author: LAGOA, Judge.

text:
    Jorge Luis TAPANES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-978.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Jorge Luis Tapanes, in proper person.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Appellant, Jorge Luis Tapanes (“Defendant”), appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order.

In February of 2006, Defendant was arrested and charged with possession with intent to sell sixty-one live marijuana plants (count l). Defendant pled nolo contendere as to count 1 and was sentenced to credit for time served.

Defendant was later charged in federal court with possession with intent to distribute fifty or more marijuana plants. This federal case was not pending at the time of Defendant’s 2006 state court conviction, and arose from a separate act committed by Defendant following his 2006 conviction. On August 24, 2007, following a jury trial in federal court, Defendant was convicted. During his 2008 federal sentencing, Defendant received an enhancement based on the 2006 state court conviction.

As a result of this enhancement in federal court, Defendant filed a Rule 3.850 motion alleging ineffective assistance of counsel in the state court proceeding. Defendant asserted that his March 2006 plea was involuntarily entered into as a result of defense counsel’s misadvice regarding the consequences of his plea. Defendant alleges that his counsel advised him that the nolo contendere plea could not be used against him in future prosecutions. Defendant further states that if his counsel had advised him that the plea to the state charge could later be used to enhance a future federal conviction, he would have foregone the plea and proceeded to trial. As such, Defendant alleges that his counsel provided affirmative misadvice as to the direct consequences of his plea.

In denying Defendant’s motion, the trial court concluded that “[p]ursuant to Hogan v. State, 931 So.2d 996 (Fla. 3d DCA 2006), [counsel’s] misadvice regarding the collateral future sentence-enhancing consequence of a plea is not a cognizable claim.” This appeal ensued.

We affirm the trial court’s denial of the Defendant’s post-conviction motion based on the authority of State v. Dickey, 928 So.2d 1193 (Fla.2006). In Dickey, as in this case, the issue involved allegedly incorrect advice about the sentence enhancing consequences of a crime not yet committed. The Florida Supreme Court in Dickey specifically held that “allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim.” Id. at 1198.

Accordingly, because Defendant was not entitled to the relief sought, we affirm the trial court’s order.

Affirmed.

      . At sentencing, the trial court dismissed count 2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    B.E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1132.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and William M. Bennett, Certified Legal Intern, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

B.E., a juvenile, appeals the trial court’s adjudication of delinquency and disposition entered following an adjudicatory hearing. We affirm because the trial court did not err when it denied B.E.’s motion for judgment of acquittal.

The sole issue raised in this appeal is whether the trial court erred in denying B.E.’s motion for a judgment of acquittal based on the State’s alleged failure to establish corpus delicti for the charge of possession of marijuana so as to make B.E.’s confession admissible. Before a confession is admitted, the State has the burden of proving by substantial evidence that a crime was committed. In State v. Allen, 335 So.2d 823, 824 (Fla.1976), the Florida Supreme Court declared that “the State has the burden of proving by substantial evidence that a crime was committed, and that such proof may be in the form of circumstantial evidence.” The State, however, does not have to prove the identity of the defendant as the guilty party. See Burks v. State, 613 So.2d 441, 443 (Fla.1993).

In this case, the State’s theory was constructive possession of marijuana. The prosecution presented competent, substantial evidence to establish each element of constructive possession of marijuana. It is uncontroverted that possession of marijuana is a crime. Thus, someone, either B.E. or the resident of the premises, was in constructive possession of the illicit substance. For the purpose of showing corpus delicti, it is immaterial which of the two suspects was guilty of the constructive possession. Consequently, the State was able to introduce B.E.’s statement acknowledging ownership of the marijuana.

Affirmed.


author: MAY, J.

text:
    Bernard ACKON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-970.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his convictions and sentences for assault on a law enforcement officer, possession of ammunition by a convicted felon, possession of cannabis, and use or possession of drug paraphernalia. He first argues the trial court erred in denying his motion for judgment of acquittal as it related to the possession of ammunition by a convicted felon. We agree and reverse the conviction and sentence on that count only. We affirm the convictions and sentences on the remaining counts.

Law enforcement received information that the defendant was selling crack cocaine and set up a controlled buy. On the day of the transaction, the police observed the defendant leaving his driveway with his girlfriend in his girlfriend’s car. A trash pull from the defendant’s residence revealed marijuana, which law enforcement used to establish probable cause for a search warrant.

When the officers executed the search warrant, they knocked and entered the residence. In one unoccupied room, they found a video game on pause. As they opened the door to the garage, a dog attempted to charge into the home. One of the detectives went outside and found that the garage door had been opened and saw the defendant walking out of the garage. At that point, the dog attacked the detective giving rise to the assault charge.

Another detective detained the defendant, and read him the search warrant and Miranda warnings. As the officers began to conduct the search, the defendant told them they were not going to find anything other than a small amount of marijuana belonging to him.

Testimony revealed that several officers searched the house, while a single detective remained in the dining room and documented the items found: ammunition, a digital scale, less than twenty grams of cannabis, and some cigarette rolling papers.

The detective who actually found the ammunition did not testify and no one was able to testify where the ammunition had been found. One of the detectives explained that there may have been officers that approached from the back of the house to insure that no one left through the back door.

A firearms examiner from the crime lab testified that there were three different types of ammunition inside the box. Over defense objection, the examiner was allowed to testify concerning the types of ammunition, the typical use of each bullet design, and that all the rounds could be fired from the same firearm.

The defendant moved for a judgment of acquittal on the possession of ammunition count, arguing that the State had failed to prove an essential element of the crime: knowledge of the ammunition. The defendant argued that there had been no proof of where the ammunition had been found or if it had even been found in the house. While pictures had been taken of the items seized, the ammunition was not in the photos.

The State responded that the defendant’s admission concerning the cannabis established that he had knowledge of the ammunition, which had been found in the same room. However, significantly no one had testified that the ammunition had been found in the same room. The State then offered to postpone the trial so that it could call another officer. The trial judge responded that the search took place in the home and the ammunition had been found there with the defendant being the only occupant. The defendant argued however that the warrant actually indicated that there were two residents of the house. The trial court denied the motion.

In closing, the State argued that the box of mixed ammunition established that someone had been in possession of it because it didn’t come packaged that way. In addition, the defendant’s admission to the cannabis fimther established that the defendant had the care, custody, and control of the ammunition. The State asked the jury to use its common sense in considering whether the defendant’s girlfriend could have been in possession of the ammunition and reminded the jury that there could be joint possession.

The jury failed to reach a verdict on the counts for possession of cocaine and sale or delivery of cocaine, but found the defendant guilty of assault on a law enforcement officer, possession of ammunition, cannabis, and drug paraphernalia. The defendant was later found not guilty of possession and sale of cocaine. The trial court sentenced the defendant to fifteen years for the possession of ammunition count.

