author:
WALLACE, Judge.
      NORTHCUTT, Judge, VILLANTI, Judge,

text:
    Corey Joshua ROCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5060.
    District Court of Appeal of Florida, Second District.
    Aug. 30, 2013.
    Rehearing Denied Sept. 27, 2013.

      Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.

      . Judge Northcutt has been substituted for Judge Whatley (who retired after serving on the original Rocker panel), and he has reviewed a video recording of the August 7, 2012, oral argument.

   WALLACE, Judge.

Upon consideration of the Appellant’s motion for rehearing filed November 28, 2012, it is ordered that the Appellant’s motion for rehearing is granted; this court’s opinion dated November 14, 2012, is withdrawn; and the attached opinion is substituted therefor.

Appellant’s motion for rehearing en banc is denied as moot.

Corey Joshua Rocker appeals his conviction and sentence for first-degree felony murder, a violation of section 782.04(l)(a)(2)(d), Florida Statutes (2008). Because the State failed to meet its burden of proving that Rocker intended for the predicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery, we conclude that the trial court erred in denying Rocker’s motion for judgment of acquittal, and we reverse his conviction for felony murder and remand for discharge.

I. FACTUAL BACKGROUND

The evidence at Rocker’s trial established that on January 24, 2008, sixteen-year-old Rocker made arrangements to meet the victim, Brennon Days, to purchase drugs. At about 6:48 p.m., Rocker contacted an acquaintance, Ryan Haynes, and told him he wanted to purchase drugs. When Haynes informed Rocker that he was unable to provide the drugs, Rocker requested the victim’s telephone number. According to the testimony elicited at trial, the victim sold drugs to Rocker at least three times in the past. At 6:55 p.m., Rocker called the victim.

Later that same night around 10 p.m., Rocker and his codefendant, Miterrio Banks, went to the home of another acquaintance, Golden Butler. While at Butler’s home, Rocker attempted to call the victim three times between 10:18 p.m. and 10:30 p.m. The victim returned Rocker’s phone calls around 10:32 p.m. Rocker then called the victim around 10:40 p.m., and the victim’s last phone call to Rocker was at 10:45 p.m. While Rocker was on the phone with the victim, Butler asked Rocker to whom he was talking and Banks told him to “shush,” to be quiet.

When Rocker and Banks arrived at Butler’s home, they had a pistol with them, and Butler testified that Rocker and Banks passed the pistol back and forth, “fondling it.” During their brief stay at Butler’s, neither Banks nor Rocker mentioned anything about using the pistol or robbing anyone. Before Rocker and Banks left Butler’s home, they asked Butler if he wanted to “go handle something.” Butler testified that the question could have meant, “Anything. Girls, money, anything.” Butler declined the invitation, and Rocker and Banks left Butler’s home with the pistol. Butler left his house almost immediately after Rocker and Banks left, walking about a car length behind them. Butler testified that he left the house to sell cocaine.

Butler walked behind Rocker and Banks toward the entrance of the neighborhood. Butler then saw the victim’s car drive up, and Butler testified that -Banks approached the car by himself and bent down at the driver’s side window. At this point, Butler did not see Rocker anywhere nearby. Butler heard Banks ask the victim, “Where the money at?” Butler then heard a gunshot. At the sound of the gunshot, Butler became frightened and ran back toward his house. He also saw Rocker- and Banks running away from the victim’s car. Banks told Rocker, “I think he’s dead.” The victim died from a gunshot wound to his head.

Neighbors testified that they saw people running from the scene after the shooting. Frederick and Lisa Dessaure testified that they heard a gunshot.- When Mr. Dess-aure looked outside his window, he saw one man running past his window. Mrs. Dessaure looked out from a different window and saw two people running past her house. Mr. Dessaure called 911 at about 10:50 p.m. Neither Mr. Dessaure nor Mrs. Dessaure could identify the people running past their house.

Henry Hall, Rocker’s uncle, testified that Rocker called him at about 11 p.m. and asked Hall to pick him up at a location close to where the shooting took place. When Hall picked up Rocker, he noticed police activity in the area and asked Rocker if he knew what happened. Rocker denied knowing why police cars were in the area. Shortly after Hall picked up Rocker from the neighborhood, Rocker was arrested and charged with first-degree felony murder. Although police found trace amounts of gun residue on Rocker’s hands the day after the shooting, testimony was presented that such trace amounts could come from merely handling a gun.

Rocker and Banks, his codefendant, were tried jointly. Following the close of the State’s case, Rocker moved for judgment of acquittal, arguing that the State failed to meet its evidentiary burden. The trial court denied the motion. Rocker renewed his motion at the close of all the evidence, and the trial court again denied it. The jury returned a verdict finding Rocker guilty of first-degree felony murder, and he was sentenced tó a mandatory term of life in prison. On appeal, Rocker argues that the trial court erred in denying his motion for judgment of acquittal because the State presented insufficient evidence that he acted as a principal in the attempted robbery of the victim.

II. DISCUSSION

A. The Standard of Review

When “the evidence is insufficient to warrant a conviction,” the trial court must enter a judgment of acquittal. Fla. R.Crim. P. 3.380(a). Our review of the trial court’s- ruling denying Rocker’s motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Evans v. State, 26 So.3d 85, 88 (Fla. 2d DCA 2010). “ ‘However, where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.’ ” Deparvine v. State, 995 So.2d 351, 376 (Fla.2008) (quoting Darling v. State, 808 So.2d 145, 155 (Fla.2002)). “ “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.’ ” Id. (quoting Darling, 808 So.2d at 155).

B. Analysis

First-degree murder includes the unlawful killing of a person when committed by someone engaged either in the perpetration of, or in the attempt to perpetrate, a robbery. § 782.04(l)(a)(2)(d), Fla. Stat. (2008). Rocker was convicted of first-degree murder as a principal under section 777.011, Florida Statutes (2008), on the theory that he aided and abetted Banks in the attempted robbery of the victim. In order to convict Rocker as a principal, the State had to prove two elements: (1) that Rocker intended for the robbery to be committed and (2) that Rocker assisted Banks in the commission of the offense. See McBride v. State, 7 So.3d 1146, 1148 (Fla. 2d DCA 2009) (citing Acord v. State, 841 So.2d 587, 589 (Fla. 2d DCA 2003)). Stated differently, the State was required to prove that Rocker aided and abetted the commission of the attempted robbery and that he had the requisite specific intent to participate in the offense. See Valdez v. State, 504 So.2d 9,10 (Fla. 2d DCA 1986).

Under the case law, Rocker’s mere presence at the scene, knowledge of the robbery attempt, and flight from the scene are insufficient to support his conviction as a principal for Banks’ conduct. See McBride, 7 So.3d at 1148 (citing A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991)); Valdez, 504 So.2d at 10. Granted, the State could show Rocker’s intent by circumstantial evidence. But if the State’s proof of intent rested solely upon circumstantial evidence, then the proof had to be not only consistent with Rocker’s guilt, but also inconsistent with his reasonable hypothesis of innocence. Valdez, 504 So.2d at 10.

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

Davis v. State, 90 So.2d 629, 631-32 (Fla.1956).

At the trial, the general outline of the events leading to the botched robbery and the victim’s death was essentially undisputed. However, the nature of the involvement of Rocker and Banks in these events was substantially different. Butler, the State’s only eyewitness to the attempted robbery and to the shooting of the victim, testified that Banks walked to the victim’s car, bent down to the driver’s side window, and demanded money. At that point, the pistol held by Banks discharged, fatally wounding the victim. The argument in footnote 5 of the dissent concerning the jury’s ability to assess the credibility of Butler’s testimony ignores the jury’s express finding of fact in the verdicts naming Banks — not Rocker — as the shooter. Physical evidence corroborated Butler’s identification of Banks — not Rocker — as the individual who approached the victim’s car and demanded money. A forensic technician found a latent fingerprint matching Banks’ left thumbprint on the exterior of the front door of the victim’s car. Thus the State presented direct evidence of Banks’ guilt as the perpetrator of the attempted robbery that resulted in the victim’s death.

The State’s case against Rocker was very different. Rocker was not carrying the pistol, and he made no demand for money. Butler did not place Rocker at or near the victim’s car during the attempted robbery and shooting. Indeed, the evidence at trial did not establish Rocker’s precise whereabouts or actions at the time that Banks was pursuing his robbery attempt. Of course, the State did establish that Rocker made a series of telephone calls to the victim designed to induce him to come to the neighborhood where the robbery occurred. If Rocker intended to commit the robbery, then one could conclude that Rocker assisted Banks by luring the victim to the scene. However, because the purpose of Rocker’s telephone calls is unknown, the critical question on the motion for judgment of acquittal was Rocker’s intent. On the one hand, the State’s theory of the case was that Rocker and Banks jointly planned to lure the victim to the neighborhood to rob him. On the other hand, Rocker’s hypothesis of innocence was that he contacted the victim to set up a drug transaction without prior knowledge that Banks intended to take advantage of the situation to rob the victim.

