author: LAWSON, J. TORPY, J., PER CURIAM. TORPY, J.,

text:
    STATE of Florida, Appellant, v. Gregory G. GEISS, Appellee.
    No. 5D10-3292.
    District Court of Appeal of Florida, Fifth District.
    May 27, 2011.
    Order Denying Rehearing and Certifying Question July 22, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    Angela Meriah Park and Ernest L. Chang of Law Office of Ernest L. Chang, P.A., Melbourne, for Appellee.
   LAWSON, J.

The State appeals an order suppressing blood test results in a felony DUI case. After the defendant, Gregory Geiss, refused a breath test, police obtained a search warrant to draw a sample of his blood for testing. The trial court suppressed the blood results, concluding that obtaining a blood sample by search warrant violated: (1) Geiss’s constitutional right to privacy, (2) the implied consent statute, and (3) the search warrant statute. We disagree with the first two conclusions but agree that the warrant should not have been issued under Florida’s search warrant statute. However, we also find that the test results should not have been suppressed given law enforcement’s good faith reliance on a judge’s legal determination that the search was legally authorized. U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Accordingly, we reverse the suppression order and remand for further proceedings.

Underlying Facts and Standard of Review

On September 5, 2009, Geiss was stopped for failing to maintain a single lane. He refused a request to perform field sobriety exercises. After being arrested for DUI and informed of Florida’s implied consent law, he also refused to take a breath test.

Police then obtained a search warrant to take a sample of Geiss’s blood for testing. The affidavit sought authority to take Geiss to the hospital “for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples....” It further alleged that “[s]aid property was used to commit the offense [of DUI] ... a violation of section 316.193(l)(a), Florida State Statutes, Driving Under the Influence 2nd offense.” The affidavit described Geiss’s prior history as follows:

A computer check of Geiss’s license status revealed four suspensions dating from 2006, including a 5-year revocation from 2008 for a DUI conviction with a BAC of [.]249. The computer check also showed Geiss had 1 prior DUI conviction from 2008 and a DUI Personal injury arrest from 2005 with a conviction of Leaving the Scene and Hit and Run Property Damage.

The affidavit alleged the pertinent facts of the arrest and concluded, “THEREFORE, your undersigned affiant states he has probable cause to believe that the blood samples being sought contain Alcohol or Controlled Substances and is property concealed in the body of the driver, Gregory G. Geiss, causing impairment, in violation of sections 316.193(1)(a) or 316.193(1)(b), Florida State Statutes, DUI 2nd.”

A county judge issued the search warrant, noting that police were requesting blood samples “for the purpose of obtaining property that has been used as a means to commit the crime of Driving Under the Influence.” Based on the warrant, police obtained a blood sample from Geiss. He was conscious throughout the entire process. There was no accident, injury or death involved in the traffic incident.

Geiss was later charged by information in circuit court with felony DUI based on two prior DUI convictions in 2005 and 2008, and with driving while his license was suspended. He filed a motion to suppress the blood evidence, asserting that it was illegally seized in violation of his federal and state constitutional rights to privacy and against unreasonable search and seizure, as well as Florida’s implied consent law. Both parties filed memoranda of law regarding the issues raised. After hearing arguments on the matter, the court suppressed the blood results.

In a lengthy written order, the court concluded that obtaining Geiss’s blood by search warrant violated his constitutional right to privacy, the implied consent statute, and the search warrant statute. The State timely appealed. As there are no facts in dispute, we review the trial court’s application of the law to the facts de novo. State v. Quinn, 41 So.3d 1011, 1013 (Fla. 5th DCA 2010).

Right to Privacy Issue

The trial court erred in concluding that the search warrant violated Geiss’s state constitutional right to privacy as expressed in article I, section 23 of the Florida Constitution. In pertinent part, article 1, section 23 provides that: “Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.” (Emphasis added). In other words, this provision cannot be interpreted without reference to other provisions in the Florida Constitution addressing governmental intrusion into one’s private life.

Significantly, article 1, section 12 of the Florida Constitution requires that the state constitutional right against unreasonable searches and seizures “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Because article 1, section 12 expressly authorizes governmental searches and seizures to the extent found to be reasonable under the Fourth Amendment by the United States Supreme Court, the “except as otherwise provided herein” language of article 1, section 23 must be read as authorizing governmental intrusion into one’s private life to the same measure. See L.S. v. State, 805 So.2d 1004, 1008 (Fla. 1st DCA 2001) (“Article I, section 23, does not modify the applicability of Article I, section 12, so as to provide more protection than that provided under the Fourth Amendment ....”) (citing State v. Hume, 512 So.2d 185, 188 (Fla.1987)). Thus, if the search warrant was valid under the Fourth Amendment, it cannot be barred by article I, section 23.

In Sehmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that obtaining blood samples for testing is a search under the Fourth Amendment, and is permissible if there is probable cause to believe the person was driving while intoxicated and the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures. The court recognized that search warrants are ordinarily required, but held that the rapid diminution of blood alcohol content over time creates an exigent circumstance exception to the warrant requirement. Id. at 770-71, 86 S.Ct. 1826; see also State v. Bender, 382 So.2d 697, 698 (Fla.1980) (“There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established.”); State v. Mitchell, 245 So.2d 618 (Fla.1971) (recognizing Sehmerber as the law of the land), receded from on other grounds in Brackin v. Boles, 452 So.2d 540 (Fla.1984); State v. McInnis, 581 So.2d 1370, 1373 (Fla. 5th DCA 1991) (noting no Fourth Amendment right not to have blood drawn for testing); State v. Hilton, 498 So.2d 698, 699 (Fla. 5th DCA 1986) (same); State v. Williams, 417 So.2d 755, 756 (Fla. 5th DCA 1982) (same). Because police had probable cause to believe that Geiss was driving while intoxicated (a fact not contested on appeal), the blood draw did not run afoul of the Fourth Amendment, and therefore did not violate Geiss’s right under article 1, section 23 of the Florida Constitution.

Implied Consent Law

The trial court also erred in finding that the search in this case violated Florida’s implied consent statute, section 316.1932, Florida Statutes (2009). This is because the search in this case was conducted pursuant to a warrant, and the implied consent law deals only with war-rantless searches.

Regarding blood draws, section 316.1932(l)(c) states that any person operating a motor vehicle in Florida is deemed to have given his or her consent to an approved blood draw for testing “if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages ... and the person appears for treatment at a hospital, clinic or other medical facility and the administration of a breath test is impractical or impossible.” § 316.1932(l)(c), Fla. Stat. (2009). A person’s refusal to submit to a blood test under this provision is admissible as evidence in court and results in suspension of the driver’s license. Id. The trial court concluded that the instant blood draw was not permissible under this section because Geiss did not appear for treatment at a hospital and there was no showing that a breath test was impractical or impossible.

Florida cases have held that the implied consent statute imposes greater restrictions on obtaining blood samples without a warrant than federal and state constitutional search and seizure protections. See Sambrine v. State, 386 So.2d 546 (Fla. 1980) (holding that blood results obtained after defendant affirmatively refused request for blood violated implied consent statute irrespective of Schmerber); State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982) (noting holding in Sambrine that implied consent law “goes beyond” Fourth Amendment protection). The court in Sambrine took a broad view of the implied consent statute, holding that the “plain statutory language and obvious legislative intent” of former section 322.261 led to the “inescapable conclusion that a person is given the right to refuse testing.” Sambrine, 386 So.2d at 548.

However, Florida’s implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so. For example, the implied consent statutes in some states expressly provide that if a person refuses to submit to a test, “none shall be given.” See, e.g., State v. DiStefano, 764 A.2d 1156 (R.I.2000) (interpreting Rhode Island implied consent statute to prohibit police from obtaining blood with search warrant after suspect refuses test); State v. Berry, 121 N.H. 324, 428 A.2d 1250, 1251 (1981) (rejecting argument that legislature could not have intended implied consent law to prohibit police from obtaining blood pursuant to a search warrant based on “then none shall be given” language in statute); but see State v. Smith, 134 S.W.3d 35, 40 (Mo.Ct.App.2003) (holding that “then none shall be given” clause in implied consent statute was a passive command that applied to police officers acting without a warrant; it did not prohibit courts from issuing search warrants for blood). No such language is found in Florida’s implied consent statute. And, because the statute has no such language, it is not our place to read into the statute a concept or words that the legislature itself did not include. See, e.g., Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla.1963) (explaining that courts should only “add words to a statute” that have “obviously been omitted” and otherwise “cannot and should not” do so).

Another basic rule of statutory construction guides our analysis. As stated in Woodham v. Blue Cross & Blue Shield, Inc., 829 So.2d 891, 898 (Fla.2002): “ ‘[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). By reading the implied consent statute as dealing only with the circum stances addressed by that statute — where the state seeks blood evidence in the absence of a warrant — both statutes are given “full effect.”