On appeal, the defendant argues that the State failed in its burden of proof because no one testified to the location of the ammunition and the house was occupied (although not at the time of the warrant’s execution) by more than one person. The State responds that the defendant’s admission to possession of marijuana within the house and the mixed ammunition in the box was sufficient to prove beyond a reasonable doubt that the defendant possessed the ammunition. We disagree with the State.

We review the trial court’s ruling on the motion for judgment of acquittal de novo. Beckford v. State, 964 So.2d 793, 795 (Fla. 4th DCA 2007). In moving for a judgment of acquittal, the defendant “admits the facts adduced in evidence and every conclusion favorable to the state which is fairly and reasonably inferable therefrom.” Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005). A motion for judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

The State charged the defendant with possession of ammunition by a convicted felon, pursuant to section 790.23(1), Florida Statutes (2007). The State advanced the theory of constructive, and not actual, possession. This required the State to prove the defendant: (1) knew the contraband was in his presence; (2) had the ability to maintain control over it; and (3) knew of the illicit nature of the contraband. Williams v. State, 724 So.2d 1214, 1215 (Fla. 4th DCA 1998).

When “the area in which the contraband is found is within the defendant’s exclusive possession, his guilty knowledge of the presence of the contraband and his ability to maintain control over it may be inferred.” Id. (emphasis in original). However, if the property where the contraband “is found is in joint rather than exclusive possession of the accused, then knowledge of the contraband’s presence and the ability to control it will not be inferred from the accused’s presence but must be established by independent proof.” Id. (emphasis in original).

Here, there was NO direct testimony that the ammunition was even found in the house. Without this testimony, the State could not meet its burden of establishing beyond a reasonable doubt that the defendant knew the ammunition was in his presence or that he had the ability to maintain control over it. Id. We therefore reverse the defendant’s conviction on the count alone and remand the case to the trial court to vacate the judgment and sentence on that count.

Reversed, and Remanded,.

TAYLOR, J„ and SHAHOOD, GEORGE A., Senior Judge, concur.


author: LAGOA, Judge. SCHWARTZ, Senior Judge

text:
    FIRST QUALITY HOME CARE, INC., Petitioner, v. ALLIANCE FOR AGING, INC., Respondent.
    No. 3D08-2949.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Squire, Sanders & Dempsey and Teri L. Donaldson and Brian J. Cross (Tallahassee); Radey, Thomas, Yon & Clark and Donna Blanton and Elizabeth McArthur (Tallahassee), for petitioner.
    Holland & Knight and Stephen H. Grimes and Karen D. Walker (Tallahassee), for respondent.
    Ausley & McMullen and Robert N. Clarke, Jr. and John Beranek (Tallahassee); Mary Ellen McDonald, Department of Elder Affairs (Tallahassee), for State of Florida, as amicus curiae.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

First Quality Home Care, Inc. (“First Quality”), seeks a writ of mandamus directing Alliance for Aging, Inc. (“Alliance”), to forward First Quality’s notice of bid protest to the Division of Administrative Hearings (“DOAH”) for a formal administrative hearing pursuant to Florida’s Administrative Procedure Act (“APA”). Because we reject First Quality’s contention that Alliance is a state agency subject to the APA, we deny the petition.

Alliance is a private non-profit corporation, which the Department of Elder Affairs (“DOEA”), designated to serve as an area agency on aging (“AAA”) “to coordinate and administer the DOEA’s programs and to provide, through contracting agencies, services within a planning and service area.” § 430.203(1), Fla. Stat. (2008). The contract states that Alliance is an independent contractor and sets forth its obligations including the designation of lead agencies pursuant to requests for proposal for the DOEA’s Community Care for the Elderly program in Miami-Dade and Monroe counties. See § 430.203(9), Fla. Stat. (2008).

Alliance issued a request for proposal for three lead agency contracts in Miami-Dade County; the request for proposal provided for an internal appellate process. In response to Alliance’s request for proposal, First Quality submitted its proposal. After Alliance issued a notice of intent to award the lead agency designations to other providers, First Quality sent Alliance a letter seeking review of that decision. First Quality’s letter purported to serve as its notice of intent to challenge Alliance’s selection decision under sections 120.569 and 120.57, Florida Statutes (2008). Alliance set a hearing date before its Board’s Executive Committee. First Quality appeared at the hearing, and asserted its objections to the selection. Alliance’s Board rejected First Quality’s appeal.

First Quality filed this petition for mandamus, contending, inter alia, that it is entitled to the APA’s bid protest procedures rather than the internal appellate procedures provided for in Alliance’s request for proposal. In support of this contention, First Quality cites Mae Volen Senior Center, Inc. v. Area Agency on Aging Palm Beach/Treasure Coast, Inc., 978 So.2d 191 (Fla. 4th DCA 2008), review denied, 1 So.3d 172 (Fla.2009). Mae Volen also involved an AAA bid selection process for designation of lead agencies pursuant to a request for proposal, although the request for proposal in Mae Volen expressly provided that the bid protest procedures were governed by section 120.57(3), Florida Statutes. The Fourth District held that the private, non-profit corporation, acting as an AAA, is a state agency subject to the APA and concluded that the DOAH has jurisdiction to hear the appeal of the bid protest for a lead agency contract. We decline to follow the Fourth District, and conclude that Alliance is not a state agency governed by the APA’s statutory procedures.

First Quality contends that it is entitled to a formal administrative hearing as provided for in sections 120.569 and 120.57, Florida Statutes (2008). This hearing, however, is afforded to First Quality only if Alliance is an “agency” as defined in section 120.52(1), Florida Statutes (2007), and section 287.012(1), Florida Statutes (2008). See Coastal Fuels Mktg., Inc. v. Canaveral Port Auth., 962 So.2d 942, 944 (Fla. 5th DCA 2007); Fla. Dep't of Ins. v. Fla. Ass’n of Ins. Agents, 813 So.2d 981, 983 (Fla. 1st DCA 2002); Booker Creek Pres., Inc. v. Pinellas Planning Council, 433 So.2d 1306 (Fla. 2d DCA 1983); see also Sch. Bd. of Palm Beach County v. Survivors Charter Schs., Inc., 3 So.3d 1220, 1230 (Fla.2009) (“The Administrative Procedure Act, set forth in chapter 120, Florida Statutes, is generally applicable to all forms of agency decision making.”); Legal Envtl. Assistance Found., Inc. v. Bd. of County Comm’rs, 642 So.2d 1081, 1083 n. 2 (Fla.1994) (“The Administrative Procedure Act applies to all administrative agencies in Florida.”). We conclude that Alliance is not an “agency” as defined by either the APA or Florida’s procurement statute.