The State’s case against Rocker as a principal to the attempted robbery was purely circumstantial and can be summarized as follows: (1) Rocker made a series of phone calls designed to lure the victim to the place where he was ultimately killed; (2) Rocker was seen handling the murder weapon before the attempted robbery; (3) Rocker was seen going to the arranged location for the meeting where the murder occurred; (4) Rocker and Banks asked Butler if he wanted “to go handle something”; and (5) Rocker was seen running from the scene within minutes of the murder. Neither Rocker nor Banks testified at the trial. Nor did the State introduce evidence of any out-of-court inculpatory statements made by either man after the event. Butler was the State’s only eyewitness to the botched robbery perpetrated by Banks. But Butler’s testimony did not provide any evidence concerning Rocker’s intent. Furthermore, beyond the general motive for robbery that can be inferred from mere commission of the crime, no evidence existed that Rocker had a vendetta against the victim or had expressed a need or desire for money that could have motivated the crime and provided evidence of Rocker’s intent. Thus, to avoid a judgment of acquittal, the State had to present evidence that was not only consistent with Rocker’s guilt but that was also inconsistent with his reasonable hypothesis of innocence. See Valdez, 504 So.2d at 10.

It was undisputed at trial that Rocker placed several telephone calls to the victim to induce him to come to the neighborhood where the attempted robbery and murder occurred. Nevertheless, Rocker cannot be properly convicted as a principal based on this evidence alone. “Merely creating circumstances or conditions that allow another to commit an independent offense is not enough to establish one as a principal to that offense.” C.D. v. State, 2 So.3d 994, 995 (Fla. 2d DCA 2008). Rocker’s telephone calls to the victim certainly caused the circumstances or conditions that enabled Banks to pursue his attempt to rob the victim. However, Rocker’s placement of the telephone calls is insufficient to establish his liability as a principal for that offense.

Moreover, as we have already seen, Rocker’s placement of the telephone calls to the victim was subject to more than one explanation. The calls may have been part of a ruse to set up a robbery of the victim. However, the calls may also have been nothing more than an attempt to set up a purchase of drugs. The evidence showed that Rocker had bought drugs from the victim at least three times in the past — • and probably more — without incident. The telephone calls cannot support the conviction of Rocker as a principal absent evidence of his specific intent that the robbery occur. The telephone calls themselves are not sufficient to establish such intent. See Chaudoin v. State, 362 So.2d 398, 401 (Fla. 2d DCA 1978); Grover v. State, 581 So.2d 1379, 1381 (Fla. 4th DCA 1991) (finding that “it is the tendency to establish one fact to the exclusion of contrary facts which gives circumstantial evidence the force of proof ... [,] and when circumstances are reasonably susceptible of two conflicting inferences they are probative of neither [guilt nor innocence]”); Fox v. State, 469 So.2d 800, 802 (Fla. 1st DCA 1985).

Additionally, the record reflects that before Rocker called the victim from Butler’s residence, he called Haynes. Haynes testified for the State at trial that Rocker had called him seeking to buy drugs. Haynes had just been released from jail, and he was confined to his residence; Haynes told Rocker that he was unable to supply anything. During Rocker’s telephone conversation with Haynes, Rocker asked for the victim’s telephone number. Haynes furnished the number, and Rocker then telephoned the victim. This evidence suggests that Rocker’s intent in later contacting the victim was to buy drugs, not to commit a robbery.

It was also undisputed at trial that Rocker and Banks shared possession of a pistol at Butler’s residence. But Rocker’s joint possession of a pistol with Banks does not establish that Rocker intended to rob the victim. Butler testified that he did not consider the possession of a pistol by Rocker and Banks to be unusual. On the contrary, he said that the possession of guns is common in his neighborhood. Our common sense and experience tells us that the presence of firearms at drug transactions is a frequent occurrence. Thus the possession of a firearm by Rocker and Banks is just as consistent with a planned drug buy as it is with a proposed robbery.

Next, Butler testified that he observed Rocker walking with Banks to the arranged location for the planned drug buy. However, similar to Rocker’s joint possession of a pistol with Banks, Rocker’s act of approaching the scene with Banks is just as consistent with the theory that he was participating in a drug transaction as it is with the theory that he was participating in a robbery. In the absence of additional proof, such evidence is insufficient to prove Rocker’s intent to commit a robbery.

As evidence of Rocker’s intent, the State highlights that before Rocker and Banks left Butler’s house, they asked him if he wanted to “go handle something.” However, this request is vague at best and subject to more than one explanation. Butler did not infer from the inquiry the nature of the activity that was being proposed. On direct examination, he testified that it could have meant, “Anything. Girls, money, anything.” When asked about the inquiry again on cross-examination, Butler agreed that it could have meant “[g]irls, drugs, anything.” Notably, Butler also testified that he did not think that whatever it was he was being asked if he wanted to “handle” would involve the pistol that Rocker and Banks had already displayed to him. The inquiry at issue is just as consistent with Rocker’s innocence as it is with his guilt.

In addition, an assumption that an inquiry to Butler about “handling something” necessarily referred to a planned robbery of the victim is at odds with the known facts in two respects. First, Butler was adamant that neither Rocker nor Banks said anything to him about robbing someone. Second, assuming that Rocker and Banks were planning to rob the victim, they had no reason to add a third person to their group. Rocker and Banks had only one gun; they did not require additional personnel. If the two men had involved Butler in their hypothetical plot, Butler’s involvement would have only resulted in reducing the shares of the loot for Rocker and Banks from one-half to one-third.

Last, the State points to Rocker’s flight from the scene within minutes of the murder as evidence of his intent to commit a robbery. While Butler testified that he observed Rocker and Banks running away from the victim’s car after Banks shot the victim, this evidence is also unavailing. Flight from the scene is insufficient to support a conviction of an accused as a principal. Staten v. State, 519 So.2d 622, 624 (Fla.1988) (finding that “ ‘mere presence at the scene ... or a display of questionable behavior after the fact, is not sufficient to establish participation [as a principal]’ ” (quoting Collins v. State, 438 So.2d 1036, 1038 (Fla. 2d DCA 1983))); see also McBride, 7 So.3d at 1148; A.S.F. v. State, 70 So.3d 754, 757 (Fla. 4th DCA 2011); A.B.G., 586 So.2d at 447; J.H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979).

Moreover, Rocker may have fled the scene for a variety of reasons. He may have been concerned about his culpability in the failed drug transaction. The unexpected discharge of the pistol wielded by Banks provided ample cause for fright and flight. Butler, who was not involved in the purchase of drugs from the victim or in the attempted robbery, also fled the scene. The evidence of Rocker’s flight does not provide evidence of his intent to participate in the robbery of the victim.

III. CONCLUSION

Based on the foregoing review of the evidence, which was purely circumstantial, we find that the State did not present facts inconsistent with Rocker’s reasonable hypothesis of innocence. The State failed to present any evidence indicating Rocker’s intent. Therefore, to reach the conclusion that the evidence was sufficient to support Rocker’s conviction as a principal would require an impermissible stacking of inferences. See I.Y.D. v. State, 711 So.2d 202, 203 (Fla. 2d DCA 1998). Here, “one could intuitively conclude that [Rocker] might be guilty. However, ‘guilt cannot rest on mere probabilities.’” Davis v. State, 761 So.2d 1154, 1159 (Fla. 2d DCA 2000) (quoting Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972)). Accordingly, we reverse Rocker’s judgment and sentence and remand for his discharge.

Reversed and remanded for discharge.

NORTHCUTT, J., Concurs with opinion.

VILLANTI, J., Dissents with opinion.

NORTHCUTT, Judge,

Concurring.

I wholly agree with the majority opinion, but I write' separately for two reasons. The first is to clarify the precise way in which the State’s evidence was insufficient to present the question of Rocker’s guilt or innocence to the jury. The majority and the dissent quite properly focus on whether the evidence was sufficient to prove that Rocker intended the robbery of Day and that he assisted that endeavor. These were the elements necessary to establish Rocker’s guilt as a principal to the robbery attempt. As the dissent points out, the question of intent — that is, what did the defendant intend — is usually for the jury. But the State’s case failed at a more basic level: nothing in the evidence showed that Rocker was even aware that Banks intended to rob Day.

The question of knowledge is not the same as that of intent. As both of my colleagues recognize, a defendant’s mere knowledge that another plans to commit a crime is insufficient to prove that the defendant was a principal to that crime, i.e., that he intended for the crime to be carried out. But it is certainly also true that the defendant could not be a principal to the crime without prior knowledge of it. In other words, knowledge coupled with other circumstances may or may not be sufficient to show intent, but intent cannot be circumstantially proved unless one or more of the circumstances demonstrate knowledge.

Thus, before the jury could be called upon to decide whether Rocker intended for Day to be robbed, the State was obliged to demonstrate that Rocker knew of Banks’ intention to do so. It failed in that proof because none of the State’s circumstantial evidence, whether examined singly or collectively among the “surrounding circumstances”, demonstrated Rocker’s knowledge of Banks’ plan. None of the circumstances even preponderated over the reasonable theory that Rocker was unaware of Banks’ intention, let alone refuted it. As such, the evidence could not, as a matter of law, support a jury’s determination that Rocker knew of the planned robbery attempt beyond a reasonable doubt.

