse of discretion. Thompson v. State, 50 So.3d 1208, 1210 (Fla. 4th DCA 2010) (citation omitted).

We conclude that the circuit court erred in denying the defendant’s motion to withdraw plea. As our supreme court stated in Novaton v. State, 634 So.2d 607 (Fla.1994):

The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence. There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Id. at 609 (citation omitted).

Here, the defendant has shown all three elements to satisfy the exception. First, although the terms of the sentence originated from plea negotiations, the ultimate plea was a general open plea as distinguished from a plea bargain. Second, a double jeopardy violation is apparent from the record. Section 775.021(4), Florida Statutes (2006) provides:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Second-degree arson is a lesser offense of arson resulting in injury to another because the statutory elements of second-degree arson as provided in section 806.01(2) are subsumed by the greater offense of arson resulting in injury to another as provided in section 806.031(2). It is irrelevant that both offenses are second-degree felonies which carry the same penalties. See Haliburton v. State, 7 So.3d 601, 604 (Fla. 4th DCA 2009) (“ ‘[L]esser included offenses are determined based on the elements of the offenses, not on the penalties attached.’ ”) (citation omitted). Thus, convictions for both offenses violate double jeopardy.

Third, there is nothing in the record to indicate a waiver of the double jeopardy violation. Instead, the record indicates that prior counsel was ineffective in advising the defendant that convictions for both offenses do not violate double jeopardy. See Keller v. State, 846 So.2d 631, 633 (Fla. 4th DCA 2003) (trial court erred in summarily denying defendant’s motion for postconviction relief where defendant claimed that his counsel was ineffective for failing to advise him that his convictions violated double jeopardy).

Because the defendant has shown all three elements to satisfy the Novaton exception, he has proven that his plea was involuntary and that a manifest injustice has occurred. See Nelfrard v. State, 34 So.3d 221, 222 (Fla. 4th DCA 2010) (“Where a defendant seeks to withdraw a plea after sentencing, the defendant must prove that a manifest injustice has occurred .... Examples of situations where withdrawal is necessary to correct a manifest injustice include cases where the defendant proves that he received ineffective assistance of counsel or where the defendant’s plea was involuntary.”). Manifest injustice also exists here based on the possible sentences if the defendant violates his probation.

Because all four offenses were considered together as part of the plea and sentence, we reverse and remand for the circuit court to vacate the defendant’s conviction and sentence on all four offenses and permit the defendant to withdraw his plea as to all-four offenses. The state then may resume its.prosecution of the defendant as to all four offenses.

Reversed and remanded.

STEVENSON and TAYLOR, JJ., concur.

      . See Amend. V, U.S. Const. ("No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb....”); Art. I, § 9, Fla. Const. ("No person shall be ... twice put in jeopardy for the same offense. ... ”).

      . We conclude that the other arguments which the defendant raises in this appeal in support of his motion to withdraw plea are without merit, although those arguments now are moot because of our reasoning addressed above.


text:
    Tonny PRESIDENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2776.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Tonny President, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tonny President appeals a trial court order entered after remand, pursuant to President v. State, 981 So.2d 673 (Fla. 4th DCA 2008). In that case, we directed the trial court to either conduct an evidentiary hearing or attach portions of the record conclusively establishing that appellant was not entitled to relief in a post-conviction sentencing challenge. In his post-conviction challenge appellant claimed that the trial court had erroneously imposed sixty-nine points for convictions which were later reversed and remanded for new trial, and ultimately nolle prossed, and that the trial court would not have imposed the same sentence if the scoresheet were corrected. See State v. Anderson, 905 So.2d 111 (Fla.2005).

On remand, the trial court did not conduct an evidentiary hearing, but rather summarily denied relief once again. The trial judge acknowledged that he was not the judge who had actually sentenced appellant almost seven years earlier, but noted that there was no rule barring him from concluding that the same sentence would have been imposed with a corrected score-sheet. The judge then pointed to the record, which showed that the sentencing judge imposed the maximum penalty of life in prison immediately after the verdict finding appellant guilty of robbery with a firearm. He concluded that this demonstrated that the judge would have imposed the same sentence even with a correct scoresheet, citing by contrast Graham v. State, 920 So.2d 1262 (Fla. 4th DCA 2006).

In Graham, following the defendant’s conviction for possession of cocaine with intent to sell, the trial court sentenced the defendant to 59.925 months in prison, the lowest permissible prison sentence, although the maximum sentence for possession of cocaine with intent to sell, a second degree felony, is fifteen years in prison. We concluded that the record did not conclusively show that the same sentence would have been imposed under a correctly calculated scoresheet. The panel noted that the trial court had imposed the lowest permissible sentence calculated under the Criminal Punishment Code and that it was “not inclined to sentence Graham to the statutory maximum, and as a result, we cannot conclude that the trial court would have imposed the same sentence using a corrected scoresheet.” Id. at 1264. Graham should not be interpreted as holding that whenever a maximum sentence is imposed after an erroneous scoresheet is filed, this establishes that the sentencing court would have imposed the same sentence with a corrected scoresheet.