The APA’s definition of “agency” is set forth in section 120.52(1), which is divided into several subsections. Alliance does not fall within the definition of “agency” as provided in subsections (a), (b) or (c). First, section 120.52(l)(a), which applies to the Governor’s exercise of executive powers other than those derived from the constitution is clearly inapplicable to Alliance. Second, Alliance, a private, non-profit corporation, is not one of the entities listed in subsection (b), i.e., a state department/departmental unit described in section 20.04, Florida Statutes; an authority; a board; a commission; a regional planning agency; a multicounty special district; an educational unit; or an entity described in several listed statutes other than chapter 430, which concerns the DOEA. See Fla. Ass’n of Ins. Agents, 813 So.2d at 983. Finally, Alliance is not a unit of state government that has been made subject to the APA by general or special law or existing judicial decisions as required under subsection (c). See Greene v. Carson, 515 So.2d 1007 (Fla. 1st DCA 1987). We, therefore, conclude that Alliance is not an “agency” as defined by section 120.52(1).

Furthermore, Alliance is not a state “agency” under Florida’s procurement statute. Section 120.57(3), Florida Statutes (2008), provides for additional procedures applicable to protests to contract solicitations or awards. Subsection 120.57(3)(g) states that “[f]or the purposes of this subsection, the definitions in s. 287.012 apply.” Part I of chapter 287 governs public procurement of contractual services. Section 287.012(1) provides that “agency” “means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government.” Alliance does not fall within this definition as it is not a listed entity. In addition, Alliance is not “any other unit of organization” because the express language of the statute limits that designation to units of “the executive branch of the state government.” Clearly, Alliance — a private corporation — is not a “unit of organization” of the State’s executive branch. Accordingly, we hold that Alliance is not a state agency pursuant to the definitions of “agency” as provided in the APA or in the procurement statute.

In Mae Volen, the Fourth District concluded that the AAA fell within section 120.52(1)(b)(3), which lists a “board” as a state agency. We disagree. In reaching this conclusion, Mae Volen relies on section 20.41(7), Florida Statutes (2007). Section 20.41 sets forth the organizational structure of the DOEA, and subsection (7) provides that “[t]he department shall contract with the governing body, hereafter referred to as the ‘board’ of an area agency on aging.” Section 20.41(7) merely refers to the governing body of the AAA as the “board,” rather than the entity itself. We believe that the use of the term “board” in section 20.41(7) refers to a “board of directors,” and not to an official state board (such as the State Board of Education or the State Board of Governors). Therefore, that nomenclature does not support a holding that the AAA is a “board” as used in the APA definition of “agency.” See Coastal Fuels Mktg., Inc., 962 So.2d at 944 (holding that the statutory definition of “agency” as including “each Authority” is inapplicable to the port authority (an independent special taxing district) despite the statutory reference to the governing body of the port authority as an “Authority”); Fla. Ass’n of Ins. Agents, 813 So.2d at 983 (holding that an unincorporated association is not “a ‘Board’ or an ‘Authority’ as those words are used in section 120.52(1), [and stating that] [a]s commonly understood in context, both of those words connote entities different from an unincorporated association”). This conclusion is further supported by subsection 120.52(l)(c)’s reference to “[e]ach other unit of government in the state” (emphasis added), thereby indicating that the previously listed entities in subsection 120.52(1)(b) are also government units. See State ex rel. State Attorney for Twelfth Judicial Circuit v. Gen. Dev. Corp., 448 So.2d 1074, 1082-83 (Fla. 2d DCA 1984) (stating that subsections of 120.52(1) must be read in pari materia), approved, 469 So.2d 1381 (Fla.1985); see also Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla.2008) (court “cannot read [statutory] subsection ... in isolation, but must read it within the context of the entire section in order to ascertain legislative intent for the provision”). Therefore, we hold that Alliance is not a “board” as that term is used in section 120.52(1)(b)(3).

In holding that Alliance is not a state agency, we follow Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137, 1139 (Fla. 1st DCA 1981), and its conclusion that section 120.52(1)’s definition of “agency” “does not in terms encompass a private entity that contractually agrees to provide services for a state agency.” As recognized in Vey, “a private entity which contracted to provide services for a state agency does not thereby become a state agency itself.” Id. (citing State Rd. Dep’t v. Cone Bros. Contracting Co., 207 So.2d 489 (Fla. 1st DCA 1968)). Mae Volen’s attempt to distinguish Vey on the grounds that Vey involved a provider of direct services, while the AAA provides coordination and administration services and, through contracting agencies, services within a planning and service area is unpersuasive. It is of no moment that one private entity provides administration/coordination services while another provides direct services for the care of the elderly. See § 430.203(9), Fla. Stat. (2008) (affording a lead agency authority to coordinate some or all of its services directly or through subcontracts). At bottom, both entities are private, non-profit corporations that provide services pursuant to contracts with state agencies — contracts that describe the entities as independent contractors. We discern no legislative intent to include private, non-profit corporations such as Alliance within the purview of the APA. As stated in Florida Association of Insurance Agents, 813 So.2d at 984:

To conclude that the legislature intended that the Association be subject to the Act would, necessarily, also require the conclusion that many other similar entities are subject to the Act. Had the legislature intended such a result, given the apparently comprehensive nature of the list set out in section 120.52(1), we believe it would have said so.

We similarly conclude that, had the Legislature intended to subject a private corporation designated as an AAA to the APA’s bid protest procedures, it would have included that entity in the pertinent statutes defining “agency.” See Vargas v. Enter. Leasing Co., 993 So.2d 614, 618 (Fla. 4th DCA 2008) (“ ‘The starting point for [the] interpretation of a statute is always its language/ so that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’” (quoting Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821, 829-30 (M.D.Fla.2007), aff'd, 540 F.3d 1242 (11th Cir.2008))); Haskins v. City of Ft. Lauderdale, 898 So.2d 1120, 1123 (Fla. 4th DCA 2005) (“A basic canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))). Accordingly, we deny the petition for mandamus. To the extent that this decision conflicts with Mae Volen, we certify conflict.

Petition denied; conflict certified.

COPE and LAGOA, JJ, concur.

SCHWARTZ, Senior Judge

(dissenting).

I agree with Mae Volen Senior Center, Inc. v. Area Agency on Aging Palm Beach/Treasure Coast, Inc., 978 So.2d 191 (Fla. 4th DCA 2008), review denied, 1 So.3d 172 (Fla.2009).

      . The record contains the contract between the DOEA and Alliance from July 1, 2008, until June 30, 2009.