With that said, my second purpose is to address the dissent’s mistaken interpretation of the special standard of review applicable to circumstantial evidence cases. The basis of that misunderstanding can be seen in the dissent’s quotation from a two-sentence passage in State v. Law, 559 So.2d 187, 188 (Fla.1989). The dissent writes:

“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). However, “[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine,” and the jury’s decision will not be reversed where there is substantial, competent evidence supporting it. Id. (emphasis added)

The dissent seizes on the second sentence as justification for treating the circumstantial evidence rule as purely a jury matter. It carries this premise forward to embrace a highly deferential standard of review in circumstantial evidence cases.

In so doing, it has overlooked that Law was written for the very purpose of reconciling the roles of the judge and jury in a circumstantial criminal case — and it rejected the view advanced by the dissent.

The Law court described the issue before it as “whether a trial judge may send a criminal case to the jury if all of the state’s evidence is circumstantial in nature and the state has failed to present competent evidence sufficient to enable the jury to exclude every reasonable hypothesis of innocence.” 559 So.2d at 188. Put another way, the court wrote, “does the common law circumstantial evidence rule apply when a trial judge rules on a motion for judgment of acquittal?” Id.

In Law, the state contended that the rule did not apply to a motion for judgment of acquittal. It argued that because a defendant moving for judgment of acquittal admits all reasonable inferences from the evidence in favor of the state, the case should go to the jury regardless of whether the state’s evidence is inconsistent with the defendant’s reasonable hypothesis of innocence. Id. at 188. At bottom, this is the same reasoning by which the dissent concludes that in this case the State met its burden of introducing evidence that is inconsistent with Rocker’s theory of innocence simply by tendering evidence from which the jury could infer his guilt.

But, of course, the fact that a circumstance might support an inference of guilt does not mean that it does not also support an inference of innocence. If the circumstantial evidence rule only required the state to submit evidence from which the jury could infer guilt, the standard of review could hardly be considered “special”, because circumstantial cases would be like any other. Rather, to satisfy the circumstantial evidence rule, the state’s evidence must be truly inconsistent with the defendant’s theory of innocence; it must contradict it or exclude it as a reasonable possibility.

As we know, the Law court rejected the state’s argument. It held that the state’s burden is “to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Id. at 189. Only after that burden is met does it fall to the jury to determine whether the evidence is sufficient to “exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Id. Indeed, the court wrote that if the state does not offer evidence that is inconsistent with the defendant’s hypothesis of innocence, “ ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” Id. at 189 (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974) (alteration in original)).

Thus, the Law court expressly agreed with the following statements in Fowler v. State, 492 So.2d 1344, 1347 (Fla. 1st DCA 1986):

[I]t is for the court to determine, as a threshold matter, whether the state has been able to produce competent, substantial evidence to contradict the defendant’s story. If the state fails in this initial burden, then it is the court’s duty to grant a judgment of acquittal to the defendant as to the charged offense, as well as any lesser-included offenses not supported by the evidence.

559 So.2d at 189 (emphasis supplied) (quoting Fowler, 492 So.2d at 1347).

The upshot is that it is a judicial function to determine in the first instance whether the circumstances shown by the state’s evidence contradict the defendant’s reasonable hypothesis of innocence. If it does not, as a matter of law the jury cannot infer the defendant’s guilt. To be sure, when making that assessment the court must give the state the benefit of any conflicts in the evidence. But it is not, as the dissent maintains, a question of whether the jury might reasonably infer in favor of the state over the defense. The circumstances either contradict the defense theory' or they do not. If the latter, it is the trial court’s duty to grant a judgment of acquittal. Failing that, it is the appellate court’s duty to reverse.

In the ease before it, the Law court examined the record and identified specific aspects of the state’s evidence that contradicted the defendant’s theories of innocence. For example, the defendant’s theory that the fatal blow was delivered by the young victim’s mother, who was the last one to check on him the night he died, “was refuted by evidence that the fatal blow likely had been delivered well before [the mother] entered the room to check on the child’s breathing.” Id. at 190 (emphasis supplied). Also, the court noted that an expert pathologist gave testimony “refuting” Law’s theory that the victim’s fatal subdural hematoma could have been caused during roughhousing with the victim’s older brother. Id. The pathologist’s testimony was also “sufficiently at odds” with Law’s theory that the fatal injury and others present on the child’s body could have been caused by a series of accidental falls. Id. at 190-91. The defense theory that Law may have accidentally caused the boy’s head injury while the two were playing on the night of his death was contradicted by the defendant’s own testimony as well as that of the pathologist. Id. at 191. The Law court concluded that, because the state presented evidence that contradicted the defendant’s theories of innocence, the case was properly submitted to the jury.

As did the supreme court in Law, in this case the majority has painstakingly examined the State’s circumstantial evidence. It has accurately concluded that none of that evidence contradicted the theory that Rocker’s involvement in the fatal incident was as the organizer of an intended drug transaction, not as a principal to an attempted robbery. As such, the evidence was legally insufficient to support Rocker’s conviction no matter how strongly it might have suggested his guilt.

In contrast, for the most part the dissent recites circumstances that merely supported an inference of Rocker’s guilt without regard to whether that evidence contradicted his theory of innocence. This is consistent with the dissent’s assertion that when assessing the legal sufficiency of the evidence we must defer to the jury’s ability to draw inferences, but it contravenes the circumstantial evidence rule as prescribed by the supreme court.

To be fair, I note that in its recitation of circumstances the dissent mentions three that it suggests were at odds with Rocker’s theory of events. First, it posits that “if Rocker and Banks had simply wanted to purchase drugs that night, they could have purchased them from Butler, who testified that he left his house to sell cocaine.” But this is an inference improperly stacked atop two others, i.e., that Rocker and Banks knew that Butler had cocaine to sell, and that Butler would have sold it to them. No evidence supported this. To the contrary, the evidence suggested good reasons why Butler would have kept to himself his own intention to engage in a drug deal. For one thing, in his testimony Butler noted that Rocker was not a close friend and that Banks was merely an acquaintance who arrived with Rocker unexpectedly. Butler also testified that he did not want to get involved with whatever Rocker and Banks were about that evening because he was “straight”; he was on probation and did not want to have it violated. And, as we know, Butler had his own business to transact. Having arranged to sell cocaine to a buyer — Butler testified that he was going to meet a regular customer — it likely was not in his best interest to instead offer the drugs to Rocker and Banks. In short, the fact that Butler intended to sell cocaine that night in no way contradicted the theory that Rocker was planning a cocaine buy from Brennon Days.

Next, the dissent points out that “although Rocker was the person who had purchased cocaine from the victim in the past, when the victim drove to the neighborhood, Rocker apparently hid.” It is worth noting that the testimony did not establish that Rocker was the person who had purchased cocaine from Days in the past. Days was Rocker’s drug dealer, but no one testified that Rocker was his only customer or that he had never sold to Banks. Indeed, although Rocker apparently made calls to arrange a cocaine buy from Days that night, no evidence suggested that Days was expecting to meet only Rocker — or, for that matter, that Rocker was the prospective buyer. All told, there was nothing to suggest that Banks was not an intended participant in the transaction from the start. Finally on this point, Butler did not testify that Rocker hid; rather, he lost sight of Rocker in the dark and did not know his whereabouts when the shooting occurred. But even if Rocker could be said to have hid, this does not mean that he was hiding from Days. It would have been perfectly reasonable for him to stand back in the shadows to avoid being observed while the younger Banks made an illegal drug purchase in a public place. Again, these circumstances were fully consistent with Rocker’s theory of innocence; they did not undermine it in any way.

Finally, the dissent observes: “As the trial court noted, ‘you don’t go up to somebody that you’re going to do a dope deal with and say where’s the money at.’ ” The fallacy in this argument is plain to see: Rocker was not the one who said it. There was no evidence to show that he heard it said, and there was no evidence suggesting that he knew it would be said. That Banks demanded money from Days and then shot him simply did not refute the defense theory that Rocker’s involvement was purely as the organizer of a drug transaction.

In sum, the three members of this panel have separately and meticulously combed through the record, and none of us has identified any evidence that contradicted Rocker’s theory of innocence. To the contrary, all of the circumstantial evidence— every last bit of it — was fully consistent with Rocker’s innocence. Accordingly, we are duty bound to reverse his conviction.

VILLANTI, Judge,

Dissenting.

I respectfully dissent because I disagree with the majority’s conclusion that, as a matter of law, “the State failed to meet its burden of proving that Rocker intended for the predicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery.”

Rocker was convicted of first-degree murder as a principal on the theory that he aided and abetted Banks in the attempted robbery of the victim. To be a principal in a crime, a person “ ‘must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.’ ” State v. Tovar, 110 So.3d 33, 36 (Fla. 2d DCA 2013) (quoting L.J.S. v. State, 909 So.2d 951, 952 (Fla. 2d DCA 2005)). Because intent is a state of mind, it is rarely ascertainable by direct evidence, State v. Stenza, 453 So.2d 169, 171 (Fla. 2d DCA 1984), and it is usually proven through inference and circumstantial evidence, Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA 2005).