Here, the trial judge ruled that the sentencing judge’s decision to order President’s life sentence to run consecutively to any other sentences he was then serving, and the fact that the sentencing judge made no mention or reference to the guidelines or the scoresheet at sentencing, provided further support for concluding that the sentencing judge would have imposed the same sentence even with a corrected scoresheet. However, the trial judge in this case did not attach any portions of the sentencing transcript to support his ruling, as they were not included in the state’s response attached to the judge’s order. However, even with those attachments, the record would not conclusively demonstrate that appellant would have received the same sentence using a corrected scoresheet.

Because we have already allowed the trial court an opportunity to attach portions of the record to refute appellant’s claim, we reverse and remand for either an evidentiary hearing or resentencing.

Reversed and Remanded with directions.

TAYLOR, HAZOURI and GERBER, JJ., concur.


text:
    Mark Ernest CISSEL, Appellant, v. Jana Blackwell CISSEL, Appellee.
    Nos. 4D09-3029, 4D10-1324.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant.
    June Galkoski Hoffman and Greg A. Lewen of Fowler White Burnett, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

This consolidated appeal stems from a final judgment dissolving the twenty-two-year marriage of Mark and Jana Cissel and requiring the husband to pay $3,000 per month in permanent periodic alimony, $1,652.92 per month in child support, his proportionate share of the children’s private school tuition, and sixty percent of the wife’s attorney’s fees and costs. The husband seeks reversal, challenging the trial court’s findings regarding his income; the wife has cross-appealed, insisting the alimony award was insufficient. Because we find the trial court’s findings concerning the husband’s income cannot be sustained, we reverse and remand.

The trial court’s finding that the husband had gross monthly earnings of $18,109 was based upon the husband’s average earnings over the fourteen months preceding the hearing. In this case, we find no error in the trial court’s resort to such average. We agree with the husband, though, that the $18,109 gross income figure was not the proper basis for any support awards. Alimony awards must be predicated upon the income that is available to the parties, i.e., the parties’ net monthly incomes. See § 61.08(2)(i), Fla. Stat. (requiring trial court to consider “[a]ll sources of income available to either party”) (emphasis added); Zold v. Zold, 911 So.2d 1222, 1229 (Fla.2005); Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). This is particularly troublesome as to the husband’s income since the trial court failed to deduct the husband’s undisputed business expenses, averaging in excess of $2,000 per month. See, e.g., Valentine v. Van Sickle, 42 So.3d 267, 273 (Fla. 2d DCA 2010) (holding husband’s per diem reimbursement for business expenses could not be included in monthly income for purposes of calculating alimony where funds were used to pay for husband’s business travel and did not reduce his personal living expenses). Moreover, in determining the husband’s income, the trial court erroneously treated the longevity bonus and restricted stock amounts reflected in the January-February 2009 paystubs as recurring earnings. For these reasons, we find that the trial court’s findings regarding the parties’ income cannot be sustained.

Further, in awarding alimony, the trial court must consider, and make factual findings concerning, the factors set forth in section 61.08, Florida Statutes (2010). See § 61.08(1), Fla. Stat. (“In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.”); Lift v. Lift, 1 So.3d 259, 261 (Fla. 4th DCA 2009) (“A trial court must support its alimony decision by including findings of fact in the final judgment.”). Here, the trial court’s findings were limited to the length of the marriage and the fact that the standard of living during the marriage consumed approximately $20,000 per month. And, in this case, the marital standard of living was of little value in determining an appropriate alimony award as the undisputed evidence was that the marital lifestyle cost more than the parties’ regular earnings and was funded, in part, by a sign-on bonus that had been spent by the time of the proceedings. See Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005) (recognizing marital standard of living is not useful guide in awarding alimony where parties lived beyond their means).

Accordingly, we reverse those provisions of the final judgment addressing alimony, child support, private school tuition, temporary support, and attorney’s fees. The case is remanded with directions that the trial court reconsider these issues after revisiting the matter of the parties’ net incomes, particularly the husband’s, consistent with this opinion.

Affirmed in part; Reversed in Part; and Remanded.

TAYLOR and LEVINE, JJ., concur.