      .Section 120.52(1) states:
      As used in this act:
      (1) "Agency” means:
      (a) The Governor in the exercise of all executive powers other than those derived from the constitution.
      (b) Each:
      1. State officer and state department, and each departmental unit described in s. 20.04.
      2. Authority, including a regional water supply authority.
      3. Board, including the Board of Governors of the State University System and a state university board of trustees when acting pursuant to statutory authority derived from the Legislature.
      4. Commission, including the Commission on Ethics and the Fish and Wildlife Conservation Commission when acting pursuant to statutory authority derived from the Legislature.
      5. Regional planning agency.
      6. Multicounty special district with a majority of its governing board comprised of nonelected persons.
      7. Educational units.
      8. Entity described in chapters 163, 373, 380, and 582 ands. 186.504.
      (c) Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.
      This definition does not include any legal entity or agency created in whole or in part pursuant to chapter 361, part II, any metropolitan planning organization created pursuant to s. 339.175, any separate legal or administrative entity created pursuant to s. 339.175 of which a metropolitan planning organization is a member, an expressway authority pursuant to chapter 348 or transportation authority under chapter 349, any legal or administrative entity created by an interlocal agreement pursuant to s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this subsection, or any multicounty special district with a majority of its governing board comprised of elected persons; however, this definition shall include a regional water supply authority.

      .Section 287.012(1) states:
      As used in this part, the term:
      (1) "Agency” means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. "Agency” does not include the university and college boards of trustees or the state universities and colleges.

      . Mae Volen does not address this statutory definition of "agency.”

      . Tlie Fourth District expressly stated that its ruling was very narrow: “All we decide is that the administrative hearing officer has jurisdiction to hear this bid protest for a lead agency contract.” Mae Volen, 978 So.2d at 195 (emphasis added). In addition, unlike the contract in Mae Volen, the AAA contract describes Alliance as an independent contractor and the request for proposal does not provide for section 120.57(3) procedures.


author: COPE, J.

text:
    Lazaro Ivan PONCE-LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1764.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Rehearing Denied July 31, 2009.
    Samek and Besser and Lawrence E. Besser, Miami, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before COPE and SUAREZ, JJ, and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal of a conviction for the offense of trafficking in cannabis. Lazaro Ivan Ponce-Lopez entered a guilty plea, reserving the right to appeal the denial of his motion to suppress evidence.

The Miami-Dade County Police Department received an anonymous tip that marijuana was being grown in the residence of defendant-appellant Ponce-Lopez. Detectives went to the residence and observed an abandoned car in the driveway. One detective saw windows with the blinds closed and heard an air conditioner unit that was continuously running without cycling off.

The detectives went up the sidewalk to the front door with a drug detection dog. The dog did not alert. The detectives and the dog began to walk back down the sidewalk toward the street. They passed near the garage door. The dog alerted, pulling the detectives from the sidewalk toward the garage door. At the garage door, the dog alerted to contraband. At that point, one of the detectives could smell the odor of live marijuana plants coming from the garage. A search warrant was obtained and the officers found marijuana and equipment for the growing of marijuana.

We affirm the denial of the motion to suppress evidence on authority of State v. Jardines, 9 So.3d 1 (Fla. 3d DCA 2008), jurisdiction accepted, 3 So.3d 1246 (Fla.2009).

Affirmed.


text:
    STATE of Florida, Appellant, v. Vernon COOK, Appellee.
    No. 4D08-104.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, J.

The State appeals a judgment withholding adjudication and placing the defendant on probation for possession of cocaine. It argues the trial court erred in refusing to adjudicate the defendant guilty, pursuant to section 775.08435(1)(c), Florida Statutes (2007). We agree and reverse.

The State charged the defendant with possession of cocaine (Case No. 07-4462CF10A). The defendant’s scoresheet listed a possession of cocaine offense, a third degree felony, in his prior record. At the plea hearing, the prosecutor advised the court that the defendant had entered a plea in another case (Case No. 07-6980CF10A) before a different judge and had received a withhold of adjudication even though that charge arose after the present charge. The prosecutor then offered the defendant an adjudication and eighteen months probation.

The trial court noted that the present case had an older case number and involved an earlier arrest. The court therefore concluded it was the defendant’s first offense. The prosecutor argued that the defendant was ineligible for a second withhold of adjudication. Defense counsel acknowledged that the defendant had received a prior withhold and 18 months probation on the second charge, but argued he was still entitled to have the adjudication withheld because the present case was actually the first offense. The trial court told the defendant that if he pled open to the court, the court would consider withholding adjudication. The defendant entered an open no contest plea.

The trial court then withheld adjudication and sentenced the defendant to 15 months probation because it was his first offense and had occurred prior to the other charge. The State objected to the sentence, and filed this appeal.

The law is straightforward on this issue. A “court may not withhold adjudication of guilt upon the defendant for ... [a] third degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense.” § 775.08435(1)(c), Fla. Stat. (2007). The only exceptions to this rule are when the prosecutor requests “in writing that adjudication be withheld” or if the “court makes written findings that the withholding of adjudication is reasonably justified based on circumstances or factors in accordance with those set forth in s. 921.0026.” § 775.08435(1)(c)1. & 2. Thus, the statute limits the amount of felonies for which adjudication can be withheld. See State v. Fulmore, 2 So.3d 365 (Fla. 4th DCA 2008).

Regardless of which crime occurred first, once a defendant has been graced with a withhold of adjudication, section 775.08435(1)(c) prohibits a second withhold of adjudication if the felony offense did not “arise from the same transaction” and neither exception applies. We therefore reverse and remand the case to the trial court for either re-sentencing or for legally sufficient written reasons to withhold adjudication in accordance with section 921.0026, Florida Statutes.

Reversed and Remanded.

STEVENSON and TAYLOR, JJ., concur.


author: STEVENSON, J.

text:
    Javier Arcos DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-972.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Javier Arcos Diaz was tried by jury and convicted of two counts of impersonating a police officer and two counts of robbery. In this appeal, Diaz challenges his conviction for the robbery of Miguel Morales, arguing the evidence was insufficient to permit a jury to find that Morales was placed in fear during the course of the taking. We reject Diaz’s argument and affirm.

To sustain a conviction for robbery, the State must prove the following elements: (1) the taking of money or property from another; (2) the taking was with the intent to permanently or temporarily deprive the owner of the money or property; and (3) in the course of the taking, “there is the use of force, violence, assault, or putting in fear.” See § 812.13(1), Fla. Stat. (2006). “The fear contemplated by the statute is the ‘fear of death or great bodily harm.’” Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th DCA 2003) (quoting Smithson v. State, 689 So.2d 1226, 1228 (Fla. 5th DCA 1997)). The “putting in fear” element of robbery is determined not by whether the victim himself was actually placed in fear, but by whether a reasonable person under the circumstances would be placed in fear. Id. Thus, the question is “whether a jury could conclude that a reasonable person, under like circumstances, would have felt sufficiently threatened to accede to the robber’s demands.” Id. As the court in Smithson explained, “[t]his is so even where the victim specifically states that he was never in fear during the course of the robbery.” 689 So.2d at 1228.