When a conviction is based entirely upon circumstantial evidence, the sufficiency of the evidence is measured on appeal by a “special” standard of review. Bronson v. State, 926 So.2d 480, 482 (Fla. 2d DCA 2006). “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). The State does not have to conclusively rebut every possible variation of events which could be inferred from the evidence; it only has to introduce competent evidence inconsistent with the defendant’s theory of events. Id. “The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine,” and the jury’s decision will not be reversed when there is substantial, competent evidence supporting it. Id.

“ ‘Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be, deniedf.]’ ” Kocaker v. State, 119 So.3d 1214 (Fla.2013) (quoting Durousseau v. State, 55 So.3d 543, 556-57 (Fla.2010)); see also Orme v. State, 677 So.2d 258, 262 (Fla.1996) (“[T]he sole function of the trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the finder of fact to resolve.”). Stated another way, “[wjhether to grant a motion for judgment of acquittal hinges on the sufficiency of the evidence presented at trial and what factual findings the jury could ‘fairly and reasonably infer’ from that evidence.” Grohs v. State, 944 So.2d 450, 456 (Fla. 4th DCA 2006). I recognize that the State cannot defeat a motion for judgment of acquittal by accepting the defendant’s. uncontradicted theory of the facts and simply arguing that a competing theory is equally reasonable. See Ginn v. State, 26 So.3d 706, 710 (Fla. 2d DCA 2010). But that is not what happened in this case.

The issue in this case was Rocker’s intent. Intent can be proven by a combination of surrounding circumstances from which the jury can reasonably infer the defendant’s guilt. Salter v. State, 77 So.3d 760, 763 (Fla. 4th DCA 2011) (stating that the question of a defendant’s intent to participate in a crime is one for the jury). As this court has stated:

“[A] trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state’s failure to prove mental intent.” Hardwick v. State, 630 So.2d 1212, 1214 (Fla. 5th DCA 1994) (quoting Brewer v. State, 413 So.2d 1217, 1220 (Fla. 5th DCA 1982)). “Whether one had intent is generally a question given to a jury, for reasonable men may differ in determining intent when taking into consideration the surrounding circumstances.” State v. Herron, 70 So.3d 705, 706 (Fla. 4th DCA 2011).

Tovar, 110 So.3d at 36; see also State v. Hurley, 676 So.2d 1010, 1011 (Fla. 2d DCA 1996); Washington v. State, 737 So.2d 1208, 1215-16 (Fla. 1st DCA 1999) (explaining that judgment of acquittal is rarely granted on the issue of intent “because proof of intent usually consists of the surrounding circumstances of the case [and] reasonable persons might differ as to facts tending to prove ultimate facts or inferences to be drawn from the facts”).

In this case, the majority’s approach disregards this admonition and decides the issue of intent by analyzing the facts of the case one by one, instead of in toto taking into account the surrounding circumstances. After analyzing the facts one by one, the majority opinion culminates in the conclusion that the State did not “present any evidence indicating Rocker’s intent.” This conclusion ignores the fact that the State’s evidence of all the circumstances surrounding the event is what the jury could legally rely on to find such an intent. See generally Tovar, 110 So.3d at 36 (reversing judgment of acquittal after concluding that trial court had improperly “operat[ed] on its belief [of defendant’s] version” of his intent and removed that credibility determination from the jury).

Here, the State met its burden of introducing evidence inconsistent with Rocker’s hypothesis of innocence which would then allow the jury to infer his intent to commit the crime. That evidence showed that Rocker aided in commission of the attempted robbery by making repeated phone calls to the victim to get the victim to drive to the neighborhood — a neighborhood he neither lived in nor frequented. While Rocker was on the phone with the victim, Butler asked who he was talking to and Banks told him, “shush,” to be quiet, which suggested that Rocker and Banks were working together to lure the victim. As the trial court noted in its ruling, a jury could conclude that this was evidence of “shushing the other guy ... so the guy who is the object of the robbery doesn’t know there’s going to be multiple people there.” Rocker and Banks brought a gun with them to Butler’s home and were passing it back and forth, “fondling it.” Right before they left Butler’s house, they asked Butler if he wanted to “go handle something.” Notably, although Rocker was the person who had purchased cocaine from the victim several times in the past, when the victim drove to the neighborhood Rocker did not approach the vehicle; he let Banks approach the victim and apparently hid. When Banks approached the victim, he did not ask the victim about drugs. Instead, Banks asked only, “Where the money at?” As the trial court noted, “you don’t go up to somebody that you’re going to do a dope deal with and say where’s the money at.” The shooting followed. These facts contradicted the defense theory that Rocker simply intended to purchase drugs that night and did not intend to participate in the victim’s robbery. Finally, after the victim was shot, Rocker was seen running away from the scene with Banks. While mere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction, elements of assistance of the perpetrator and intent may be proven by a combination of surrounding circumstances. Salter, 77 So.3d at 763; T.S. v. State, 675 So.2d 196, 198 (Fla. 4th DCA 1996). For example, evidence of a person’s flight away from a crime scene is evidence of consciousness of guilt. Brown v. State, 85 So.3d 1160, 1163 (Fla. 4th DCA 2012). Based on the totality of the evidence “a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). When viewed in context and in toto, as found by the trial court in performing its gatekeeping function, there was sufficient evidence that contradicted Rocker’s theory that this was simply a consensual drug deal gone bad. Therefore, I conclude that the trial court did not err in denying Rocker’s motion for judgment of acquittal, and I would affirm.

Finally, I note that in Knight v. State, 107 So.3d 449 (Fla. 5th DCA 2013), the Fifth District recently made a compelling argument advocating that the supreme court abandon the use of a “special” circumstantial evidence standard of review in wholly circumstantial evidence cases. Knight also rejected the manner in which this court and other district courts have applied that “special” circumstantial evidence standard to state-of-mind elements such as knowledge, intent, or premeditation, and it certified conflict to the supreme court. Id. at 462-66. The Fifth District articulated the difficulty posed by applying this “special” standard of review to state-of-mind elements: “a person can always claim to have a different state of mind than his or her actions suggest. And, when you remove the role of the fact-finder (in the courtroom) and view the explanation solely as a logic exercise on a cold appellate record, the explanation will almost always appear plausible.” Id. at 464. In fact, this case demonstrates the problem with applying this “special” standard of review to state-of-mind elements such as intent. Hence, I too would encourage the supreme court to reconsider Florida’s use of the “special standard of review” in circumstantial evidence cases for all of the reasons discussed in Knight.

      . Rocker raised several arguments on appeal; however, because we conclude that his conviction warrants reversal on this ground, we need not address the merits of the other grounds raised.

      . Another possible scenario is that Banks acted on the spur of the moment in committing his robbery attempt.

      . Butler did not specify whether Rocker or Banks asked him this question. Unfortunately, neither the prosecutor nor defense counsel requested clarification on this point.

      . Of course, the only testimony to this fact comes from Butler, who was Rocker's childhood friend and who barely knew Banks. And this testimony seems to be contradicted by the State's evidence that Rocker had gunshot residue on his hands upon arrest while Banks did not. The upshot of this is that the jury in this case was properly permitted to assess the credibility of Butler’s testimony-a credibility determination that should not be taken from it.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Javier CASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4915.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Rehearing Denied Oct. 21, 2013.

      Michelle Walsh of Law Offices of Michelle Walsh, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

The main issue presented in this appeal is whether the act of tying the victim’s hands while appellant committed a robbery constitutes the act of kidnapping, where appellant did not untie the victim after the conclusion of the crime. Appellant moved for judgment of acquittal on this ground, which the trial court denied. We agree and affirm his conviction. We also find no merit in the remaining issues raised.

Four men were involved in a series of armed robberies and kidnappings, two of which' appellant directly participated in. These two robberies occurred at two liquor stores. In each of the robberies, one of the robbers approached the store clerk with gun drawn. In the first robbery, the store clerk dropped to the floor and did not move, but the robbers tied his hands behind his back with a zip tie. After the robbery was completed, the clerk could not untie himself and had to go to another store to get- help to untie his hands and to call the police. In the second robbery, involving two clerks, the robbers ordered both clerks to the ground and tied their hands behind their backs. Neither of those clerks could untie themselves until the police arrived.

Appellant Castro was charged with three counts of robbery with a firearm, kidnapping with a firearm, racketeering, and conspiracy to racketeer. At trial, he moved for judgment of acquittal on the kidnapping charges on the basis that the tying of the victim’s hands did not constitute a kidnapping. The trial court denied the motion. A jury then convicted him of all counts. The trial court sentenced him to thirty-year concurrent terms on the racketeering charges; life with a twenty-year minimum mandatory as to one of the counts of robbery and kidnapping; and life for the remaining two kidnappings, concurrent with fifteen-year sentences on the remaining two robbery counts. From his conviction and sentence, he appeals.