      . This includes the provision requiring the husband to procure life insurance to secure the alimony and child support awards as such a provision must be supported by findings of need and ability to pay. See Eaton v. Eaton, 16 So.3d 289, 290 (Fla. 4th DCA 2009); Lopez v. Lopez, 780 So.2d 164, 165 (Fla. 2d DCA 2001).


text:
    James F. ROBINSON, Appellant, v. Debra L. ROBINSON, Appellee.
    No. 4D09-4808.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Esther A. Zaretsky of the Law Office of Esther A. Zaretsky, West Palm Beach, for appellant.
    Ralph T. White of Schütz & White, LLP, West Palm Beach, for appellee.
   PER CURIAM.

James F. Robinson, former husband, timely appeals a final judgment of dissolution of marriage. While Robinson challenges the judgment on a number of grounds, we find merit in only his challenge to the trial court’s award of attorney’s fees to the former wife and write solely to address this issue.

The touchstone for the award of attorney’s fees is need and ability to pay. See § 61.16, Fla. Stat.; Von Baillou v. Von Baillou, 959 So.2d 821, 823 (Fla. 4th DCA 2007). While we leave undisturbed the trial court’s determination that former husband had the ability to pay former wife’s fees, the record before this court fails to demonstrate that former wife had the “need” for the $13,683.42 fee award.

The evidence at the hearing established that former wife had incurred $13,683.42 in fees and costs for time and expenditures prior to the hearing and another $6,627.50 for the one-day hearing — a total of $20,310.92. It was undisputed that, during the pendency of the proceedings, former wife’s attorneys were paid $15,000 from the parties’ joint account. The final judgment did not address this $15,000 payment. It is clear, however, that if the total amount former wife owed her attorneys was $20,310.92 and her attorneys had already been paid $15,000, the most former wife would “need” is $5,310.92. We thus reverse the $13,683.42 fee award in favor of former wife and remand for further proceedings on this issue. The final judgment is affirmed in all other respects.

Affirmed in Part; Reversed in Part; and Remanded.

STEVENSON, TAYLOR and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Rick M. CURTIS, Appellant, v. CITY OF WEST PALM BEACH, a municipality of the State of Florida, Appellee.
    No. 4D10-876.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Frank J. McKeown, Jr., Law Offices of Frank J. McKeown, Jr., West Palm Beach, for appellant.

      Claudia M. McKenna and Lisa M. Fedy-nyshyn-Conforti, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Rick M. Curtis appeals the summary final judgment entered against him and in favor of the City of West Palm Beach on Curtis’ claim brought under the Firefighter’s Bill of Rights (FBR), section 112.81, Florida Statutes (2007), et. seq. We affirm the summary judgment because the trial court properly concluded that Curtis’ claim for damages was not an available remedy under the FBR.

Curtis brought a claim under the FBR, which he subsequently amended. In his amended complaint, Curtis alleged that the City failed to advise him of his rights prior to imposing disciplinary action and that the failure to do so violated the FBR. The remedy sought for these alleged violations was various forms of monetary damages. After proceeding through the pleading stage, the City filed a motion to dismiss or, alternatively, a motion for summary judgment. In its motion, the City argued that the claims had been previously litigated in a separate lawsuit and, therefore, the claims raised in the amended complaint were barred by collateral estoppel, estop-pel by judgment, or res judicata. After conducting a hearing on the City’s motion, the trial court concluded that damages were not available as a remedy under the FBR, and that the undisputed evidence established that Curtis had never been subject to an “interrogation,” as that term is defined in section 112.81(6). The trial court explicitly stated that the grounds raised by the City did not form the basis of the court’s ruling.

We need only address whether the trial court was correct in concluding that the FBR does not create a cause of action for damages. “[R]emedies sought in an action brought under a statute which creates a statutory right or duty are generally limited to those specified within the statute.” Dascott v. Palm Beach County, 988 So.2d 47, 48 (Fla. 4th DCA 2008). “Whether a violation of a statute can serve as the basis for a private cause of action is a question of legislative intent.” Aramark TJnif. & Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla.2004); see also United Auto. Ins. Co. v. A 1st Choice Healthcare Sys., 21 So.3d 124, 128 (Fla. 3d DCA 2009) (“It is axiomatic that whether a private right of action exists for a violation of a statute is a matter of legislative intent.”). “[A] court may imply a private cause of action only where the statutory scheme and statute itself indicate a legislative purpose to do so.” Merkle v. Health Options, Inc., 940 So.2d 1190, 1197 (Fla. 4th DCA 2006).

When conducting a statutory analysis, a court attempts to discern the legislative intent expressed in the statute. Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 66 (Fla. 4th DCA 2011) (citing Knowles v. Beverly Enters.-Fla., Inc., 898 So.2d 1, 5 (Fla.2004)). “To discern legislative intent, a court first looks to the statute’s plain language. If a statute is clear and unambiguous, ‘there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Id. at 66 (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)) (citations omitted).