In this case, Morales testified that he was riding his bicycle north when a man in a car, heading south, began shouting at him and gesturing for him to stop. Morales kept going. The car then made a u-turn and stopped right next to Morales. The man in the car was wearing a shirt with the word “sheriff’ on it and told Morales to stop. According to Morales, the man in the car identified himself as a detective and told him it was a good thing he had stopped because, if he had not, he would have broken his leg with a gun. Morales admitted he did not see the gun. Next, the man in the car told Morales that he needed to see what was in Morales’ pockets and instructed Morales to take everything out. Morales complied, handing over his wallet and his passport. Morales testified that the man “put his hands underneath,” threw the wallet and the passport from the car and drove away. The $800 and 500 pesos that had been in Morales’ wallet were missing. Morales testified that he complied because he believed that the defendant was a police officer and denied that he was in fear at the time of the robbery.

The evidence at the instant trial was sufficient to permit a jury to conclude that a reasonable person “would have felt sufficiently threatened to accede to the robber’s demands,” see Magnotti, 842 So.2d at 965. When Morales failed to stop at the defendant’s commands, the defendant made a u-turn in his car and stopped next to Morales. After identifying himself as a detective, the defendant told Morales it was a good thing he had stopped because, had he failed to do so, the defendant would have broken his leg with a gun. Then, having just revealed that he was carrying a firearm and would have seriously injured Morales had Morales failed to comply with his previous instructions, the defendant directed Morales to hand over the contents of his pockets. “If the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the pwpose of the robbery statute, and actual fear need not be strictly and precisely shown.” Smithson, 689 So.2d at 1228.

Accordingly, the “fear” element in this case was a factual issue for the jury and its determination that the evidence proved the crime of robbery is consistent with the controlling law. The defendant’s conviction is therefore affirmed.

Affimed.

HAZOURI and DAMOORGIAN, JJ„ concur.


text:
    STATE of Florida, Appellant, v. William ANDERSON, Jr., Appellee.
    No. 4D08-1422.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Thomas Montgomery of Thomas Montgomery, P.A., Belle Glade, for appellee.
   PER CURIAM.

The state appeals from a final order granting William Anderson, Jr.’s, motion for discharge based upon a speedy trial violation. Because Anderson never filed the requisite “Notice of Expiration of Speedy Trial Time” as the applicable rule specifically requires, we reverse.

The state filed a three-count Information against Anderson charging him with possession of cocaine, possession of marijuana, and reckless driving.

Rule 3.191(a), Fla. R.Crim. P., provides that “[e]very person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony.” Anderson’s speedy trial period expired on November 14, 2007.

On November 21, 2007, Anderson filed a motion for discharge. In a hearing on March 19 and 20, 2008, the state acknowledged that it received the motion for discharge but argued that such a motion was insufficient because it was not preceded by a “Notice of Expiration of Speedy Trial Time” which would have triggered a fifteen day recapture period as provided in rule 3.191(p). That rule provides:

Remedy for Failure to Try Defendant within the Specified Time.
(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

The trial court granted Anderson’s motion for discharge holding that the state’s argument was “no more than form over substance.” The state now appeals. We reverse based on State v. Demars, 848 So.2d 436 (Fla. 4th DCA 2003), in which this court explained that strict compliance with the rule is not optional:

[A] notice, not a motion, is required to trigger the expiration of recapture period. * * * Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. When the notice is styled as a motion for discharge, a clerk accepting it for filing may not distinguish it from the myriad of motions filed in the clerk’s office. We cannot expect the non-lawyer personnel of the clerk’s office to pour over motions to determine whether they seek a speedy trial discharge, requiring the court’s immediate attention. Moreover, the state attorney’s office may not treat a motion for discharge with the same urgency as a notice. Strict compliance with the rule is a practical necessity.

Id. at 438-39.

As we stated in Demars, the rule is specific and easy to follow. We therefore reverse the order of discharge and remand for further proceedings. We acknowledge that the First District has reached a contrary result in Quallo v. State, 856 So.2d 1100 (Fla. 1st DCA 2003), and certify conflict.

Reversed and remanded; conflict certified.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


author: WARNER, J.

text:
    James SEBASTIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1614.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied Sept. 3, 2009.

      Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In appealing his conviction for grand theft, the appellant raises multiple issues of error. Only three issues merit discussion. The appellant claims that he could not be convicted of the crime of grand theft in excess of $100,000 because the theft consisted of two separate transactions each of which was less than $100,000, and the information did not allege that they were part of a scheme or course of conduct. We hold that he waived the defect in the information by not raising it to the trial court. Second, he contends that the state did not prove an intent to steal, but we conclude that the state presented sufficient evidence to support a felonious intent. Finally, he maintains that the court ordered restitution in excess of the victim’s loss. However, not only did he agree to the restitution amount, but the evidence did not show that the victim received excessive compensation. Therefore, there is no error. We affirm.

The appellant, Sebastiano, convinced the victim, Sclafani, to purchase six lots in a subdivision for $90,000. Sebastiano’s company, Three Golden Holdings, together with Leo Cueto and Joan Rogers, owned lots in the subdivision. Sclafani wrote a check to Sebastiano for $90,000, and Se-bastiano told him that he would receive warranty deeds to the lots within two weeks. When the deeds did not arrive, Sebastiano gave Sclafani various excuses. Sebastiano then interested Sclafani in a seventh lot, for which Sclafani gave Se-bastiano a check for $37,000, with a notation of the lot and block number. He told Sclafani that the lot could be “flipped” for $75,000 immediately. Nine months later, and after multiple excuses, Sebastiano gave Sclafani seven quit-claim deeds to the lots, even though he had promised warranty deeds.

Sclafani discovered that of the original six lots owned by Three Golden Holdings, five had been transferred to Cueto several days after Sclafani had given the $90,000 check to Sebastiano. However, Sebastiano received all of the money himself, Sclafa-ni’s check having been made out to Sebast-iano personally. Sclafani called Sebasti-ano, who promised to correct the situation, but he never did. Nearly a year after he had given Sebastiano the first check, Scla-fani contacted law enforcement which led to Sebastiano’s arrest for grand theft and organized fraud.

As part of its case, the state showed that another individual actually owned the lot for which Sclafani paid $37,000. Sebasti-ano had tried to purchase the lot for $15,000 around the time that Sclafani gave him the check for the same lot. Sebasti-ano could not complete the purchase and a real estate friend of Sebastiano’s actually purchased the lot. Sebastiano did not own the lot when he transferred it to Sclafani.

On the defense side, Leo Cueto, Sebasti-ano’s partner in the subdivision, testified. He and Sebastiano owned many lots together. The lots for which Sclafani paid $90,000 were transferred to Cueto to protect them from a potential judgment against Three Golden Holdings. He and Sebastiano agreed that they both continued to own 50% each of the lots, but from the recorded deeds it appeared that Cueto owned them.