We also note that Florida’s appellate courts have upheld the admissibility of blood test results obtained independently of the implied consent statute in other contexts. For example, blood test results obtained by actual consent, independent of the implied consent statute, are admissible. Robertson v. State, 604 So.2d 783, 787 n. 1 (Fla.1992); State v. Murray, 51 So.3d 593 (Fla. 5th DCA 2011); State v. Young, 483 So.2d 31 (Fla. 5th DCA 1986); Pardo v. State, 429 So.2d 1313, 1315 (Fla. 5th DCA 1983). Our supreme court in Robertson also held that test results from blood withdrawn for medical purposes, independent of the implied consent statute, are admissible in a criminal trial. Given that, after deciding Sambrine, our supreme court held that the implied consent statute does not bar the admission of blood test results obtained independently from the statute in two other contexts, we do not see why the court would view results obtained by warrant differently.

In summary, because the legislature did not expressly prohibit seeking a search warrant to obtain blood upon a suspect’s refusal; because we should not add that language to the implied consent law ourselves; because we should attempt to give effect to both the implied consent and search warrant statute; and, because courts have upheld the use of blood test results obtained independently of the implied consent law in other contexts, we hold that police may obtain blood via search warrant, when authorized to do so by the search warrant statute, independent from the implied consent statute.

Search Warrant Statute

The trial court also found that the blood draw was not authorized by the warrant statute, section 933.02, Florida Statutes, because blood is not “property” used as a “means to commit” a crime. In addressing this issue, we should first clarify that although this case was ultimately filed as a felony case based upon Geiss’s prior DUI record, the affidavit for the search warrant did not set forth Geiss’s complete record, and only averred that Geiss possessed one prior DUI conviction. So, the affidavit alleged probable cause to believe that Geiss had violated the misdemeanor DUI statute. This is significant because section 933.02, Florida Statutes, only allows the state to secure a warrant to seize “property ... used as a means to commit” a misdemeanor. § 933.02(2)(a), Fla. Stat. (2010). By contrast, the statute also authorizes the state to secure a warrant for “property [that] constitutes evidence relevant to proving that a felony has been committed.” § 933.02(3), Fla. Stat. (2010); see also, Bordo, Inc. v. State, 627 So.2d 561, 562-63 (Fla. 4th DCA 1993) (“Thus, property used to commit any crime— whether felony or misdemeanor — may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony.”). Because the affidavit below only alleged facts supporting probable cause for a misdemeanor DUI, the original issuing magistrate and the trial court reviewing the warrant in the case below properly considered only whether blood constituted “property ... used as a means to commit” the crime of DUI in this case. See, e.g., Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005) (limiting review to four corners of search warrant to determine whether sufficient probable cause existed). We agree with the trial court that it was not.

First, Geiss argues that blood is not “property” within the meaning of the statute. We reject this argument, and agree with the analysis of County Judge David E. Silverman (the same judge who signed the warrant in the instant case), who reasoned as follows in an order published in Florida Law Weekly Supplement:

The statute uses the word “property,” a broad and flexible term that is not defined in the statute. It is a term that should properly be construed in the context of the statute’s purpose of identifying items that are the proper subject of a search warrant. In that sense, “property” does not exclude those substances that are naturally produced by the human body. Human blood, whether it is being stored for later transfusion in a hospital refrigerator, being donated to a blood bank or flowing through the veins of an arrestee, is something tangible over which a person or entity may exercise ownership, which has value and which may be sold or transferred for consideration like other material objects. In those important respects, blood is indistinguishable from other fluid materials such as vodka, insulin or gasoline and like each of them may be seized, secured and subjected to chemical and other scientific analysis. The fact that it would require an invasive procedure to extract fluids from the human body does not alter the form or composition of human blood or make it any less suitable a subject for a search warrant.

State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Fla. Brevard County Ct.2004), aff'd, Isley v. State, Case No. 05-2004-AP-59852 (Fla. 18th Cir. Ct. 2005). Other Florida trial courts have reached the same conclusion. See State v. St. George, 16 Fla. L. Weekly Supp. 324a (Fla. Duval County Ct.2009); State v. McKinnon, 16 Fla. L. Weekly Supp. 829a (Fla. Duval County Ct.2009). This reasoning is persuasive. Blood may be extracted from the body and donated and/or sold for further use. And, blood has long been routinely seized for testing as evidence in many types of criminal cases. It only makes sense that the legislature would intend the term “property” to broadly include the types of physical items that would routinely be seized in connection with a criminal investigation.

However, we agree that blood is not “used as a means to commit” driving under the influence. Instead, blood is seized for its evidentiary value. And, no one uses his or her blood “as a means to” do anything, as those words are commonly used or understood. Given that statutes should be construed in accordance with their “plain and ordinary meaning,” Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla. 2011) (citations omitted), and that search warrants must strictly conform to the stat utes and constitutional provisions which authorize their use, State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697, 701 (1944); Crain v. State, 914 So.2d 1015, 1020 (Fla. 5th DCA 2005) (en banc), we agree with the trial court that blood cannot be drawn based upon probable cause that a suspect has committed misdemeanor DUI in light of the plain language of section 933.02, Florida Statutes.

The Good Faith Exception

Having concluded that a blood draw warrant cannot be issued based upon probable cause that a suspect has committed misdemeanor DUI, we must now address whether the test results in this case should be suppressed. The State argues that even if the warrant was improperly issued, the blood test results should not be suppressed because the officer in this case was acting in good faith reliance on a judicial determination that the warrant was authorized. The State notes that in Isley, such a warrant had previously been upheld in the same jurisdiction as this offense by the Brevard County Court, and the Eighteenth Judicial Circuit Court. Although the trial court never addressed this issue, the State clearly raised it below.

The good faith exception holds that the exclusionary rule need not be applied when the officer conducting the search acted in objectively reasonable reliance on an invalid warrant. State v. Watt, 946 So.2d 108, 110 (Fla. 5th DCA 2007) (citing Leon). The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 923 n. 23, 104 S.Ct. 3405.

Geiss argues that in Isley, Judge Silver-man acknowledged that an appellate determination that a warrant is not authorized under the warrant statute or is barred by the implied consent statute “may render the warrant so facially deficient as to preclude application of the Leon exception.” However, at the time the warrant was issued in this case, there was no such appellate decision barring such warrants. To the contrary, Isley was an appellate opinion from the same circuit which allowed them.

Applying the Leon good faith exception, we find that the blood test results in this case should not have been suppressed. Accordingly, we reverse the order on appeal and remand for further proceedings.

REVERSED AND REMANDED.

COHEN, J., concurs.

TORPY, J., concurs in part and dissents in part, with opinion.

TORPY, J.,

concurring in part and dissenting in part.

I agree with much of what my colleagues have said. Were I reviewing this case against a pristine precedential backdrop, I would probably concur. Nevertheless, I am constrained to dissent to that portion of the opinion that addresses the effect of the implied consent statute, section 316.1932, Florida Statutes, in light of our high court’s precedent in Sambrine v. State, 386 So.2d 546 (Fla.1980). There, the court said that the implied consent law “leads to the inescapable conclusion that a person is given the right to refuse testing.” Id. at 548. Based on this construction, it rejected the state’s contention that the statute is inapplicable “where the blood test is taken incidental to a lawful arrest and where there is probable cause to take a blood test coupled with exigent circumstances.” Id. The distinction that the majority makes — that the search here was conducted pursuant to a warrant — is an inconsequential one. The holding in Sam-brine is that the implied consent statute confers upon drivers in Florida greater protection against forced blood draws than that conferred by the constitutional prohibition against unreasonable searches. Simply stated, Sambrine holds that drivers have the right to refuse a blood draw even when the police are constitutionally authorized to forcibly take one. The warrant/warrantless distinction is only important in a Fourth Amendment analysis of what is reasonable. Whether or not police are authorized by warrant, or an exception to the warrant requirement, is immaterial to the issue of whether a citizen enjoys a statutory privilege to refuse a forced blood draw.

Contrary to the majority’s assertion, a statutory construction analysis does not support its conclusion. The search warrant statute is a statute of general application. The implied consent statute is a statute of specific application. It is a fundamental statutory construction tenet that the specific controls over the general in seemingly conflicting statutes. Adams v. Culver, 111 So.2d 665, 667 (Fla.1959). If, as our supreme court has stated, the implied consent statute confers upon citizens the right to refuse a blood draw (except under circumstances enumerated in that statute, not applicable here), the general search warrant statute does not trump that right. Surely, had the implied consent statute conferred the right to refuse in express terms, the majority would give effect to the specific legislative directive, notwithstanding the general authorization to issue warrants. Here, though the language of the statute might not be explicit, any uncertainty about its intent was resolved over thirty years ago by judicial interpretation — an interpretation that the legislature has had numerous opportunities to reject in its numerous amendments to the statute. See Zommer v. State, 31 So.3d 733, 754 (Fla.2010) (legislature is presumed to know judicial constructions of a law and presumed to have adopted those constructions when amending that law unless contrary intention expressed when amending that law).

I do agree that blood is not the “means” by which the crime of DUI is committed. Therefore, as the majority concludes, the search warrant statute is not broad enough to authorize a warrant when misdemeanor DUI is the crime under investigation. I also agree that reversal is proper here based on the good faith exception to the exclusionary rule. The police acted in good faith: they did not mislead the issuing judge, nor omit material facts in the warrant application. The subsequent debate about the legal niceties of whether the warrant was authorized is one for judges, not police officers. That is why judges must review and approve warrant applications. To exclude the evidence under these circumstances serves no deterrent purpose. See Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it.... [Exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”). Accordingly, I concur in the result.