In reviewing a ruling on a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

Kidnapping is defined in section 787.01(l)(a)2., Florida Statutes (2008), as “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to ... [cjommit or facilitate commission of any felony.” In Faison v. State, 426 So.2d 963 (Fla.1983), our supreme court developed a three-part test to determine whether a defendant’s actions constitute kidnapping where the confinement is done to facilitate commission of another crime. Such confinement constitutes a kidnapping when it is: (1) not slight and inconsequential and merely incidental to the other crime; (2) not of the kind inherent in the nature of the other crime; and (3) has some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. Id. at 965-66.

coürt further explained the type of confinement which would constitute kidnapping when done in facilitating com-comof another crime in Berry v. State, 668 So.2d 967 (Fla.1996). There, the vic-vicwere hog-tied during a robbery, and the robbers left without untying them. The Florida Supreme Court held the act of tying someone up constitutes confinement within the meaning of the kidnapping stat-statThe court held that the first require-requireof Faison did not require movement of the victim to constitute kidnapping. “[I]t is the confinement of the victims rath-raththan their movement which justifies the kidnapping conviction.” Id. at 970. In applying the test, the court explained:

For example, if Berry and the others had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand. In both hypotheticals, any confinement accompanying the robbery would cease naturally with the robbery. By contrast, in this case the robbers left the scene of the robbery unthout untying the victims, thereby leaving them both in a precarious and vulnerable state for a period beyond the robbery. Like the situation where the victim of a forcible felony is barricaded or locked in a room or closet, the confinement continued even after the robbery had ceased. This is not the sort of confinement that is incidental to robbery.

Id. at 969 (emphasis supplied).

In Berry, the robbers’ act of leaving the victims tied up constituted kidnapping. Likewise, in this case, the act of leaving the victims tied up constituted kidnapping. Although the victims were able to rise to their feet, they could not immediately summon help without having someone untie them. They were still left in a precarious position which made the crime substantially easier to commit and reduced the risk of detection. In fact, in each case the victims could not call the police immediately after the robbery because their hands were tied. Thus, their confinement did not end with the completion of the robbery. They were still unable to help themselves or call the police until someone untied them.

Appellant relies on Lewis v. State, 50 So.3d 86 (Fla. 4th DCA 2010), but that case is clearly distinguishable. There, the defendant entered a check cashing store and, using a gun, forced the manager to go into a bathroom and placed her in handcuffs. Later he let one hand loose of the handcuff, and the manager hit a silent panic button. When police arrived, the defendant escaped. At the time of the escape, the victim was neither barricaded nor bound. Thus, her confinement ended with the end of the robbery. Here, in contrast, the victims were still confined within the meaning of Berry when the robbery was complete.

The court correctly denied the motion for judgment of acquittal as to the kidnapping charges. The evidence proved all three Faison factors. We affirm the kidnapping convictions.

Appellant raises two other issues which we find without merit. First, he argues that certain of the prosecutor’s remarks in closing argument were error. Defense counsel, however, did not object to those comments, and we do not find that they constituted fundamental error. In particular, the prosecutor’s reference to the four defendants as a “criminal gang” was not impermissible in this context where the defendants, who were tried together, were accused of RICO violations for the string of robberies in which they were involved. The prosecutor’s reference to a “criminal gang” was merely fair reply to the defendant’s argument that the defendants were not a RICO “enterprise.” Under Florida RICO, an “enterprise” is defined as:

[A]ny individual ... or group of individuals associated in fact although not a legal entity.... A criminal gang, as defined in s. 874.03, constitutes an enterprise.

§ 895.02(3), Fla. Stat. (2012) (emphasis supplied).

Further, the reference in closing argument to all of the defendants’ nationalities, which was also not objected to, was relevant to the issue of the RICO enterprise. As was explained in Gross v. State, 765 So.2d 39, 45 (Fla.2000), to prove an enterprise under Florida RICO, the state has to establish two elements: “(1) an ongoing organization, formal or informal, with a common purpose of engaging in a course of conduct, which (2) functions as a continuing unit” (emphasis supplied). In Gross, because the defendant and his associates committed the various crimes for more than a year and discussed and coordinated their crimes in advance, there was evidence to support the RICO convictions. Applying Gross to this case, the prosecutor’s reference to the fact that the co-defendants were all Honduran, knew each other, and each robbery was planned and committed in a similar fashion supported the state’s contention that they were part of the same “enterprise” for RICO purposes.

For the foregoing reasons, we affirm the conviction and sentences.

STEVENSON and TAYLOR, JJ., concur.

      . Section 874.03(1), Florida Statutes (2008), defines a "criminal gang” as "a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols ...”


author: PER CURIAM.

text:
    Erick B. MANN, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1502.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2013.
    Erick B. Mann, Bristol, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, MAY and LEVINE, JJ., concur.


author: SILBERMAN, Judge.

text:
    ZEPHYR HAVEN HEALTH & REHAB CENTER, INC.; Sunbelt Health Care Centers, Inc.; Adventist Care Centers; Adventist Health System/Sunbelt, Inc.; and Adventist Health System Sunbelt Healthcare Corporation (as to Zephyr Haven Health & Rehab Center, Inc.), Appellants, v. Edna HARDIN, by and through Christopher R. Hardin, Attorney In Fact, Appellee.
    No. 2D12-2647.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 2013.

      Amy L. Miles and Mark B. Hartig of McCumber, Daniels, Buntz, Hartig, & Puig, P.A., Tampa, for Appellants.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Zephyr Haven Health & Rehab Center, Inc., and the other named appellants (all appellants are collectively referred to as “the Owners”) challenge the trial court’s order denying their motion to compel arbitration of Edna Hardin’s claims against them. Because Hardin failed to establish that the arbitration agreement should not be enforced, we reverse.

I. Factual and Procedural Background

Hardin was admitted to the Owners’ nursing facility on November 9, 2010. Two days later, she signed admissions documents, including an arbitration agreement. The arbitration agreement was conspicuously labeled and specified that its execution was not a precondition to receiving care at the nursing facility. It further specified that in any arbitration proceeding, the nursing facility would pay the first $500 of arbitration fees and costs and that all additional expenses would be split with the nursing facility responsible for 60% and Hardin responsible for 40%. The agreement provided that the parties would be responsible for their own attorney’s fees.

One year later Hardin sued the Owners, alleging a variety of claims arising out of the care she received at the nursing facility. The Owners responded with a motion to dismiss the complaint and to compel arbitration. At a hearing on the motion, the Owners submitted the arbitration agreement into evidence and argued that the agreement required arbitration of Hardin’s claims. Hardin responded that although there was no dispute that she signed the agreement, it would be impossible for her to perform under the agreement because she could not afford to pay 40 percent of the arbitration expenses. She provided to the trial court several invoices from unrelated arbitration proceedings. Although the invoices do not appear to have been admitted into evidence, Hardin argued that they were examples of the fees and costs that could be incurred in arbitration. Hardin also presented testimony from her stepson, who served as her caretaker, regarding her strained finances. No other evidence was presented.

Argument at the hearing largely addressed the doctrines of impossibility of performance and unconscionability. Although Hardin asserted that the issue was one of impossibility, the Owners maintained the matter should be analyzed instead under the doctrine of unconsciona-bility. After the hearing, the trial court issued an order denying the motion to compel arbitration. The order found both that it was “financially impossible” for Hardin to participate in arbitration and that if Hardin “were forced to pay 40 percent of arbitration costs, based on her income and her expenses, the amount would be unconscionable.”

In this appeal, the Owners challenge the sufficiency of the evidence presented to the trial court and the court’s findings that the arbitration agreement was unconscionable and impossible for Hardin to perform. Furthermore, the parties dispute the application of the United States Supreme Court’s holding in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Our review of the trial court’s factual findings is to determine whether those findings are supported by competent, substantial evidence; our review regarding the validity of the agreement and the trial court’s application of the law to the facts is de novo. Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 632 (Fla. 2d DCA 2008); Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003).

II. Unconscionability

To succeed in claiming that a contractual provision is unconscionable, a party must demonstrate both procedural and substantive unconscionability. Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264 (Fla. 2d DCA 2004). Procedural unconscionability addresses “the manner in which the contract was entered,” including “consideration of facts such as the relative bargaining power of the parties and their ability to understand the contract terms.” Id. at 265. Substantive un-conscionability, on the other hand, requires assessment of the contract’s terms to “determine whether they are so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284-85 (Fla. 1st DCA 2003) (quoting Belcher v. Kier, 558 So.2d 1039, 1043 (Fla. 2d DCA 1990)). Where the party alleging unconscionability establishes only one of the two prongs, the claim fails. See, e.g., Eldridge v. Integrated Health Servs., Inc., 805 So.2d 982, 982 (Fla. 2d DCA 2001) (“[W]e do not reach the issue of substantive unconscionability because [the appellant] failed to establish the necessary element of procedural un-conscionability.”).

In the context of unconscionability, the issue of the financial cost of arbitration is generally considered substantive, rather than procedural. See Stewart Agency, Inc. v. Robinson, 855 So.2d 726, 728 (Fla. 4th DCA 2003). Hardin’s alleged inability to pay that cost was the basis of her opposition to the motion to compel arbitration. Thus, while she addressed substantive unconscionability, she failed to present evidence of procedural unconscion-ability. Accordingly, to the extent the trial court determined that the agreement is unenforceable based on unconscionability, it erred.

III. Impossibility of Performance

Impossibility of performance “is a defense to nonperformance and refers to situations where the purpose for which the contract was made has become impossible to perform.” Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1216 (Fla. 2d DCA 2012). When determining impossibility, courts focus on “ ‘whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract.’ ” Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011) (quoting 6 Williston, Contracts (Rev. ed.) § 1931 (1938)). Where the risk was foreseeable when the agreement was made and could have been expressly addressed in the agreement, “[t]he doctrine of impossibility of performance should be employed with great caution.” Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th DCA 1998).