Sebastiano testified that he had found the subdivision lots which were owned by TransAmerica Corporation. He discovered that a judgment had been recorded against the lots but it would expire, if not renewed in September 2005. He purchased the lots from TransAmerica and the next day sold them to Sclafani. He intended to give Sclafani a quitclaim deed to the lots when the judgment expired, some eleven months later. As to the lot Sclafani purchased for $37,000, Sebastiano claimed that Sclafani had written down the wrong lot on the check. When he discovered the mistake, he tried to offer a corrective deed or a refund to Sclafani, but he refused.

The trial judge heard the evidence in a non-jury trial. Based upon the evidence presented, he found Sebastiano guilty on both charges. At sentencing, Sebastiano agreed to a restitution of $133,101.69, which represented the $127,000 that Scla-fani paid plus his attorney’s fees. The court sentenced Sebastiano to fifteen years in prison on the organized fraud count and ten years of probation on the grand theft count. When the state suggested that sentencing on both charges could violate double jeopardy, the state chose to proceed on the grand theft charge, and the court sentenced Sebastiano to fifteen years’ imprisonment followed by ten years’ probation.

Sebastiano moved to mitigate his sentence shortly after sentencing. He also moved to correct an illegal sentence. As to mitigation, Sebastiano argued for a lesser sentence, because he had already paid the restitution in full. As to the illegal sentence, he argued that Sclafani had received one lot, for which Sebastiano should have been given credit on'restitution. At the hearing Sclafani agreed to transfer the lot back to Sebastiano. The trial court denied the motion to correct, concluding that Sebastiano had not shown the value of the lot such that it could be deducted from the restitution amount. However, the court did mitigate his sentence to ten years in prison followed by probation. Se-bastiano appeals.

Sebastiano argues for the first time in his initial brief that the court could not adjudicate him guilty of grand theft of property in excess of $100,000, because the evidence at trial proved that the theft consisted of two separate transactions, neither of which exceeded $100,000. The state, on the other hand, notes that the conduct constituted a continuing “scheme or course of conduct,” as is evident from the trial court’s finding him guilty of organized fraud, which also requires an ongoing scheme. Sebastiano responds that the information did not charge a “scheme or course of conduct.” See State v. Davis, 890 So.2d 1242 (Fla. 4th DCA 2005). We hold that the issue was not properly preserved, because it involves a technical defect in the information, which could have been corrected had it been properly raised at trial. Further, the evidence showed that Sebastiano engaged in a scheme or course of conduct in which he managed to take more than $100,000 from Sclafani.

The theft statute provides in section 812.012(10)(c), Florida Statutes (2005), that the value of separate properties involved in thefts committed in “one scheme or course of conduct” may be aggregated in determining the grade of the offense. Sebasti-ano was charged with both organized fraud and grand theft. Count I, the organized fraud count, charged:

Organized Fraud-$50,000 or More
October 20, 2004 through August 17, 2005, James Sebastiano did engage in a systematic, ongoing course of conduct with intent to defraud one or more persons ....

Count II, the first-degree grand theft count, charged:

October 20, 2004, through August 17, 2005, James Sebastiano did unlawfully and knowingly obtain or use or endeavor to obtain or use the property of another, to wit: U.S. Currency, the property of Joseph Sclafani as owner or custodian, of the value of $100,000 or more.

Sebastiano was charged and tried on both counts, and the trial court returned a guilty verdict on both, but later determined that Sebastiano could not be convicted of both because it would be a double jeopardy violation. Pizzo v. State, 945 So.2d 1203 (Fla.2006) (double jeopardy precludes convictions for both grand theft and organized fraud based on the same conduct). Based on this, the trial judge adjudicated Sebastiano only on the grand theft count. At no point did Sebastiano move for judgment of acquittal or for dismissal of the information based upon the failure to include the term “scheme or course of conduct.”

We consider this a pleading issue, and Sebastiano has waived this defect. Florida Rule of Criminal Procedure 3.190(c) provides:

Time for Moving to Dismiss. Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion, to dismiss within the time herein-above provided shall be considered waived.

(emphasis added). The evidence sufficiently showed a scheme or course of conduct permissible to aggregate the two transactions for purposes of the theft statute. The court found such a scheme by also finding Sebastiano guilty of organized fraud, which also required an ongoing course of conduct. Therefore, this is not a case where the evidence failed to prove the crime. It is merely a pleading defect, which was waived.

State v. Davis, 890 So.2d 1242 (Fla. 4th DCA 2005), is distinguishable because of its procedural posture. There, the defendant was charged with one count of grand theft in the third degree (which requires proof of an amount over $300) based on allegations that he took money from a tenant twice, but neither time amounted to $300. Davis filed a motion to dismiss on the ground that the undisputed evidence showed two separate thefts neither of which exceeded $300. The trial court granted dismissal. The state appealed, and we affirmed, finding that absent an allegation in the charging document that both thefts occurred as part of the same scheme or course of conduct, the undisputed facts did not constitute a prima facie case of grand theft.

In this case, no motion to dismiss was made. Unlike Davis, the evidence in this case showed a course of conduct in Sebast-iano’s dealings with Sclafani sufficient to aggregate the two transactions. Under these facts, the defendant waived the defect in the information and cannot be heard to complain on appeal.

Sebastiano argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the intent element of grand theft. Under section 812.014, Florida Statutes (2005), the state was required to prove that Sebastiano knowingly obtained or used, or endeavored to obtain or use, the property of Sclafani with the intent to, either temporarily or permanently, deprive Sclafani of the right to the property or the benefit of the property, or appropriate the property to his own use.

“[Ijntent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence.” Grover v. State, 581 So.2d 1379, 1380 (Fla. 4th DCA 1991). Intent is a question for the trier of fact to decide based upon all factual inferences. Method v. State, 920 So.2d 141, 143 (Fla. 4th DCA 2006); Rosen v. State, 940 So.2d 1155, 1160 (Fla. 5th DCA 2006). Often, circumstantial evidence is the only way to prove intent. Sewall v. State, 783 So.2d 1171 (Fla. 5th DCA 2001).

The state offered evidence which was inconsistent with Sebastiano’s theory of innocence. The state is not required to conclusively rebut every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Parker v. State, 795 So.2d 1096, 1099 (Fla. 4th DCA 2001). Once that threshold burden is met, it is the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law, 559 So.2d 187, 189 (Fla.1989).