ON MOTION FOR REHEARING AND CERTIFICATION

PER CURIAM.

We deny the State’s motion for rehearing, but grant its motion to certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), as one of great public importance:

DOES SECTION 933.02(2)(a), FLORIDA STATUTES, PRECLUDE LAW ENFORCEMENT OFFICERS FROM SECURING A WARRANT FOR A BLOOD DRAW IN MISDEMEANOR CASES INVOLVING AN ALLEGATION THAT A SUSPECT HAS DRIVEN WITH AN UNLAWFUL BLOOD ALCOHOL LEVEL?

REHEARING DENIED; QUESTION CERTIFIED.

LAWSON and COHEN, JJ., concur.

TORPY, J., concurs in part and dissents in part, with opinion.

TORPY, J.,

concurring and dissenting.

I concur that we should certify a question in this case. I do not agree with the narrow question proffered by the State and adopted by the majority. In my view, this case is controlled by Sambrine v. State, 386 So.2d 546 (Fla.1980). There, our high court suppressed blood taken by force, concluding that the implied consent law “leads to the inescapable conclusion that a person is given the right to refuse testing.” Id. at 548. In Sambrine, the search was warrantless. The threshold question here should be whether the use of a warrant to force a blood draw makes a difference. As I stated in my dissent, it doesn’t. Police do not need a warrant to take blood by force if there is probable cause to believe it is evidence of a crime. Sambrine did not turn on the absence of a warrant; it was based entirely on the Court’s conclusion that the implied consent statute established a statutory privilege to refuse a blood draw, even when police are acting within the limits of the Fourth Amendment. The presence or absence of a warrant has no bearing on the scope of this statutory privilege. The question I would certify is as follows:

Is the right to refuse a forced blood draw under the implied consent law, as recognized in Sambrine v. State, viable when the blood draw is authorized by warrant? If not, may a warrant issue to seize blood when the police only have probable cause that a misdemeanor has been committed?

I am appreciative of the State’s motive in presenting a narrow question, any answer to which leaves it in no worse position. Nevertheless, only an answer to the broader question will put an end to judicial labor on this topic.

      . Although the trial court found, and Geiss argues on appeal, that Sehmerber is distinguishable from the instant case because the defendant in Sehmerber had caused an accident with serious injuries and his blood was taken after he had already been transported to a hospital for treatment, Sehmerber’s holding has not been limited to such cases. See, e.g., State v. Slaney, 653 So.2d 422, 425 (Fla. 3d DCA 1995) (state appeal of misdemeanor DUI case involving one-car accident with no serious injury); Mclnnis (state appeal from four misdemeanor DUI cases with no mention of accidents, personal injury). The key consideration for Fourth Amendment purposes is whether probable cause exists to believe the defendant was driving under the influence of alcohol to the extent that his normal faculties were impaired. Mitchell, 245 So.2d at 622; State v. Kliphouse, 771 So.2d 16, 21 (Fla. 4th DCA 2000). Although the fact that a suspect caused an accident may be considered in determining probable cause, it is not necessary to establish probable cause. Rather, probable cause may be found by a combination of factors, including an "odor of alcohol on a driver’s breath ... the defendant’s reckless or dangerous operation of a vehicle, slurred speech, lack of balance or dexterity, flushed face, bloodshot eyes, admissions, and poor performance on field sobriety exercises.” Kliphouse, 771 So.2d at 23 (footnote omitted). Thus, obtaining blood based on probable cause appears to be constitutionally permissible even in misdemeanor DUI cases not involving an accident or serious injury.

      . The trial court also found that the blood draw was not authorized by section 316.1933(l)(a), which mandates that a police officer shall require a driver to submit to a blood test, by reasonable force if necessary, if the officer has probable cause to believe "that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages ... has caused the death or serious bodily injury of a human being.” This section is not applicable because Geiss did not cause death or serious bodily injury.

      . The State argues that other state appellate courts construing statutes comparable to ours have reached this same result, citing Smith,
        134 S.W.3d at 40; Brown v. State, 774 N.E.2d 1001, 1007 (Ind.Ct.App.2002); Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App. 2002); and State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427, 428 (1987). Of these cases, Smith, Beeman and Zielke are not particularly instructive because courts in those jurisdictions have interpreted their implied consent statutes as affording no greater protection than afforded under the Fourth Amendment. However, the Indiana Court of Appeals, in Brown, did address the same issue we address here, and reviewing similar statutes in light of similar prior precedent held that its implied consent statute did not prohibit police from lawfully seeking a warrant to compel the seizure of blood for testing. In addition to its statutory construction analysis, the Brown court noted that reading the implied consent law's silence on the issue of search warrants as a proscription against obtaining them would place drunken drivers in an "exalted class of criminal defendants, protected by the law from every means of obtaining the most important evidence against them.’ " Id. at 1007 (quoting Pena v. State, 684 P.2d 864, 869 (Alaska 1984) (Compton, J., dissenting)). We agree with the State that the reasoning in Brown is persuasive when applied to the analogous situation in Florida. We also find persuasive the following point made by the court in Beeman:

      The implied consent law does just that — it implies a suspect's consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search. On the other hand, if the State has a valid search warrant, it has no need to obtain the suspect's consent .... [because] once a valid search warrant is obtained ... consent, implied or explicit, becomes moot.

        Id. at 615-16 (footnotes and citations omitted).

      . By contrast, when law enforcement seeks to seize property because it has been "used as a means to commit” a crime, one would expect that all of the property so used would be seized. Of course, seizing all of the blood from a body would present other constitutional challenges. But, the fact that law enforcement only sought "samples" clearly shows that they were seeking "evidence relevant to proving that a felony has been committed,” which is only permissible when law enforcement has probable cause to believe that a felony has been committed.

      . The State did not address Sambrine in its written submissions, despite reliance upon it by both the trial court and Appellee.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jermaine A. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-544.
    District Court of Appeal of Florida, First District.
    June 2, 2011.
    Jermaine A. Harris, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

By order dated April 5, 2011, this court instructed Appellant to show cause why sanctions, including a prohibition against appearing as a litigant in this court unless represented by counsel, should not be imposed against him. We did so because the records of this court reflect that Appellant has been an appellant or petitioner in this court 17 times since 1998. Additionally, Appellant has repeatedly filed pro se petitions for extraordinary relief in the courts below as well as this court. He has also appealed the trial court’s dismissals of those improper petitions.

Appellant timely responded to our order to show cause. In that response, Appellant argues that this court, from which he has sought relief so often, never had the jurisdiction to entertain those entreaties in the first place. This response is not only unpersuasive, it is patently frivolous. Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, documents, or other filings submitted by Appellant unless signed by a member in good standing of The Florida Bar. Under the sanction imposed herein, Appellant is not being denied access to the courts; he may petition the court through the assistance of counsel, whenever such counsel determines that the proceeding may have merit and can be filed in good faith.

IT IS SO ORDERED.

WOLF, THOMAS, and ROWE, JJ„ concur.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Walker Lanier WHALEY, Appellee/Cross-Appellant.
    No. 1D10-4980.
    District Court of Appeal of Florida, First District.
    June 13, 2011.
    Rehearing Denied Aug. 3, 2011.
    Pamela Jo Bondi, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellant/Cross-Appellee.
    Paul A. Shorstein of Shorstein & Las-netski, LLC, Jacksonville, and Robert Stuart Willis of Willis, Ferebee & Hutton, Jacksonville, for Appellee/Cross-Appel-lant.
   PER CURIAM.

The State argues on appeal that the trial court erred in dismissing the Information, which charged Appellee/Cross-Appellant, Walker Lanier Whaley, with four counts of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. We reject the State’s argument. Section 790.23(l)(a), Florida Statutes, the statute alleged to have been violated, provides in part that it is unlawful for a convicted felon to possess “any firearm or ammunition.” Moreover, Appellee/Cross-Appel-lant was allegedly in possession of each of the firearms and the ammunition at the same time. See State v. Watts, 462 So.2d 813, 814 (Fla.1985) (holding that the defendant could not be charged with multiple offenses for the possession of two prison-made knives because the statute at issue addressed “any firearm or weapon” as opposed to “a firearm or weapon”); State v. Mitchell, 719 So.2d 1245, 1247 (Fla. 1st DCA 1998) (noting that the answer to what the Legislature intends the unit of prosecution to be for an offense is found by the application of the “a/any” test); see also Hill v. State, 711 So.2d 1221, 1223-25 (Fla. 1st DCA 1998) (holding that the application of the “a/any” test precludes more than one conviction for possession of a firearm by a convicted felon when multiple firearms are possessed at the same time).

We do find merit, however, in Appel-lee/Cross-Appellant’s argument that the trial court erred in ruling that the State could file an amended information charging one count of possession of a firearm by a convicted felon and one count of possession of ammunition by a convicted felon. See Boyd v. State, 17 So.3d 812, 814-18 (Fla. 4th DCA 2009) (noting that “ammunition” is listed in section 790.23(l)(a) after the word “any” and reversing and remanding for the trial court to vacate either the conviction for possession of a firearm by a convicted felon or the conviction for possession of ammunition by a convicted felon); see also Francis v. State, 41 So.3d 975, 976 (Fla. 5th DCA 2010) (same).