Under the FBR,
[i]f an agency employing firefighters fails to comply with the requirements of this part, a firefighter employed by such agency who is personally injured by such failure to comply may apply directly to the circuit court ... for an injunction to restrain and enjoin such violation of the provisions of this part and to complete the performance of the duties imposed by this part.

§ 112.83, Fla. Stat. (2007) (emphasis added). A reading of the plain language of this provision makes it abundantly clear that injunctive relief is the only available relief under this section for the violations that serve as the basis of the complaint.

Curtis responds that this interpretation does not take into account section 112.84, Florida Statutes (2007). Section 112.84(1), entitled “Rights of firefighters nonexclusive,” provides:

The rights of firefighters as set forth in this part shall not be construed to diminish the rights and privileges of firefighters that are guaranteed to all citizens by the Constitution and laws of the United States and of this state or limit the granting of broader rights by other law, ordinance, or rule. These rights include the right to bring suit against any individual, group of persons, association, organization, or corporation for damages, either monetary or otherwise, suffered during the performance of the firefighter’s official duties or for abridgment of the firefighter’s rights, civil or otherwise, arising out of the performance of his or her official duties.

We read this provision to clarify that nothing in the FBR should be read to limit any other cause of action available to firefighters through some other statute or under common law. Had the legislature intended to allow claims seeking damages for violations of the FBR, we presume that it knows how to do so. Accordingly, the trial court correctly concluded that the FBR does not create a cause of action for damages and, for that reason, the amended complaint failed to set forth a cause of action.

Although neither party raised the grounds upon which the trial court based its decision, we nonetheless affirm under the tipsy coachman doctrine. Dade Cnty. Sell. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999) (“[A]n appellee, in arguing for the affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below.”); Arthur v. Milstein, 949 So.2d 1163, 1166 (Fla. 4th DCA 2007).

Affirmed.

GROSS, C.J., and POLEN, J., concur.

      . The original complaint sought only injunc-tive relief. In his amended complaint, Curtis dropped his claim for injunctive relief and sought only monetary damages.

      . Because we have concluded that the trial court was correct on this issue, we need not address the propriety of the trial court’s ruling that established that Curtis had never been subject to an "interrogation,” as that term is defined in section 112.81(6).


author: PEGG, ROBERT L., Associate Judge.

text:
    Stephanie LYNN n/k/a Stephanie Szopa, Appellant, v. Richard SAKHAROFF, Appellee.
    No. 4D10-1789.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Andrew C. Rose of Rose & Rose, P.A., Boca Raton, for appellant.
    Reid Moore, Jr., Palm Beach, for appel-lee.
   PEGG, ROBERT L., Associate Judge.

Appellant Stephanie Lynn appeals from a final judgment in favor of appellee Richard Sakharoff after a non-jury trial on damages.

Appellee filed suit against the City of Boca Raton, two Boca Raton police officers and appellant in 2005. Appellee sought damages for false arrest against the City of Boca Raton and the police officers, and for malicious prosecution against appellant. The complaint demanded a trial by jury.

Appellant did not answer the complaint and was eventually defaulted. Appellee settled with the City and the police officers. Appellee sent notice to appellant that he was seeking a non-jury trial to resolve the issue of damages. She failed to appear at the trial and a judgment was entered against her. This timely appeal follows.

Appellant argues the entry of a default does not deprive a defendant of having damages decided by a jury if one was demanded in the complaint, absent a waiver. It is well settled that the entry of a default against a defendant does not deprive such defendant of the right to a hearing on unliquidated damages. Matejka v. Dulaney, 40 So.3d 865, 866 (Fla. 4th DCA 2010). When a jury trial has been demanded by the plaintiff, unless the defendant waives such right, the defendant is entitled to a jury trial on the issue of unliquidated damages. Shasho v. Euro Motor Sport, Inc., 979 So.2d 343, 345-46 (Fla. 4th DCA 2008).

A demand for trial by jury may not be withdrawn without the consent of the parties. See Fla. R. Civ. P. 1.430(d). A party’s consent to a withdrawal of the demand for a jury trial “must be manifested by affirmative action.” Curbelo v. Ullman, 571 So.2d 448, 444 (Fla.1990). The mere failure of a party to appear for, or participate in, the non-jury trial is insufficient to constitute a waiver. Hornblower v. Cobb, 932 So.2d 402, 407-08 (Fla. 2d DCA 2006). The fact that the non-appearing party was served with notice of the non-jury proceedings, and failed to respond or participate, is insufficient. Barge v. Simeton,, 460 So.2d 939, 940 (Fla. 4th DCA 1984).

There is no evidence in the record that appellant waived her right to a jury trial. Accordingly, we reverse and remand for a jury trial on unliquidated damages. Our opinion here today makes the second issue on appeal, regarding service of process, unnecessary to address.

Reversed and Remanded.

TAYLOR and GERBER, JJ., concur.