Even where performance actually becomes impossible after execution of the agreement, the doctrine cannot be invoked as a defense if “knowledge of the facts making performance impossible” was available at the inception of the agreement to the party claiming impossibility. Id. (citing Shore Inv. Co. v. Hotel Trinidad, 158 Fla. 682, 29 So.2d 696 (1947)). In the specific context of arbitration, courts are “not empowered to rewrite a clear and unambiguous provision, nor should [they] attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993). Further, “unexpected difficulty or expense will not excuse a party to a contract from performance” of an agreement to arbitrate. Id.

After reviewing the evidence submitted to the trial court and the applicable law, we cannot uphold the trial court’s decision to deny the motion to compel arbitration on the basis of financial impossibility. First, Hardin failed to establish that performance was impossible. Hardin’s stepson testified that her monthly income was approximately $3000 but that the monthly cost of her care exceeded that amount. However, he added that although paying the costs of arbitration would create a financial hardship, Hardin could receive care in a nursing home through “taxpayer dollars” rather than out-of-pocket spending. While it is understandable that Hardin may consider this option less desirable than private care, its existence undermines her effort to establish financial impossibility.

Second, the evidence indicated that Hardin’s costs for care were significantly reduced at the time of the hearing as compared to what she had been paying when she was in the nursing facility. Thus, she did not establish an adverse change in circumstances from the time she entered into the agreement to the time the issue was presented to the trial court. Consequently, to the extent the trial court determined the agreement is unenforceable due to financial impossibility, we reverse.

IV. The Green Tree Prohibitive Cost Defense

Below and on appeal, the parties have also addressed a third defense which has been developing since’ the United States Supreme Court’s opinion in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). In Green Tree, the Supreme Court considered a party’s argument that an arbitration agreement’s silence as to costs and fees forced her to forego bringing her federal statutory claims due to the potentially prohibitive costs of pursuing them. 531 U.S. at 90, 121 S.Ct. 513. The Court reiterated that arbitration agreements are enforceable even as to statutory claims “ ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum.’ ” Id. (alteration in original) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)).

But the Court also acknowledged that large arbitration costs can preclude litigants from vindicating their rights through arbitration. Id. To that end, the Court held that where “a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs.” Id. at 92. The Court specifically declined to address, however, “[h]ow detailed the showing of prohibitive expense must be.” Id.

Federal and state courts around the country have struggled in applying this burden. See, e.g., Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 657-65 (6th Cir.2003) (discussing various approaches in applying the Green Tree standard to cost-splitting provisions in arbitration agreements). But the analysis in the seminal case of Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549 (4th Cir. 2001), has gained some traction. Bradford addressed whether fee-splitting provisions in employment contracts necessarily render arbitration agreements unenforceable by deterring plaintiffs from bringing claims. Citing Green Tree, the Fourth Circuit acknowledged that there exists a threshold where the costs of arbitration in a fee-splitting agreement can become prohibitive and render the agreement unenforceable by denying the plaintiff access to the forum. Id. at 554. But the court rejected the argument that fee-splitting provisions are per se unenforceable. Instead, it held that a case-by-case analysis is appropriate, focusing, “among other things, upon the claimant’s ability to pay the arbitration fees and costs, the expected cost differential between arbitration and litigation in court, and whether that cost differential is so substantial as to deter the bringing of claims.” Id. at 556.

We are persuaded that this approach is correct. As the Bradford opinion observed, this analysis is consistent with Green Tree, requiring the litigant to make “some showing of individualized prohibitive expense ... to invalidate an arbitration agreement on the ground that fee splitting would be prohibitively expensive.” Bradford, 238 F.3d at 557. This approach has also been adopted by the Eleventh Circuit. See Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1259-60 (11th Cir.2003) (citing the test from Bradford and noting that “[ujnder Green Tree, Mus-nick has an obligation to offer evidence of the amount of fees he is likely to incur, as well as of his inability to pay those fees”). Furthermore, the Fourth and Fifth Districts have interpreted Green Tree to require an evidentiary showing of at least the expected cost of arbitrating the specific claim. See Fi-Evergreen Woods, LLC v. Estate of Vrastil, 38 Fla. L. Weekly D1710, D1711-12 (Fla. 5th DCA Aug.16, 2013) (determining that an arbitration fee schedule and unauthenticated fee statements from similar but unrelated cases are insufficient to meet the requisite burden); Stewart Agency, 855 So.2d at 728-29 (“There is nothing to show that the expense of arbitration is greater than the expense of litigating the issues or would prevent the appellee from vindicating her statutory rights.”).

Here, Hardin has not met her burden under Green Tree. First, she has not presented evidence of the likely cost of arbitrating her claim. The invoices Hardin referred to were for unknown claims and do not establish what she could expect to incur if forced to arbitrate this matter. Second, even if Hardin’s evidence had addressed the cost of arbitrating this specific claim, she did not attempt to compare that cost with what she would pay in litigation. She is correct that fees would be required to pay an arbitrator (or, under the agreement, more than one arbitrator if the parties could not agree on one arbitrator) while no fees would be paid to a judge. But she presented no evidence, and therefore failed to carry her burden, to show that her likely expenses in arbitration would exceed her likely expenses in litigation. See Stewart Agency, 855 So.2d at 728-29.

Finally, we note that it is not clear from the record that Hardin would be required to pay anything at all if the matter proceeded to arbitration. During cross-examination of Hardin’s stepson, the Owners sought to inquire into the financial arrangements between Hardin and her lawyer. Hardin objected based on the attorney-client privilege. The Owners argued that, customarily, a plaintiff in a case such as this one is represented by an attorney on a contingency fee basis, with the plaintiffs attorney advancing the expenses to prepare and try the case. The Owners asserted that the arbitration agreement must be upheld absent evidence as to the costs Hardin herself would likely incur and for which she claimed she could not make payment. The Owners submitted that to the extent Hardin contended that the arbitration expenses would be borne directly by her and that she was unable to pay them, then the Owners should be permitted to engage in discovery to determine the accuracy of those contentions.

Hardin’s attorney did not respond directly to the contention that the law firm was representing Hardin under a contingency fee arrangement, maintaining that the fee agreement was protected by the attorney-client privilege. But the attorney stated that if the case proceeded to arbitration, the firm would not represent Hardin and Hardin would have to bear the costs of arbitration. The attorney then reiterated that the firm should not have to pay an arbitrator when it does not have to pay for a judge to be a decision-maker. The trial court sustained Hardin’s objection based on attorney-client privilege.

To the extent Hardin has maintained that the costs of arbitrating her claim were prohibitively expensive, it was her burden to prove “the likelihood of incurring such costs.” Green Tree, 531 U.S. at 92, 121 S.Ct. 513. The Owners argued, in essence, that if Hardin’s attorneys were representing her on a contingency basis, advancing all costs and recouping them solely from any recovery, then this burden has not been met. Hardin did not refute that contention or present authority that such an analysis is irrelevant to the issue. Instead, she baldly asserted that the attorney-client privilege protected the payment arrangement. This attempt to use the payment arrangement as both a sword and a shield must fail. Even assuming that the fee agreement contains privileged material, that information could be redacted and the billing information could be produced to substantiate Hardin’s claim. See Finol v. Finol, 869 So.2d 666, 666 (Fla. 4th DCA 2004). Consequently, Hardin failed to carry her burden under Green Tree.

V. Conclusion

Because the trial court’s findings are unsupported by the record, it erred in denying the motion to arbitrate. Accordingly, the trial court’s order is reversed, and we remand with directions that an order be entered compelling arbitration.

Reversed and remanded.

VILLANTI and MORRIS, JJ„ Concur.

      . We note that the parties have not addressed in the trial court or in their briefs the possible effect of a severability provision contained in the arbitration agreement.

      . In so concluding, we have not overlooked the potential impact of the Supreme Court’s recent opinion in American Express Co. v. Italian Colors Restaurant, - U.S. -, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013). In considering whether to enforce a contractual waiver of class arbitration, the Court cited Green Tree, acknowledging once more that the "effective vindication” exception may apply to "filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable.” Id. at 2310-11. The Court noted that "the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Id. at 2311. This language could be read to narrow the evidentiary scope of the Green Tree analysis to exclude from consideration the portion of expenses attributed to proving a claim, leaving only those involved in pursuing it. But this distinction is immaterial where, as here, the plaintiff's evidence is insufficient to establish the cost of either.

      . This argument assumes that no other law firm would represent Hardin and advance the necessary expenses. No evidence was offered in support of this argument.


author: CONNER, J.

text:
    Daniel Joseph BRENNAN, Appellant, v. Marianne K. BRENNAN, Appellee.
    Nos. 4D11-4723, 4D12-2927.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Rehearing Denied Oct. 21, 2013.

      Martin L. Haines, III of Martin L. Haines, III, Chartered, Lake Park, for appellant.
    Susan G. Chopin of Chopin & Chopin, LP, West Palm Beach, for appellee.
   CONNER, J.