Accordingly, we affirm in part, reverse in part, and remand with instructions that the trial court permit the State to file an amended information charging either one count of possession of a firearm by a convicted felon or one count of possession of ammunition by a convicted felon.

REVERSED and REMANDED with instructions.

DAVIS, ROBERTS, and ROWE, JJ., concur.


author: LEWIS, J.

text:
    Keiuon D. MAJORS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4442.
    District Court of Appeal of Florida, First District.
    June 23, 2011.
    Rehearing Denied Aug. 2, 2011.

      Ryan M. Barnett of Whibbs & Stone, P.A., Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Keiuon D. Majors, Appellant, challenges his convictions and sentences for trafficking in illegal drugs, possession of a firearm or ammunition by a convicted felon, possession of cocaine, possession of a controlled substance without a prescription, possession of cannabis, and resisting an officer without violence. Appellant argues the trial court should have granted his dispositive motion to suppress evidence obtained after police officers stopped the vehicle in which he was traveling. He contends the stop was illegal because the officers had no reasonable suspicion of criminal activity. We agree. As a result, we reverse Majors’ convictions and sentences and remand with directions to the trial court to grant the motion to suppress and discharge him for these offenses.

Shortly before Appellant’s arrest, a bank manager called 911 and, whispering, reported that a customer was “acting weird” and attempting to withdraw $17,500. The customer wanted to make a check payable to the driver of a Nissan that was parked in front of the bank, and the customer kept going back and forth between the Nissan and the bank, acting strangely and having discussions with the people in the Nissan. The bank manager was not aware of this customer having made such a large withdrawal in the past. The dispatcher suggested that perhaps the people in the Nissan were forcing the customer to withdraw money. In response, the bank manager told the dispatcher that the customer seemed to know what he was doing but that the bank employees thought he might be on drugs. The bank manager also indicated that one of the people who had been outside at the Nissan had come into the bank. Some of the people involved in this scenario were pacing and wanting to know why the transaction was taking so long, and their activities were causing the bank employees concern. The bank manager described the Nissan, and the dispatcher conveyed the information to the responding officers.

When the officers arrived at the bank, they saw a Nissan matching the description provided in the call. The Nissan attempted to back out of a parking space, but the officers blocked the Nissan’s exit with their vehicles and then approached. Appellant was in the Nissan when the officer approached it. Based on his interaction with the police at that point, he was arrested, and evidence was seized from him.

Appellant filed a motion to suppress all the evidence seized as a result of the stop of the Nissan. He argued, among other things, that the officers lacked reasonable suspicion to stop the Nissan. At the suppression hearing, the officers admitted that they did not see any criminal activity and were not aware of any criminal activity that had occurred before they stopped the Nissan. They explained that the basis for stopping the Nissan was that it was involved in the call they were investigating.

Ultimately, the trial court concluded that the officers had reasonable suspicion to stop the Nissan and denied the motion to suppress. Thereafter, Appellant pled nolo contendere to six counts of criminal activity resulting from his interactions with the police at the bank. He reserved his right to appeal the denial of his motion to suppress and now raises the denial as error in this Court.

Motions to suppress present mixed questions of fact and law. See McKnight v. State, 972 So.2d 247, 249 (Fla. 1st DCA 2007). A trial court’s factual findings supporting a motion to suppress are reviewed to determine whether they are grounded in competent, substantial evidence, and its legal conclusions are reviewed de novo. Id. In particular, whether reasonable suspicion exists for a detention under a specific set of facts is a question of law to be reviewed de novo. Beahan v. State, 41 So.3d 1000, 1002 (Fla. 1st DCA 2010). We are bound by the state constitution to make this determination in conformity with the Fourth Amendment of the United States Constitution, as interpreted by the United States Supreme Court. Holland v. State, 696 So.2d 757, 759 (Fla.1997).

The Florida Supreme Court has recognized three levels of police-citizen encounters: consensual encounters, investigatory detentions, and formal arrests. Popple v. State, 626 So.2d 185, 185 (Fla.1993). An investigatory detention occurs when an officer makes “an official show of authority from which a reasonable person would conclude that he or she is not free to end the encounter and depart.” Dees v. State, 564 So.2d 1166, 1167 (Fla. 1st DCA 1990). Such a detention is proper only when a law enforcement officer has “reasonable suspicion that the person has committed or is about to commit a crime.” Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004). Otherwise, the detention violates the detainee’s Fourth Amendment rights, and any evidence obtained as a result of that detention is subject to suppression. See Popple, 626 So.2d at 185, 188. The State properly concedes that the detention of the Nissan in the instant case constituted an investigatory stop, as the Nissan’s occupants were not free to leave once the officers blocked their vehicle’s exit. Cf. McCreary v. State, 538 So.2d 1377, 1378 (Fla. 1st DCA 1989). Thus, the dispute in this case concerns whether the officers had reasonable suspicion to conduct the stop.

An officer’s basis for conducting an investigatory stop must be more than “[a] hunch or mere suspicion.” Faunce, 884 So.2d at 506; see Daniels v. State, 543 So.2d 363, 366 (Fla. 1st DCA 1989) (holding that a “bare” or “gut” feeling that a person is engaged in criminal activity is insufficient to justify a stop and frisk). To show a sufficient basis for an investigatory stop, the officer must “be able to articulate the supporting facts,” and the facts must show a well-founded suspicion. Faunce, 884 So.2d at 506. A reasonable or well-founded suspicion “is something less than probable cause, but more than an inchoate and unparticularized suspicion.” Rouse v. State, 643 So.2d 696, 697 (Fla. 1st DCA 1994).

To determine whether officers conducting an investigatory detention had a well-founded or reasonable suspicion of criminal activity, a court must examine the totality of the circumstances surrounding the detention. Faunce, 884 So.2d at 506. Relevant factors include the following: “the time of day; the appearance and behavior of the suspect; the appearance and manner of operation of any vehicle involved; and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.” Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006). Facts learned only in hindsight should not enter into the evaluation of the reasonableness of a search or seizure. See U.S. v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (explaining the purpose of the warrant requirement); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (acknowledging that “the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant” in the context of determining the reasonableness of an investigatory stop). However, under the “fellow officer rule,” the information possessed by one officer in the chain of an investigation, including a 911 dispatcher, is imputed to the other officers for the purposes of assessing whether an investigatory stop is justified. See State v. Maynard, 783 So.2d 226, 229 (Fla.2001).

In this case, Appellant relies partly on the fact that the officers admitted in their testimony that they did not suspect any particular crime was occurring when they stopped the Nissan. The State argues that this testimony is irrelevant. To the contrary, case law holds that an officer “must be able to articulate in particular and objective terms his reasonable suspicion of criminal activity.” Palmer v. State, 625 So.2d 1303, 1306 (Fla. 1st DCA 1993). Based on this principle, in determining whether reasonable suspicion for an investigatory stop existed, this Court has expressly considered the fact that an officer was not able to articulate facts relating to a specific criminal offense. See, e.g., Hill v. State, 51 So.3d 649, 650-51 (Fla. 1st DCA 2011) (observing that the officer could not do so and noting that the circumstances the officer identified as prompting the stop were insufficient to establish reasonable suspicion). As a result, we weigh the officers’ inability to point to facts that suggested a particular crime had occurred, was occurring, or was about to occur against a conclusion that reasonable suspicion existed.

The State argues that the Nissan’s attempt to leave the bank supports a conclusion that the officers had reasonable suspicion. It is proper to consider this factor, particularly if the evidence suggests that the Nissan left in “headlong flight,” which the United States Supreme Court has deemed “the consummate act of evasion.” Illinois v. Wardlow, 528 U.S. 119, 121, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Typically, flight from the police justifies a stop when it is unprovoked and occurs in a high-crime area. See id. However, this Court has emphasized that flight from the police is simply one factor to be considered and that “reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears.” Hill, 51 So.3d at 651. Standing alone, flight is insufficient to give rise to a reasonable suspicion of criminal activity. See F.E.A. v. State, 804 So.2d 528, 529 (Fla. 1st DCA 2002); Jean-Marie v. State, 947 So.2d 484, 488 (Fla. 3d DCA 2006) (citation omitted). Additionally, when a vehicle drives away from the scene “in an unremarkable fashion,” the act of leaving the scene is not likely to give rise to a reasonable suspicion of criminal activity. See Hill, 51 So.3d at 651.

The State contends that the officers’ collective knowledge gave rise to a reasonable suspicion that “a person, or persons, in the Nissan was, or had been, influencing the customer, by force or otherwise, to withdraw a large amount of money payable to someone in the Nissan.” This argument strains the facts and may rely partly on hindsight. For example, the State notes in its brief that one of Appellant’s companions went inside the bank and said she was not going to jail, that the bank customer was Baker Acted, and that several arrests were made. The record indicates that these facts came to light after the Nissan was stopped. As a result, we do not consider them in our reasonable suspicion analysis.