There was sufficient evidence to show intent on Sebastiano’s part to deprive Scla-fani of his property, at the very least temporarily. Sclafani testified that Sebastiano had agreed to sell him six lots on which he would receive warranty deeds within two weeks. Three Golden Holdings had purchased those lots one day before by quitclaim deed, and Sebastiano knew that a judgment clouded their title — one that would not expire for almost another year. Sclafani wrote a check for $90,000 in the name of James Sebastiano, not Three Golden Holdings, even though the corporation purchased the property from Trans-America. Sebastiano’s felonious intent was clear on October 20, 2004, when he had no clear title to the TransAmerica lots to transfer to Sclafani. Additionally, rather than giving Sclafani the deeds and telling him to hold them until the Department of Professional Regulation’s judgment expired, Sebastiano instead transferred the title to the properties owned by Three Golden Holdings to Cueto, as trustee, in order to protect them from a judgment against his own corporation. Five of the six lots had been “moved” to Cueto, as trustee, seven days after Sclafani had given Sebastiano the check for $90,000, so the deeds given to Sclafani were worthless as to five of the properties.

As to the other transaction, Sebastiano did not own, nor did he even have a contract on, the lot he “sold” to Sclafani for $37,000, again promising that Sclafani would receive a warranty deed shortly. Sebastiano knew he did not have the resources to purchase the lot. All this is circumstantial evidence that shows an intent to permanently or at least temporarily deprive Sclafani of his property. Although Sebastiano presented his own version of events, the foregoing facts are inconsistent with his contention that this was merely a business deal gone bad. The trial court did not believe his evidence.

Finally, Sebastiano claims that the court .erred in refusing to deduct $15,000 from the amount of his restitution payment, because Sclafani actually received one lot. However, he stipulated to the amount of restitution. While Sclafani agreed to quitclaim the single lot to Se-bastiano’s holding company, Sebastiano refused to accept the deed unless Sclafani agreed to settle the civil action he had filed against Sebastiano.

The trial court denied any correction of the restitution amount, because it determined that the evidence presented did not prove that the lot was worth $15,000. We agree that the total evidence presented both at trial and at the restitution hearing provides competent substantial evidence to uphold the trial court’s determination. Even assuming that the land was worth $15,000, Sclafani received only a quitclaim deed to the property, not the warranty deed he was promised. There is no evidence that he has clear title to the property and has an interest valued at $15,000. Given the fact that there was a judgment against the property when Sebastiano’s company purchased it, we cannot assume that Sclafani has clear title to the property at this point. We cannot say that the restitution amount was in excess of the damages suffered by Sclafani. Moreover, Sclafani has an ongoing civil dispute with Sebastiano over the lots. The amount of any restitution may be set off against any civil recovery. See Kirby v. State, 863 So.2d 238 (Fla.2003). Therefore, if Sebast-iano proves in that case the actual value of the lot to Sclafani, the amount can be set off against any civil recovery.

Sebastiano’s brief raises eleven other issues arising from this non-jury trial. These remaining issues are meritless, harmless, or not properly preserved.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

      . Section 812.014 states:
      (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive die other person of a right to the property or a benefit from the property.
      (2)(a)l. If the property stolen is valued at $100,000 or more ... the offender commits grand theft in the first degree....


author: POLEN, J.

text:
    Scott WYNKOOP, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1467.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied Aug. 5, 2009.

      Richard G. Bartmon of Law Office of Richard G. Bartmon, Boca Raton, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Scott Wynkoop, was charged by information with manslaughter by culpable negligence and vehicular homicide of his nine-year-old stepdaughter, Samantha Rosales, for events occurring on May 17, 2005. Following a jury trial, Wynkoop was convicted of both charges. The trial court entered a non-statutory downward departure sentence of ten years in prison, suspended, with ten years of probation being imposed. Wynkoop appeals his conviction, and the State cross-appeals the sentence. We reverse as to both.

On the afternoon of May 17, 2005, Wyn-koop picked up Samantha from her aftercare program. Before driving home, Wyn-koop stopped at Publix. During the ride home, Samantha sat in the backseat on the driver’s side of Wynkoop’s vehicle. Wyn-koop drove north on Dixie Highway in the same direction as an approaching freight train. The windows of Wynkoop’s vehicle were up, the radio was on, and Wynkoop was listening to Samantha talk.

The freight train, comprised of 138 rock hauling cars pulled by three engines, was travelling north on the railroad tracks at forty-five miles per hour parallel to the road Wynkoop was on. As the train approached the crossing at Hidden Valley Boulevard, the engineer sounded the horn four times. Some witnesses recalled hearing the sound of the horn and others did not. The gate was down blocking the two westbound lanes of traffic, and the lights on the gate were flashing. Wynkoop was familiar with the area because he lived nearby on Hidden Valley Boulevard.

Wynkoop made a left-hand turn, crossed a broken yellow lane marker, and drove around the gate to cross the railroad crossing. As Wynkoop crossed the railroad tracks, the train struck his vehicle from behind causing his car to spin across the tracks, striking a railroad battery box and a signal box before stopping. Wynkoop climbed out of the vehicle having sustained minor injuries. Samantha died having sustained a broken collar bone, broken ribs, a torn spleen, injury to her lungs, injury to her liver, brain injuries, and internal bleeding.

Prior to trial, the State filed a motion in limine to preclude irrelevant defense evidence. In its motion, the State maintained that Wynkoop had attempted to “beat” the train by weaving around the closed railroad gates, ignoring the red flashing lights and the bells associated with the gates. The State argued that expert testimony regarding whether the light at the intersection was green allowing Wynkoop to turn left, whether the gate at the railroad crossing was too short, whether the distance between Dixie Highway and the railroad crossing was too short, and whether the train’s horn sounded long enough under the applicable regulations should not be admitted. The railroad crossing at Hidden Valley Boulevard met all local, state, and federal requirements, had never been determined to be an inherently dangerous crossing, and had never been the site of prior fatalities. The State pointed out that evidence of the railroad’s negligence was inadmissible unless the railroad’s negligence was a superseding, intervening cause of the crash.

Wynkoop filed a motion in opposition to the State’s motion to preclude irrelevant evidence in which he argued that but for the alleged defects in the railroad crossing, the accident and Samantha’s death would never have occurred, and thus, that expert testimony and other evidence must be admitted in order for him to present his defense. Specifically, Wynkoop argued that the evidence would show that the turn path at the intersection “funneled” his vehicle into an area not blocked by the railroad crossing gate; that the green light at the intersection allowed him to turn left; that he did not hear a train horn sound before the accident; and that because of the defects he had a split second to avoid the train.

Following jury selection, the trial judge granted the State’s motion. The trial judge found that Wynkoop was entitled to the defenses he listed in his motion in opposition but that expert testimony was not warranted. The court found that the two most important facts for Wynkoop— that the light was green allowing him to make the left turn and that the railroad gate was too short to completely cover both westbound lanes of traffic — were not in dispute. The court also determined that expert testimony regarding these facts was not admissible because whether the defenses were proven was a jury issue and the design of the crossing was clearly not the sole proximate cause of the accident. Expert testimony which drew conclusions about whether the design of the railroad crossing met state and federal regulations was not necessary.