In this consolidated appeal, Daniel Joseph Brennan (“Former Husband”) appeals the final judgment of dissolution of marriage and the post-judgment order adjudicating him in contempt pursuant to two motions filed by Marianne K. Brennan (“Former Wife”). On appeal, Former Husband raises seven issues contending the trial court erred as to the final judgment dissolving the marriage, equitably dividing assets, and determining issues of alimony and child support. As to the orders finding him in contempt and enforcing the final judgment, he raises four issues, one of which has three subparts. All issues that do not follow below, we affirm without discussion.

The Final Judgment

Equitable Distribution of the Marital Home

We reverse the trial court’s decisions regarding equitable distribution. A trial court is obligated to identify, value, and distribute the marital and non-marital assets and liabilities. Crooks v. Crooks, 967 So.2d 969, 970 (Fla. 4th DCA 2007). The temporary use of the marital home was awarded to Former Wife “until the full implementation of the equitable distribution schedule”; however, without Exhibit “A” attached to the final order, no findings awarding the equity in the home can be discerned from the record. Moreover, even though the trial court awarded equity in the marital home to Former Wife, it failed to indicate if there was a shift in title. Also, the Former Wife requested partition. Where a request for partition complies with section 64.041, Florida Statutes (2010), and is not contested by the opposing party, failure to divide the property is reversible error. Pantuso v. Pantuso, 335 So.2d 861, 862 (Fla. 2d DCA 1976). Because the trial court did not properly rule concerning the marital residence, the entire scheme of equitable division devised by the trial court may need revision. See Sweeney v. Sweeney, 583 So.2d 398, 399 (Fla. 1st DCA 1991) (remanding for reconsideration of the entire equitable distribution scheme because the portion of the scheme which was entered in error may have affected the overall plan).

Imputation of Income to Former Wife

We reverse on this issue. When imputing income at an amount other than the median income, a trial court is required to make specific findings, which are supported by competent substantial evidence. § 61.30(2)(b)l., Fla. Stat. (2011). The trial court failed to make a finding as to whether Wife’s unemployment was either voluntary or involuntary; it did not find whether she was able to obtain employment, only that she was able to seek employment. Former Wife explained that $36,000 is the starting salary for an entry level member of her profession. Her expert explained that a starting level employee in her position could make at minimum $25,000. Given this testimony, an imputation of income at a rate of $15,000 a year is unsupported by the evidence.

The Minor Child’s Private School Tuition

We reverse on this issue. A trial court is permitted to require a noncustodial parent to pay for private school only if it finds: (1) the parent has the ability to pay for private school, (2) the expense is in accordance with the family’s established standard of living, and (3) attendance is in the child’s best interest. Gelman v. Gelman, 24 So.3d 1281, 1283 (Fla. 4th DCA 2010). Where the trial court has failed to make each of the required factual findings, reversal is required. McDaniel v. McDaniel, 835 So.2d 1265, 1268 (Fla. 1st DCA 2003). The trial court failed to make findings regarding whether Former Husband was able to pay the additional expense.

Life Insurance to Secure Alimony and Child Support

We reverse on this issue. “[I]f a trial court orders a spouse to obtain life insurance, then it must make ‘specific findings as to the availability and cost of the policies and the impact of such cost on the husband.’ ” Galstyan v. Galstyan, 85 So.3d 561, 565 (Fla. 4th DCA 2012) (citation omitted). The trial court failed to make any findings regarding the necessity or cost of the insurance. The trial court’s only comment on availability of insurance required Former Husband to maintain the life insurance policy “so long as it is reasonably available,” but it failed to detail the parameters of availability. As such the requirement of maintaining life insurance must be reversed for the trial court to make the required findings. Id. We also remind the trial court that the amount of life insurance required must not exceed the support obligation. Foster v. Foster, 83 So.3d 747, 749 (Fla. 5th DCA 2011).

Former Wife’s Attorney’s Fees and Costs as of Final Hearing

We reverse on this issue because where equitable distribution is reversed on appeal, it may be appropriate to reexamine attorney’s fees to determine if the redistribution of assets and liabilities affects the award for attorney’s fees. Segall v. Segall, 708 So.2d 983, 989 (Fla. 4th DCA 1998).

Orders of Contempt

Former Wife’s Enforcement Attorney’s Fees as Additional Purge

We reverse the order requiring Former Husband to pay Former Wife’s attorney’s fees for enforcement as an additional purge amount. The record does not contain a current financial affidavit for the Former Wife as of the contempt hearings. She testified regarding her current financial circumstances, and she testified about her inability to meet bills as they become due. However, she failed to testify as to the assets she currently possessed, her current monthly income, or any additional liabilities above her mortgage and home equity loan. Thus, she did not adequately demonstrate her need for attorney’s fees. Sobel v. Sobel, 873 So.2d 449 (Fla. 4th DCA 2004).

Adjudicating Contempt Without Sufficient Evidence and Assessing Purge Without Identifying Source of Payment

This court has previously found that where an award is improper and requires reversal, a finding of contempt based upon such award must also be reversed. Powell v. Powell, 55 So.3d 708, 710 (Fla. 4th DCA 2011) (explaining that contempt based upon failure to pay an attorney’s fees award, which was unsupported by the required findings, also required reversal). Because we reverse the award of alimony and child support, we reverse the determination that Former Husband is in contempt.

On remand, we note that the trial court needs to identify the source of payment for the purge amount only if a coercive sanction is imposed. Aburos v. Aburos, 34 So.3d 131, 134 (Fla. 3d DCA 2010) (explaining that if incarceration is ordered, a separate, affirmative finding of present ability to pay the purge must accompany it).

Error in Calculation of the Amount of Arrearage

“Absent competent, substantial evidence to show the basis for th[e] amount of support arrearages,” reversal and remand for more specific findings is appropriate. Payton v. Payton, 109 So.3d 280, 282 (Fla. 1st DCA 2013). According to the Support Enforcement Ledger dated July 13, 2012, Former Husband was behind on payments in the amount of $18,506.19. Former Wife testified that the amount owed totaled $19,246. Former Wife indicated that her testimony was the product of a sheet and calculation that she herself had prepared. She went through each payment that she received; however, there was no additional indication as to how this amount was established. The trial court established that the purge amount was $19,246. Because of the failure to demonstrate how the $19,246 in arrearages was calculated, we reverse on this issue and remand for more specific findings as to how the amount was calculated.

Affirmed in part; reversed in part and remanded.

DAMOORGIAN, C.J., and STEVENSON, J., concur.


author: CLARK, J.

text:
    B.K.A., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-899, 1B13-0902, 1D13-0903.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Nancy A. Daniels, Public Defender and Colleen D. Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

B.K.A., a juvenile, appeals three disposition orders adjudicating him delinquent and committing him to the custody of the Department of Juvenile Justice (DJJ) for placement in a low-risk residential program with post-commitment probation. He contends that the trial court erred by committing him to a different restrictiveness level than that recommended by the Department without sufficient reasons, in violation of section 985.433(7), Florida Statutes and the requirements set out in E.A.R. v. State, 4 So.3d 614 (Fla.2009). The adjudications are affirmed, but because the Department’s recommendations of probation were not recommendations of a “restrictiveness level” most appropriate for the child, as contemplated by section 985.433(7), Florida Statutes, we reverse the commitments and remand for further proceedings.

In the juvenile proceedings, B.K.A. entered pleas of no contest to battery, grand theft, and burglary of a conveyance. The trial court requested that DJJ prepare a predisposition report (“PDR”) pursuant to section 985.43, Florida Statutes. The PDR included discussion of the three petitions for delinquency, B.K.A.’s previous placement on probation for one of the cases, and DJJ’s determination that B.K.A. was at “Moderate” risk to re-offend. DJJ recommended probation as an appropriate sanction and did not recommend commitment to the Department at any restrictiveness level. The PDR did not include an alternative recommendation of commitment at any restrictiveness level in the event the court decided to commit B.K.A. rather than place him on probation.

During the disposition hearing, the state and the defense agreed with the Department’s recommendation of probation. However, B.K.A.’s mother testified that she did not agree that probation was appropriate. She further testified that B.K.A. had been suspended from school just that week and that she was unable to manage his behavior. She stated that her landlord had demanded that the family vacate their home because B.K.A. had set a fire in the yard two weeks prior to the hearing, and that no other family members would allow them to live with them because he “steals from the family.” In addition, she was certain he frequently smoked marijuana. B.K.A.’s juvenile probation officer testified that the incidents the mother described occurred after the PDR had been submitted, and that when he relayed the new information to his supervisor, he was informed that the recommendations of the Department would stand.

Based upon the PDR on file and the testimony at the adjudicatory hearing, the trial court determined that adjudication of B.K.A. and commitment to the custody of the Department were suitable and that probation was not sufficient to meet B.K.A.’s needs. The court determined that B.K.A. should be committed to a “low risk program followed by probation” in each of the disposition orders. The court explained its reasoning at the hearing, including the mother’s testimony, the previous probation status, and the felony nature of two of the offenses. Written reasons to support the court’s determination were attached to the disposition orders as well.