Importantly, the officers in this case were not able to articulate a basis for suspecting criminal activity, as they were not even able to state a crime they believed was occurring. As suggested above, this factor weighs heavily in favor of a conclusion that no reasonable suspicion existed. Moreover, had they named a crime they believed was occurring, there would have been insufficient evidence to support their suspicion. The customer’s activity inside the bank was strange, but the concern that this strange behavior and his interaction with the Nissan related to criminal conduct was not supported by any articulable facts. The Nissan’s attempt to leave the bank when the officers arrived does not tip the scale in favor of finding reasonable suspicion because the testimony indicates that the Nissan simply began to back out of a parking space. Cf. Hill, 51 So.3d at 651 (declining to find reasonable suspicion of criminal activity based on a vehicle’s driving away from the scene in an “unremarkable fashion”). When all of the circumstances are considered, any suspicion that the people in the Nissan were improperly influencing the bank customer to withdraw money or were otherwise involved in a crime is highly speculative and properly characterized as a hunch. Cf. Cooks v. State, 28 So.3d 147, 149 (Fla. 1st DCA 2010) (holding that officers lacked reasonable suspicion to detain a vehicle described in a 911 call where a hotel clerk reported that she felt unsafe as a result of an attempt by one of the vehicle’s occupants to open the door to the establishment after being asked to leave); Hall v. State, 366 So.2d 865, 865 (Fla. 4th DCA 1979) (concluding that officers had only a “bare suspicion,” which did not authorize the detention of the suspects, where a retail store manager had reported that the suspects were acting in a “suspicious manner” and had visited the store several times that day without appearing interested in buying anything). As a result, we hold that the officers lacked reasonable suspicion to conduct an investigatory stop of the Nissan.

As an alternative to arguing that the officers had reasonable suspicion for the stop, the State urges us to affirm on the basis of the community caretaking doctrine, claiming that it was proper to detain the Nissan to determine whether the occupants of the Nissan had placed anyone’s safety in jeopardy. Under the community caretaking doctrine, an officer may stop a vehicle without reasonable suspicion of criminal activity if the stop is necessary for public safety and welfare. Shively v. State, 61 So.3d 484, 485-86, 2011 WL 2029622, at *1 (Fla. 2d DCA 2011); Gentles v. State, 50 So.3d 1192, 1198-99 (Fla. 4th DCA 2010) (collecting examples). For example, an officer is permitted to stop a vehicle when it is being operated in an unusual manner even though no traffic violation is suspected. State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5th DCA 2005). The purpose of such a stop is to ascertain whether the driver of the vehicle is in need of assistance due to illness, tiredness, or impairment and to protect the motoring public from harm. See Shively, 61 So.3d at 486, 2011 WL 2029622 at *2; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Such a stop is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady, 413 U.S. at 441, 93 S.Ct. 2523. Even a stop pursuant to an officer’s community caretaking responsibilities, however, must be based on specific articulable facts showing that the stop was necessary for the protection of the public. See Cas- tella v. State, 959 So.2d 1285, 1292 (Fla. 4th DCA 2007). Here, if the officers had intended to stop the Nissan to check on the safety of its occupants or any person its occupants may have been threatening, the stop would have been based on sheer speculation, rather than articulable facts related to public safety. Accordingly, we reject the invitation to affirm this case based on the community caretaking doctrine.

In sum, because the stop of the Nissan was not justified by either reasonable suspicion or the officers’ community caretak-ing functions, we reverse the denial of the motion to suppress. Because the motion to suppress is dispositive, we reverse the judgment and sentence appealed from and remand with directions to the trial court to grant the motion to suppress and to discharge Appellant for the offenses at issue in this case.

REVERSED and REMANDED with directions.

DAVIS and WETHERELL, JJ., concur.


text:
    Harold S. KIRKLAND, individually, and Martha C. Kirkland, individually, Appellants, v. PEOPLESSOUTH BANK Appellee.
    No. 1D10-2569.
    District Court of Appeal of Florida, First District.
    June 28, 2011.
    J. Patrick Floyd of Law Offices of J. Patrick Floyd, Chtd., Port St. Joe, for Appellant.

      Darren Keith McCartney and David C. Willis of Rumberger, Kirk & Caldwell, Orlando; Clifford W. Sanborn of Barron Redding, Panama City, for Appellee.
   PER CURIAM.

Harold and Martha Kirkland appeal the trial court’s order quieting title to property acquired by Seven Mile, LLC, from the Kirklands and enjoining the Kirklands from interfering with Seven Mile’s right to access and navigate from the property through a passage from Searcy Creek to the Intracoastal Waterway. We affirm the portion of the order quieting title without discussion. However, we reverse and remand the order granting the permanent injunction because the trial court failed to provide sufficient reasons to support its issuance.

Facts and Procedural History

In 2005, the Kirklands executed a contract with Seven Mile, LLC, for the sale of 2.69 acres, identified as Parcel 1. The property, listed for sale as canal front property, abutted a junction of Searcy Creek and the Intracoastal Waterway in Gulf County, Florida. Contiguous to the canal front portion of the property were docks and a boat landing. In 2006, Seven Mile acquired an adjacent property, identified as Parcel 2, from Donald Trew, who had purchased the property in 2004 from the Kirklands. The deed for Parcel 2 described the property as running to the water’s edge.

Just days after closing on the sale of Parcel 1 to Seven Mile, the Kirklands claimed ownership of the docks and boat landing located at the canal front of the property. In addition, the Kirklands asserted ownership of a strip of land along the north side of the water’s edge and the bottomland located at the junction of the mouth of Searcy Creek and the Intracoas-tal Waterway which was included in Parcel 2 and is identified in this action as Parcel 2(a), or “the thumb.” The Kirklands’ claim to the property was based upon a deed received from Harold Kirkland’s mother, who had inherited it from her father, Stetson Pridgeon, the man who allegedly dredged the bottomland in the 1940’s to create the boat landing on his property.

After claiming ownership of the docks, boat landing, and bottomland, the Kirk-lands allegedly undertook actions which interfered with Seven Mile’s use of the boat landing and docks and blocked Seven Mile’s access to the Intracoastal Waterway. As a result, Seven Mile filed suit against the Kirklands to quiet title to Parcel 2(a) and sought a permanent injunction against the Kirklands to prohibit them from interfering with Seven Mile’s right to access and navigate from Searcy Creek to the Intracoastal Waterway.

After a two-day trial, the court entered an order granting Seven Mile’s claim for permanent injunctive relief against the Kirklands. The order consists in its entirety of the following two paragraphs in which the court concluded without discussion that Seven Mile was entitled to access the Intracoastal Waterway from its property through the mouth of Searcy Creek:

Injunctive Relief: In Count III plaintiff asserts an action for injunctive relief. Plaintiff seeks to prohibit the defendants from interfering with plaintiffs right to access and navigation of Searcy Creek to the Intracoastal Waterway. An injunction for the most part is preventive and cannot ordinarily be employed to correct a wrong already done or restore to a party rights of which he or she has been deprived. It is generally available to prevent threatened harm, but is not available to redress harm that has already occurred.
For more than 50 years the public used the mouth of Searcy Creek to navigate between the Intracoastal Waterway and Searcy Creek unimpeded and without restriction. The Court finds that Seven Mile and the public have the right to navigate the mouth of Searcy Creek and the defendants are enjoined from any acts which interfere with those rights.

Because the trial court’s order granting the permanent injunction fails to specify the reasons for entry of the injunction, we are compelled to reverse and remand to the trial court for further proceedings.

Analysis

Under Florida Rule of Civil Procedure 1.610(c), “[ejvery injunction shall specify the reasons for entry....” The specificity requirement of rule 1.610(c) applies to both temporary and permanent injunctions. See Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So.3d 202, 206-07 (Fla. 4th DCA 2009). Where a trial court fails to include specific reasons for issuing an injunction, the reviewing court must reverse. See id. (reversing a permanent injunction order and remanding for court to enter order specifying the reasons for entry, pursuant to rule 1.610(c)); Hasley v. Harrell, 971 So.2d 149, 152-53 (Fla. 2d DCA 2007) (reversing order of injunction because its form was deficient under rule 1.610(c)).

Here, the trial court’s order granting a permanent injunction consists of a single finding, specifically that “Seven Mile and the public have the right to navigate the mouth of Searcy Creek because the public, for over 50 years, had “used the mouth of Searcy Creek to navigate between the Intracoastal Waterway and Se-arcy Creek unimpeded and without restriction.” Because the trial court failed to make specific findings regarding irreparable harm and an unavailable remedy at law, the order is facially defective under Florida Rule of Civil Procedure 1.610(c). See, e.g., Hadi v. Liberty Behavioral Health Corp., 927 So.2d 34, 38 (Fla. 1st DCA 2006) (holding injunction order facially defective without factual findings to support essential elements of test for injunc-tive relief and remanding for findings in compliance with the rule); Premier Lab Supply, Inc., 10 So.3d at 206-07 (same); Cadicamo v. Alite, 4 So.3d 699, 700 (Fla. 2d DCA 2009) (same); City of Homestead v. Ramirez, 621 So.2d 548, 548 (Fla. 3d DCA 1993) (same). For this reason, we must reverse and remand the cause for the trial court to enter an appropriate order based on the evidence received at trial.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, PADOVANO, and ROWE, JJ., concur.

      . Following the initiation of this appeal by the Kirklands, PeoplesSouth Bank obtained a summary final judgment of foreclosure against Seven Mile, LLC, and thus, succeeded to Seven Mile’s interest in this case.

      . We do not reach the question of whether this finding is supported by record evidence.


text:
    Tarsis LINHARES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6559.
    District Court of Appeal of Florida, First District.
    June 28, 2011.

      Nancy Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the judgment and sentence rendered on January 15, 2009, in Duval County Circuit Court case number 16-2008-CF-9337-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


text:
    Jeffrey Jerome WALKER, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D10-4680.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Jeffrey Jerome Walker, pro se, Appellant.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Jeffrey Jerome Walker, challenges an order striking his motion for reimbursement of filing fees and referring Appellant for disciplinary action under section 944.279, Florida Statutes (2009). We affirm, and sua sponte impose additional sanctions for Appellant’s repeated abuse of process.

On October 16, 1997, the circuit court entered an order prohibiting Appellant from filing documents on his own behalf without prepaying any fee, and directing the clerk of court to reject any document filed by Appellant not accompanied with a filing fee or signed by a member of the Florida Bar.

Since the sanction order was entered, Appellant has filed no fewer than 30 pleadings, including approximately 19 appeals or petitions in this court. The current appeal before this court stemmed from a petition for writ of habeas corpus filed pro se in 2004. The circuit court dismissed the petition because it did not meet the requirements for habeas relief and Appellant was not represented by counsel. Appellant appealed the dismissal, and a lien was placed on Appellant’s prisoner trust account for the full amount of court costs and fees because he was unable to prepay the costs. The lien was ratified by separate order. This court affirmed the dismissal per curiam.

Appellant then moved to recall the order imposing the lien, and moved for reimbursement of $77.77 that was withdrawn from his trust account to satisfy a portion of the lien. The circuit court struck Appellant’s motion and referred him to the Department of Corrections for disciplinary action for failing to comply with the 1997 sanctions order.

“It is well-settled that courts have the inherent authority and duty to limit abuses of judicial process by pro se litigants.” Golden v. Buss, 60 So.3d 461 (Fla. 1st DCA 2011); see Jackson v. Fla. Dep’t of Corr., 790 So.2d 398, 400 (Fla.2001) (noting the supreme court has inherent power to regulate and sanction a disruptive litigant); McCutcheon v. State, 44 So.3d 156, 162 (Fla. 4th DCA 2010) (concluding appellant’s appeals were frivolous, malicious, and not filed in good faith; forwarding opinion to the DOC for consideration of disciplinary procedures).

Appellant’s disregard for the judicial process is well documented. We find that Appellant’s continued practice of filing pro se pleadings in violation of the circuit court’s sanction order to be frivolous. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat.

AFFIRMED.

WOLF, THOMAS, and CLARK, JJ., Concur.


author: HAWKES, J.

text:
    B.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5917.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Rehearing Denied Oct. 6, 2011.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr. and Richard B. Gordon, Assistant Public Defenders, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Donna A. Gerace, and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   HAWKES, J.

This is an appeal from a conviction for trespass on school grounds pursuant to section 810.097(2), Florida Statutes (2010). Defendant argues the trial court erred in denying his motion to dismiss the charge. Although the motion is not included in the record, one of the arguments defendant raises on appeal reveals fundamental error, namely that there was no evidence showing the principal or his designee ordered him to leave school grounds. Because this was a necessary element of section 810.097(2), we reverse.

Facts

At trial, the State presented testimony from Deputy Michael F. LaForte of the Duval Police Department. LaForte testified he was a “school board police officer” assigned to defendant’s school. As a member of the school board police, he was responsible for enforcing all state laws on school property. In particular, he could issue trespass warrants excluding people from school grounds on his own authority. LaForte testified he was not under the “command” of the school principal and had no “connection” with the principal’s office.

LaForte then described the circumstances of defendant’s arrest. He stated that on the date of the offense, he noticed a large group of students forming a circle in the school parking lot. Believing a fight was about to take place, he approached the group and ordered them to leave the property. It was at this time that he encountered defendant, who refused to leave. After ordering defendant to leave school grounds three times, he placed defendant under arrest.

After LaForte’s testimony, the State rested and the defense moved to dismiss the charge pursuant to Florida Rule of Juvenile Procedure 8.110(k). The grounds of this motion, as well as the trial court’s response, are not included in the record. All the record indicates is that the motion was denied. The trial court eventually found defendant guilty as charged, but withheld adjudication and imposed no penalty. Defendant now challenges the denial of his motion to dismiss.

Preservation

Initially, we find defendant’s arguments concerning the denial of his motion to dismiss were not preserved for appellate review. When evaluating the denial of a motion to dismiss in a juvenile proceeding, an appellate court may consider only those arguments specifically raised and ruled upon during the proceedings below. See A.P.R. v. State, 894 So.2d 282, 286 (Fla. 5th DCA 2005).

Here, the record does not include the motion to dismiss. It includes only a passing reference by the State Attorney that defendant had raised a motion to dismiss and that it had been denied. Because the grounds for the motion were not included in the record, there is no way to know whether the arguments raised on appeal were considered by the trial court when it denied the motion. Therefore, we must treat the arguments raised on appeal as unpreserved.

However, the defendant’s arguments can still be addressed if they constitute fundamental error. “[A]n argument that all evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.” F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003); see also A.P.R., 894 So.2d at 286.

After examining each of defendant’s arguments on appeal, we conclude that he has raised a claim which constitutes fundamental error. In particular, defendant argues the State offered insufficient evidence to establish section 810.097(2) as it did not show LaForte was a designee of the principal. As will be explained below, this was a necessary element of the offense, and the total absence of evidence supporting it warrants reversal.

The need to prove the involvement of the principal or his/her designee under Section 810.097(2)

Section 810.097(2) defines the offense of trespass on school grounds in the following way:

Any person who enters or remains upon the campus or other facility of a school after the principal of such school, or his or her designee, has directed such person to leave such campus or facility [ ] commits a trespass upon the grounds of a school facility!)]

According to the language of the statute, the order to leave must come from “the principal” or “his or her designee.” Defendant claims the State failed to meet this element. Indeed, an examination of the record reveals that not only was there a lack of evidence regarding this element, there was actually evidence refuting it.

During direct examination, LaForte testified he was not under the “command” of the school principal and had no “connection” with the principal’s office. He also stated he could issue trespass warrants excluding people — such as defendant— from school grounds solely under his own authority. Such evidence implies he was not acting as the principal’s “designee” when he ordered defendant to leave school grounds. Because no evidence was introduced linking LaForte to the principal’s office in any way, and because the evidence which was introduced demonstrated LaForte had no such connection, the evidence was insufficient as a matter of law to establish this needed element of section 810.097(2). The lack of evidence establishing the offense constitutes fundamental error and warrants a reversal of defendant’s conviction.

The Third District’s opinion in D.J. v. State

By reversing defendant’s conviction, we are recognizing that the State must prove the involvement of the principal or his/her designee to establish a violation of section 810.097(2). This conflicts with the Third District’s decision in D.J. v. State, 43 So.3d 176 (Fla. 3d DCA 2010). In D.J., the evidence showed a school security guard had directed the defendant not to enter school property. Id. at 177. On appeal, the defendant argued the trial court should have dismissed the case because the State failed to introduce any evidence that the security guard was a designee of the principal, as required by section 810.097(2). Id. The Third District rejected this argument. It found that proving the order to leave came from the principal or his/her designee does not become a necessary element of section 810.097(2) unless, at trial, the defendant challenges the authority of the individual giving the order. Id. Because the defendant in D.J. did not contest the security guard’s authority at trial, the Third District affirmed the conviction. Id. This was incorrect for two reasons.

First, the language of section 810.097(2) clearly indicates that it is necessary to demonstrate the order to leave came from the principal or his/her desig-nee. It is also required by the jury instructions for section 810.097(2), which indicate the State must show:

(1) Defendant entered or remained on the campus of (school name) [and]
(2) The principal or [his] [her] designee [told or directed the defendant to leave the campus or facility]

Fla. Std. Jury Instr. (Criminal) 13.5(b) (2010). Indeed, the jury instructions identify the charge as “Trespass on School Grounds or Facilities after Warning by Principal or Designee.” (emphasis added). The fact that the order came from the principal or his/her designee sets section 810.097(2) apart from other trespass charges. Given the clear language in the statute and jury instructions, it cannot simply be assumed that this element has been met, as the Third District seems to advocate in D.J. The State must show, beyond a reasonable doubt, that the defendant was instructed to leave by the principal or his/her designee to establish the offense.

Second, the authority cited by the Third District in D.J. does not support its interpretation of section 810.097(2). The Third District cited Downer v. State, 375 So.2d 840 (Fla.1979), and R.C.W. v. State, 507 So.2d 700, 701-02 (Fla. 1st DCA 1987), as support. However, neither case deals with section 810.097(2).

Downer concerned section 810.08(1), Florida Statutes, the general provision governing trespass in a structure or conveyance. In interpreting section 810.08(1), the Supreme Court stated it did not believe “that the identity and authority of those who have withheld permission to enter certain portions of a public facility are elements of the trespass statute.” 375 So.2d at 845. It went on to state that under section 810.08(1),

[i]t is sufficient if the prosecutor establishes that the defendant was on notice that he was not authorized to enter the portion of the public building in which the alleged trespass occurred. Only if the defendant at tidal challenges the authorization of one who has posted notice of or who has otherwise communicated this restriction, is the state required to prove the identity of the individual and his authority to restrict access to the portion of the public facility in question.