The two-part process for juvenile dispositions, as set out in section 985.433(6) and (7), Florida Statutes, was described in E.A.R. v. State, 4 So.3d 614, 624 (Fla.2009). Step one is the “[t]he juvenile court’s first responsibility ... to determine whether the child should be adjudicated and committed.” E.A.R., 4 So.3d at 624 (citing § 985.433(6), Fla. Stat.). The court’s determination “shall include considerations of the recommendations of the department, which may include a predisposition report.” § 985.433(6), Fla. Stat. The Department’s predisposition report must include the criteria listed in the statute (Section 985.433(6)(a)-(h), Fla. Stat.) but the court exercises its discretion in considering the criteria. As noted in E.A.R., section 985.433(7) requires that “[i]f the court determines that it should adjudicate the child and commit him or her to the custody of the DJJ, it is required to state this determination on the record or in writing.” E.A.R., 4 So.3d at 624 (citing § 985.433(7), Fla. Stat.). The court must specify its reasons for adjudication and for commitment of the child to the Department. Id. The court’s disposition made under subsection (6), i.e., whether the child is adjudicated delinquent or not, and if adjudicated, whether the child is committed to the department or not, is not ap-pealable. § 985.433(6), Fla. Stat. (“It is not the intent of the Legislature to provide for the appeal of the disposition made under this section.”).

In this case, the circuit court fully complied with step one of the disposition process. The court considered the recommendations of DJJ, which included a predisposition report. DJJ recommended probation rather than commitment in its report. The court stated its determination that the juvenile was adjudicated delinquent and committed to the Department on the record at the hearing and in writing in its disposition orders. The court included specific findings of the reasons for its decision to adjudicate and to commit the child to the Department. As this court recently recognized, in J.B.S. v. State, 90 So.3d 961, 967 (Fla. 1st DGA 2012), “E.A.R. does not apply to the initial determination made under section 985.433(6), which gives the trial court wide discretion in determining the suitability of commitment of the child to the Department.”

The error in these disposition orders is not with the initial determinations of whether the child should be adjudicated delinquent or not and whether he should be committed to the Department or not. The error occurred when the trial court proceeded to step two of the disposition process, as described in section 985.433(7)(a)-(b), without sufficient input from the Department. Specifically, DJJ never provided the court with a recommendation from the juvenile probation officer of “the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child.” § 985.433(7)(a), Fla. Stat.

Here, the predisposition report presented by DJJ loosely addressed the criteria in section 985.433(6)(a)-(h), Florida Statutes and recommended “probation.” No recommendation regarding commitment at any level was made. Accordingly, there was no identification of a “restrictiveness level” by DJJ, as contemplated by section 985.433(7)(a)-(b). Probation is not a restrictiveness level because it is a limitation on the freedom of the child “in lieu of commitment to the custody of the department.” § 985.03(44), Fla. Stat. In contrast, “restrictiveness level” is defined as the level of “programming and security provided by programs that service ... committed children.” § 985.03(46), Fla. Stat. “Restrictiveness level” refers to “levels of commitment,” and probation is not included in the list of these levels. § 985.03(46)(a)-(e), Fla. Stat. (lowest restrictiveness level is “minimal risk nonresidential,” applicable to committed youth who remain in the community).

Because there was no restrictiveness level identified by the Department, the trial court’s orders that the child would be placed in a “low-risk” commitment did not violate section 985.433(7)(b) or the requirements for detailed explanation of any departure from the Department’s identified restrictiveness level, as set out in E.A.R., 4 So.3d 614 (2009). The trial court’s error was in ordering a level of commitment without requesting a further multidisciplinary assessment and follow-up predisposition report, as the trial judge did in J.B.S. See § 985.43(l)(a), Fla. Stat.

Once the trial court receives a recommendation from the Department of the “most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child,” as required by section 985.433(7)(a), the court may proceed with step two of the disposition in these cases in terms of the level of commitment of the child. A recommendation of “probation” by DJJ, •without any alternative analysis and recommendation in the event the court determines that the child should be adjudicated delinquent and committed to the Department, is insufficient to allow the juvenile court to proceed with a final commitment disposition under section 985.433(7), Florida Statutes.

Accordingly, the disposition orders on appeal are AFFIRMED as to the adjudications of delinquency, but the particulars of the commitments are REVERSED for further proceedings in accordance with this opinion and section 985.433(7), Florida Statutes.

ROWE and SWANSON, JJ., concur.


text:
    Darrell L. STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3964.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Darrell L. Stokes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant seeking reinstatement of appeal number 1D13-3119.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Kimberly MASS-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3855.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Kimberly Mass-Rodriguez, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED without prejudice to the appellant’s right to file a petition for a belated appeal.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Jontre McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3579.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Jontre McClendon, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the Court’s jurisdiction was not invoked in a timely fashion, the appeal is dismissed. However, the dismissal is without prejudice to appellant seeking reinstatement of appeal number 1D13-0576.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., concur.


text:
    Michael GREEN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-3529.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Michael Green, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

This court has no authority to grant a belated appeal in a civil proceeding. See Powell v. Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999). Accordingly, the petition seeking belated appeal is denied. This disposition is without prejudice, however, to petitioner seeking relief in the lower tribunal. See generally Milord v. Florida Parole Commission, 4 So.3d 762 (Fla. 1st DCA 2009) (Browning, J., concurring).

WETHERELL and RAY, JJ., concur.

THOMAS, J., concurs in result only.


text:
    Ronnie L. POUNCY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS; Florida Parole Commission; The office of Program Policy Analysis and Government Accountability, Appellees.
    No. 1D13-3295.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Ronnie L. Pouncy, pro se, Appellant.
   PER CURIAM.

DISMISSED. See McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). The dismissal is without prejudice to appellant’s right to seek relief in the trial court. See Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998).

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Sean P. REILLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2884.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2013.
    Sean P. Reilly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Sean P. Reilly seeks mandamus relief to compel the circuit court to rule on a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). However, two direct appeals arising from the same case are currently pending before this court, and the circuit court is therefore divested of jurisdiction to consider the rule 3.800(a) motion at this point. See Campbell-Eley v. State, 763 So.2d 539 (Fla. 4th DCA 2000) (a trial court lacks jurisdiction to consider a defendant’s motion to correct illegal sentence while a direct appeal is pending). Accordingly, the petition for writ of mandamus is DENIED.

THOMAS, WETHERELL, and RAY, JJ., concur.


author: MORRIS, Judge.

text:
    Roger E. VILLWOCK, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4970.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Roger E. Villwock, III, appeals the revocation of his probation for the offense of failing to register as a sex offender. We agree with Villwock’s argument that the State failed to prove that Villwock violated his probation by committing the new offense of failing to register as a sex offender in Michigan. But the State proved by a preponderance of the evidence that Vill-wock willfully and substantially violated his probation by failing to report to his probation officer on two different occasions and by changing his residence without his probation officer’s consent, and it is clear from the record that the trial court would have revoked Villwock’s probation based on these three violations. See Tirado v. State, 69 So.3d 1005, 1006 (Fla. 2d DCA 2011).

Therefore, we affirm the order revoking probation but remand for the trial court to strike the new law offense violation from the order of revocation. See id. We also note that the order of revocation states that Villwock “admitted to all the allegations of violations of probation” and that the court “accepted the admissions to the violations.” On remand, the trial court should correct the order to reflect that Villwock contested the violations and that the three violations were proven by the State.

Affirmed; remanded with instructions.

VILLANTI and LaROSE, JJ., Concur.


text:
    Jeremy Russell INGRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-507.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2013.

      Howard L. Dimmig, II, Public Defender, and Elizabeth Greer, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Jeremy Ingraham appeals his convictions and sentences of probation for the felony offense of making a false statement in obtaining a driver’s license and the misdemeanor offenses of obstructing or opposing an officer without violence, driving under the influence, and driving while license suspended or revoked. We affirm the felony conviction and sentence without comment, but we reverse the misdemeanor convictions and sentences.

Ingraham argues, the State concedes, and we agree that the circuit court did not have subject matter jurisdiction over the misdemeanors because the misdemeanors did not arise out of the same circumstances as the felony. See Hicks v. State, 990 So.2d 684, 685 (Fla. 2d DCA 2008) (“The circuit court’s jurisdiction over misdemeanors is limited to those misdemeanors arising out of the same circumstances as any felonies charged in the same charging document.” (citing Art. V, § 20(c)(3), Fla. Const.; § 26.012(2)(d), Fla. Stat. (2005))). The felony was committed between 2006 and 2008, while the misdemeanors occurred during a traffic stop in 2011. And the fact that Ingraham acquiesced to the circuit court’s jurisdiction is irrelevant as subject matter jurisdiction cannot be conferred by agreement or failure to object. See Hicks, 990 So.2d at 685; State v. Yaros, 728 So.2d 1201, 1202 (Fla. 2d DCA 1999); White v. State, 568 So.2d 1318, 1319 (Fla. 2d DCA 1990).

Accordingly, the misdemeanor convictions and sentences are void, and we reverse the misdemeanor convictions and sentences and remand for further proceedings in the correct court. See White, 568 So.2d at 1319 (“The practical benefit to [appellant] of this decision is debatable, particularly since the state is free to pursue the charges at the correct level of the court system and thereby summon [appellant] back for at least one more appearance.”).

Affirmed in part; reversed in part; remanded.

VILLANTI and LaROSE, JJ., Concur.