Id. at 845-46.

However, Downer may be distinguished from the instant case as it is not necessary to show an individual in a position of authority ordered the defendant to leave to establish the elements of section 810.08(1). As the Supreme Court stated, section 810.08(1) is satisfied so long as the defendant receives notice that he or she is trespassing; it does not require that such notice come from an authorized individual. This is in stark contrast to section 810.097(2), which hinges entirely upon the principal or his/her designee ordering the defendant to leave. Unlike section 810.08(1), the language of section 810.097(2) requires that a particular authorized individual be involved for a violation to be found.

Similarly, R.C.W. v. State concerned a trespass statute which did not require establishing the identity of the individual ordering the defendant to leave. The defendant in R.C.W. was charged with violating section 810.09, Florida Statutes, which governs trespass on property other than a structure or conveyance. Id. at 701-02. This Court in R.C.W. broke section 810.09 into its elements, and found the provision did not require the State “to prove that appellant defied an order to leave communicated by the owner or [another] authorized person[.]” Id. at 702. Again, the situation changes when comparing section 810.09 with section 810.097(2), which hinges entirely upon the identity of the individual ordering the defendant to leave.

Conclusion

We conclude that the evidence presented by the State was insufficient to establish that defendant was ordered to leave school grounds by the school principal or his/her designee. Because this was an essential element of the charge under section 810.097(2), defendant’s conviction constitutes fundamental error. Accordingly, we reverse. To the extent that this decision does not comport with the Third District’s opinion in D.J., we certify conflict.

REVERSED; CONFLICT CERTIFIED.

VAN NORTWICK and PADOVANO, JJ., concur.

      . We address only the officer's authority to exclude individuals from school grounds under section 810.097(2). He may very well have authority elsewhere but the charge here was a violation of section 810.097(2).


text:
    Charles JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1677.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Charles Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the December 30, 2010, judgment and sentence in Escambia County Circuit Court case number 2010-CF-002553-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Robert Wayne THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1640.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Robert Wayne Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the February 19, 2010, judgment and sentence in Levy County Circuit Court case number 38-2009-CF-273A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Michael VINES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0361.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Michael Vines, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael Vines appeals the summary denial of his Rule 3.850 motion claiming ineffective assistance of counsel on six grounds. We affirm, without discussion, the trial court’s denial of grounds 2, 5 and 6. But we reverse the denial of grounds 1, 3 and 4 because the court erroneously relied on defense counsel’s affidavit to refute Vines’s claims. See Morris v. State, 624 So.2d 864, 865 (Fla. 2d DCA 1993) (“[A]ffidavits generally cannot substitute for live testimony, subject to cross-examination, in proceedings under Florida Rule of Criminal Procedure 3.850.”); Robinson v. State, 516 So.2d 20, 20 (Fla. 1st DCA 1987) (stating that trial court could not rely on defense counsel’s affidavit in denying postconviction motion alleging ineffective assistance of counsel). We remand for the trial court either to attach parts of the record refuting Vines’s claims or to hold an evidentiary hearing. See generally Penn v. State, 941 So.2d 466 (Fla. 1st DCA 2006).

AFFIRMED, in part; REVERSED, in part, and REMANDED.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Damone ELKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0066.
    District Court of Appeal of Florida, First District.
    July 18, 2011.

      Damone Elkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the January 5, 2009, judgment and sentence in Escambia County Circuit Court case number 2008-CF-003093-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED. '

WOLF, THOMAS, and CLARK, JJ„ concur.


text:
    Garrison M. STARKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1723.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Garrison M. Starkes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motion for postconviction relief, rendered on or about April 15, 2010, in Duval County Circuit Court case number 16-2003-CF-1630-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Tyrone L. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6830.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Tyrone L. Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order dismissing motion for postconviction relief rendered September 24, 2010, in Columbia County Circuit Court case number 2005-306-CF, is granted. See Kohn v. State, 4 So.3d 702 (Fla. 1st DCA 2009). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Elbert JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3574.
    District Court of Appeal of Florida, First District.
    July 25, 2011.
    Elbert Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Johnson v. State, 700 So.2d 690 (Fla. 1st DCA 1997); Baker v. State, 878 So.2d 1236 (Fla.2004); Pettway v. State, 776 So.2d 930 (Fla.2000).

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


text:
    Marvin KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1655.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Rehearing Denied Oct. 5, 2011.

      Marvin Knight, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He alleges the court illegally enhanced his sentences for attempted first-degree murder and armed kidnapping pursuant to section 775.087, Florida Statutes (1987).

Background

This case has a long history relevant to the decision in this appeal. In 1989, a jury convicted the appellant on nine counts, including attempted first-degree murder (count one) and armed kidnapping (count six). These counts were enhanced to life sentences for use of a firearm. The court also classified the appellant as a habitual felony offender on the eight felony counts. The court sentenced him to life in prison for count one, to be served consecutively with thirty years on count six. The court also imposed a minimum mandatory of three years on counts one, three, five and six, all to be served consecutively. This Court affirmed the convictions and sentences on direct appeal. Knight v. State, 561 So.2d 1363 (Fla. 1st DCA 1990).

In the appellant’s first postconviction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, he argued the mandatory minimums were “illegal because the jury failed to make a specific finding that he personally possessed a firearm during the commission of the crime.” Knight v. State, 763 So.2d 1231, 1232 (Fla. 1st DCA 2000) (Knight I). The decision noted that the trial court should have considered that claim under rule 3.800(a), and directed the trial court to do so on remand. This Court made no finding on the merits of the appellant’s claim, but did declare the consecutive sentences illegal on other grounds. Specifically, those convictions that are enhanced to life felonies do “not qualify for habitual offender treatment.” This Court vacated the sentences, and remanded to the trial court for resentencing on counts one and six.

The trial court resentenced the appellant accordingly and denied his claim that the three-year minimum mandatory sentences were illegal. On his second appeal, this Court reversed, noting that in crimes with two participants, the jury must specifically find that a person had actual possession of the firearm to qualify for sentencing under section 775.087. Knight v. State, 800 So.2d 702, 702 (Fla. 1st DCA 2001) (Knight II) (citing Robinson v. State, 698 So.2d 908, 908 (Fla. 1st DCA 1997), which stated that “because the verdict form does not contain a specific finding that the defendant actually possessed the firearm, the three-year mandatory minimum cannot be applied”). Because the jury did not specifically find that the appellant had actual possession of the gun, this Court remanded the case to the trial court with orders to vacate the minimum mandatory sentences. The appellant now argues that our holding in Knight II shows the jury never found him in actual possession of a firearm, and therefore, the enhancement of counts one and six from first-degree felonies to life felonies is illegal.

Analysis

Pursuant to section 775.087, a person in possession of a firearm during the commission of a felony of the first degree must have his sentence enhanced to a life felony. Actual possession of a firearm is required for this statute to apply. Robinson, 698 So.2d at 908. As already noted, this Court already found the jury did not make a specific finding that the appellant had actual possession of a firearm. For this reason, the sentence must be vacated as illegal.

The state argues the trial court was correct in its denial of the appellant’s motion. The trial court based its decision on language from Knight I, which the court believed “definitively determined that the attempted first-degree murder charge and the armed kidnapping charge were properly classified as life felonies.” However, this Court only made a finding that the judgment reflected that the convictions were enhanced; it did not make any finding as to the propriety of the enhancement. Moreover, this Court’s holding in Knight II suggests quite the opposite. Finally, in Knight I, we expressly left open the issue as to whether the appellant’s sentence was illegal due to the jury’s not making a finding that he was in actual possession of the firearm, and remanded to the trial court for that determination.

We conclude that the record conclusively establishes that the appellant’s convictions for attempted first-degree murder and armed kidnapping were illegally enhanced to life felonies because the jury did not find that the appellant was in actual possession of a firearm. We therefore reverse the summary denial of the appellant’s claims in this regard and remand for the trial court to strike the enhancements and resentence the appellant in accordance with this opinion. We note that once the firearm enhancement is removed, the appellant’s convictions will constitute first-degree felonies, and the trial court will be free to rehabitualize the appellant and sentence him accordingly. We affirm without discussion the remaining claims raised in the appellant’s motion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED with directions.

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


text:
    Russell T. NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2777.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Rehearing Denied Sept. 30, 2011.
    Russell T. Neal, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition alleging ineffective assistance of appellate counsel is dismissed as untimely and successive. See Fla. R.App. P. 9.141(d)(5) and (d)(6)(C).

Additionally, because of petitioner’s apparent abuse of the legal process by his repeated pro se filings attacking his convictions and sentences, this court issued an order directing petitioner to show cause why he should not be prohibited from future pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (requiring that courts “first provide notice and an opportunity to respond before preventing [a] litigant from bringing further attacks on his conviction and sentence.”). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

Petitioner’s continued and repeated attacks on his convictions and sentences have become an abuse of the legal process. Accordingly, the Clerk of this Court is directed to reject any future filings submitted by Russell T. Neal that are related to his convictions or sentences in Okaloosa County Circuit Court case number 03-CF-903, unless such filings are signed by a member in good standing of The Florida Bar. Petitioner is warned that any filings which violate the terms of this opinion may result in a referral to the appropriate institution for disciplinary procedures as provided in section 944.279, Florida Statutes. See Fla. R.App. P. 9.410.

LEWIS and WETHERELL, JJ., concur; BENTON, C.J., concurs as to the dismissal of the petition, but dissents as to the imposition of sanctions.


text:
    Gina Brasher LANGLEY, Appellant, v. Suzanne Worrall GREEN, P.A., a/d/b/a, Suzanne W. Green, Esquire, a/k/a, The Law Firm, Appellee.
    No. 1D11-2642.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2011.
    Rehearing Denied Sept. 30, 2011.
    Gina Brasher Langley, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Dedge v. Crosby, 914 So.2d 1055 (Fla. 1st DCA 2005) (dismissing appeal from an amended order granting amended motion to dismiss despite the lower tribunals apparent intent to enter an appealable order). This dismissal is without prejudice to the appellants right to file a timely appeal when a final order has been rendered.

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    David YORK, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3995.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Rehearing and Rehearing En Banc Denied Oct. 3, 2011.

      Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, and Hal G. Uhrig of The Defense Group, Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Rushing, -So.3d-, 2011 WL 2581777 (Fla. 5th DCA2011).

GRIFFIN, SAWAYA and PALMER, JJ., concur.


text:
    STATE BOARD OF ADMINISTRATION, Appellant, v. Guy M. BURNS; Johnson, Pope, Bokor, Ruppel & Burns, LLP fka Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P. A.; Thomas R. Grady; and Thomas R. Grady, P.A., Grady & Associates, L.P.A., Appellees.
    No. 1D10-6572.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2011.
    Rehearing Denied Oct. 5, 2011.

      Pamela Jo Bondi, Attorney General, and James A. Peters, Special Counsel, Office of Attorney General, Tallahassee; and E. Lamar Taylor, Deputy General Counsel, State Board of Administration, Tallahassee, for Appellant.
    Richard Doran and Jason Gonzalez of Ausley & McMullen, Tallahassee, and Jonathan S. Coleman of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Tampa, for Appel-lees.
   PER CURIAM.

The State Board of Administration (SBA) challenges an order compelling arbitration pursuant to a contingency fee agreement it entered into with Appellees (hereafter “the law firms”). SBA contends that the parties did not agree to arbitrate the law firms’ entitlement to compensation under the agreement. We agree and reverse.

SBA employed Alliance Capital Management (Alliance) as an investment manager to invest the assets of the Florida Retirement System Trust Fund. After Alliance purchased Enron securities which resulted in losses to the Trust Fund, SBA retained the services of the law firms to prosecute its legal claims against Alliance. The parties entered into a contingency fee agreement which provided that the law firms’ compensation was “contingent upon a successful result against Alliance through either settlement or judgment.” The law firms’ compensation — which was defined in the agreement to include “fees, costs and expenses” — was to be paid “from the proceeds of a settlement or judgment in the Action in favor of [SBA],” with the costs and expenses paid from the gross proceeds and the attorney’s fees paid from the net proceeds after costs and expenses.

The jury in the Alliance action found in favor of Alliance, and against SBA, on all claims, including Alliance’s counterclaim for unpaid management fees. A final judgment was entered against SBA awarding Alliance $1,113,445 on its counterclaim. After the jury returned its verdict, the law firms presented an invoice to SBA for their costs in the Alliance litigation. The law firms’ claim was premised on SBA having obtained a benefit from Alliance through an agreement that SBA negotiated with Alliance during trial without the knowledge of the law firms. The law firms claimed that, as a result of this agreement, SBA recovered $1,113,445 plus statutory interest (for a total of $1,381,465) in “settlement proceeds” from which they were entitled to compensation under their agreement with SBA. SBA denied the law firms’ demand for payment, explaining that “[tjhere is nothing in ... our agreement that substantiates your entitlement to reimbursement of costs, expenses or time in light of the verdict reached in the case.” (emphasis added).

Approximately five years later, the law firms initiated this action by filing a petition with the trial court to compel SBA to participate in arbitration or, alternatively, to pay damages for breach of contract based on SBA’s failure to pay the compensation owed to the law firms for the Alliance matter. The law firms also filed a separate motion to compel arbitration. SBA countered with a motion for summary judgment, arguing that arbitration was not required because the arbitration provision in the parties’ contingency fee agreement was binding only on the law firms and because the arbitration provision applied only to disputes over the amount of fee, not the law firms’ entitlement to a fee. SBA further argued that because it did not prevail in the underlying Alliance litigation, the law firms were not entitled to any compensation under the parties’ agreement.

The trial court granted the law firms’ motion to compel arbitration. The court reasoned that, under the parties’ agreement, “any dispute over the amount of compensation due under the contract constitutes an arbitrable issue” and that an arbitrable issue exists between the parties because “SBA disputes that it owes any fee to [the law firms].” The trial court rejected SBA’s argument that the arbitration provision was binding only on the law firms and that it could “opt out” of arbitration even if an arbitrable issue exists. SBA timely appealed the trial court’s order to this court, as allowed by Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

In ruling on a motion to compel arbitration, the trial court must consider “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitrate was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The parties agree that only the second element is at issue in this case.

The determination of whether a particular dispute is subject to arbitration is a matter of contract interpretation that is reviewed de novo. See O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006).

Although public policy favors arbitration and all doubts as to the scope of an arbitration clause should be resolved in favor of arbitration,

construction of an arbitration clause remains subject to the contract law requirement that the court discern the intent of the parties from the language used in their agreement. Arbitration is mandatory only where the subject matter of the controversy falls within what the parties have agreed will be submitted to arbitration. It is the language of the agreement that defines the scope of an arbitration agreement.

Citigroup, Inc. v. Boles, 914 So.2d 23, 25 (Fla. 4th DCA 2005) (internal citations and quotations omitted); see also O’Keefe, 944 So.2d at 185 (“Arbitration clauses are creatures of contract. As a result, courts look to the intent of the parties as manifested in the contract to determine whether an arbitration clause compels arbitration of a particular dispute.”). Here, the arbitration clause is contained in Article 4(6) of the parties’ agreement, which provides:

This Agreement is a contingency fee contract and is subject to the principle that it be commercially reasonable and that the fees provided for shall be commercially reasonable and be no more than the amount permissible pursuant to rule 4-1.5 of the rules regulating The Florida Bar and case law interpreting that rule. If the amount of the fee is disputed, the [law firms] shall participate in mandatory binding arbitration. ... (emphasis added).

The plain language of this provision leaves no doubt as to the intended scope of the agreement to arbitrate; it reflects that the parties agreed to arbitrate only the amount of any fee owed to the law firms. Notably, this provision does not state that the parties agreed to arbitrate entitlement to a fee, nor does it state that the parties agreed to arbitrate disputes over the amount of compensation due to the law firms. Cf. Feldman v. Davis, 53 So.3d 1132 (Fla. 4th DCA 2011) (reversing order compelling arbitration of dispute between attorney and client over attorney’s entitlement to fees because the parties’ contingent fee agreement did not require arbitration of “all fee disputes,” but rather narrowly limited arbitration to the amount of the “probable fee” due to the attorney upon discharge by the client).

Entitlement to attorney’s fees is an entirely different issue than the amount of any fee due. Likewise, under the parties’ agreement, “compensation” encompasses more than attorney’s fees, such that a dispute over the amount of compensation is not necessarily the same as a dispute over the amount of fees. Accordingly, the trial court erred in construing the parties’ agreement to require arbitration of “any dispute over the amount of compensation due under the contract,” and it also erred in determining that the present dispute between the parties concerning entitlement to fees is arbitrable under the parties’ agreement.

In sum, we have no trouble concluding that the trial court erred in ordering arbitration. The more difficult question is the proper remedy. SBA suggested at oral argument that we could determine as a matter of law that the law firms are not entitled to any compensation under the agreement because it is undisputed that the Alliance litigation resulted in a judgment against SBA. Although we are skeptical of the merits of the law firms’ claim for compensation, we decline SBA’s invitation to effectively take up and rule on its pending motion for summary judgment in this appeal of a non-final order compelling arbitration. The merits of the law firms’ complaint for damages is a matter for the trial court to consider in the first instance on remand.

For these reasons, we reverse the trial court’s order compelling arbitration and remand for further proceedings on the law firms’ complaint for damages against SBA.

REVERSED and REMANDED for further proceedings.

PADOVANO, WETHERELL, and MARSTILLER, JJ., concur.

      . The agreement provided in pertinent part that if the jury found Alliance not liable on any claim, neither party would seek to retry or appeal the case. Alliance also agreed, in such circumstance, that it would not tiy to recover its claim for unpaid management fees even if it won its counterclaim for management fees.

      . Although not the basis of our decision, we note that the law firms' pleadings seem to establish that there is actually not a dispute over the amount of fees due under the parties’ agreement because, even if the law firms were correct that the agreement between SBA and Alliance resulted in SBA receiving "settlement proceeds” of $1,381,465, the law firms made a demand for their costs and expenses from those proceeds in that same amount, leaving $0 of net proceeds on which the law firms’ percentage-based contingent fee would be calculated.

      . We also reject this argument.