The trial court allowed Wynkoop to make a proffer of evidence. Wynkoop’s written proffer listed three expert witnesses: Harold Rugh, James Sottile, and Rick Swope.

Rugh worked for twenty-five years as a locomotive engineer, trainmaster, master mechanic, equipment inspector and chief inspector. Rugh worked an additional twenty-six years with the Federal Railway Administration investigating accidents and developing, enforcing, and interpreting federal regulations. During his fifty-two years of experience, Rugh had instructed engineers on the proper sounding of train horns “thousands of times,” had inspected train horns approximately thirty times a week for twenty-five years, and had read event data recorders “hundreds of times.” Rugh’s examination of the event data recorder from the train which struck Wyn-koop revealed that the train engineer had sounded four blasts which were less than half as long as they should have been and were separated by silences five times as long as they should have been. However, as the State’s expert testified, the black box only records how long the horn was activated but in reality horns can continue to sound after they are done being activated. Rugh concluded that the horn blasts were not sufficiently loud, lengthy or continuous enough to alert drivers at the crossing. Finally, Rugh believed that the duration of the soundings violated Florida law and federal regulations and that “[b]e-cause of these short soundings, the child is dead.”

Sottile worked in the railroad industry for forty years between the signal department of the Long Island Railway and the Federal Railroad Authority as a train signal and control inspector. Sottile proffered that drivers in the northbound and southbound lanes on Dixie Highway had green lights allowing them to turn toward the crossing even as the train approached. The green lights meant there was not total preemption — all traffic stopped in all directions — -at the intersection which violated Florida law and would have prevented Wynkoop’s accident.

Sottile and Swope explained that the gate arm which descended at the Hidden Valley crossing did not entirely block both westbound lanes and that this defect in conjunction with the lack of a median before the crossing allowed a vehicle to pass through the crossing. Sottile concluded that a median would have prevented Wyn-koop’s vehicle from entering the crossing and that the lack of a median together with the shortness of the gate arm contributed to Wynkoop’s accident. Sottile stated that the length of the gate arm violated federal regulations.

Finally, Swope found that the road lines east of the Hidden Valley train crossing would allow and guide a driver to drive around the gate arm into the crossing. Swope concluded that there was no physical evidence that Wynkoop was attempting to beat the train.

Wynkoop requested permission to cross-examine the State’s homicide investigator regarding whether he had considered an unsolicited letter from Paul Bodner, an owner of a consulting firm, which stated that the railroad crossing was unsafe and in violation of state and federal regulations. Defense counsel argued that it was relevant to show that the investigator’s failure to “follow up” on the letter indicated the inadequacy of his investigation. The State countered that whether the investigator followed up on the letter was irrelevant because the investigator had been assured by the authorities that the crossing met all applicable regulations, the letter was unsolicited, and the investigator believed Bodner was a “kook.” The trial court ruled that the cross-examination would not be allowed per its earlier ruling excluding evidence.

The supervisor of Boca Raton’s traffic signal department testified that when a train passed through the Hidden Valley Boulevard crossing, the traffic lights for Dixie Highway remained solid green. He explained that if the light went to red under such circumstances, it would cause conflicting signals and rear-end accidents and would limit the effectiveness of traffic control because people would eventually start running the light. Defense counsel asked the supervisor if there was any reason not to stop traffic in all directions by total preemption, and the supervisor replied that it would go against the expectancy of the drivers, but that it was possible to do. Finally, defense counsel asked the supervisor if there was a mechanical, technical, or engineering reason to not stop traffic in all directions when a train is crossing, and the supervisor replied that it could be done, but it was not common practice. Defense counsel argued that the supervisor’s testimony “opened the door” for defense evidence regarding proper traffic signalization and total preemption at the subject intersection. The trial court rejected defense counsel’s argument, explained that he could not open his own door, and reiterated its earlier ruling explaining that expert testimony was not admissible because it would not prove an intervening superseding cause of the accident.

A jury found Wynkoop guilty as charged. Prior to sentencing, the State nolle prossed the vehicular homicide charge. The trial court adjudicated Wyn-koop guilty of manslaughter by culpable negligence and issued a suspended sentence of ten years imprisonment with a probationary term of ten years. As a special condition of probation, the court required Wynkoop to serve 364 days in jail on weekends. This condition was later modified to require Wynkoop to serve 364 consecutive days in jail. Wynkoop now timely appeals and the State cross-appeals.

Wynkoop argues the trial court erred in granting the State’s motion in limine to exclude defense evidence that the design of the railroad crossing and the engineer’s failure to blow the train horn in keeping with regulations caused the accident. Wynkoop asserts that the court’s decision violated his Sixth Amendment right to present a defense. The State replies that the evidence was properly excluded because third party negligence was not the sole proximate cause of the accident and cross-appeals the trial court’s determination that Wynkoop was entitled to a downward departure.

A trial court’s decision regarding the admissibility and scope of expert testimony is reviewed for an abuse of discretion. Simmons v. State, 934 So.2d 1100, 1116 (Fla.2006).

The State relies, in part, on Filmon v. State, 336 So.2d 586, 591 (Fla.1976), to support its proposition that, unless it was the sole proximate cause of the accident, neither the negligence of the deceased nor that of a third party is a proper defense to manslaughter based on culpable negligence in operating a motor vehicle. In Filmon, defendant argued that the court erred in refusing to instruct the jury regarding the left-hand turn statute because the jury should have considered the statute and decedent’s conduct before determining whether the defendant’s conduct was the proximate cause of the decedent’s demise. Id. The Florida Supreme Court held that the trial court had not erred in refusing to instruct the jury regarding the left-hand turn statute because “the conduct of the decedents or the decedents’ driver could only be controlling if it were the Sole proximate cause of the accident.” Id.

Other cases have reiterated the Filmon Court’s holding. See Keller v. State, 849 So.2d 385, 387 (Fla. 2d DCA 2003) (“In a vehicular homicide prosecution, evidence of a victim’s negligence is relevant only if the victim’s act was the sole proximate cause of the accident that caused the victim’s death”); Brimmer v. State, 541 So.2d 1307, 1308 (Fla. 4th DCA 1989) (finding no error in trial court’s refusal to instruct the jury that the decedent could have been the sole cause of the accident where there was no “reasonable view of the evidence upon which a jury could conclude that the victim’s act of failing to yield the right of way was the sole proximate cause of the accident”). Finally, it has been noted that cases where the decedent’s conduct is admissible as a defense have all involved circumstances where the deceased’s conduct alone caused the accident. Reaves v. State, 979 So.2d 1066, 1069 (Fla. 1st DCA 2008).

In the present case, the trial court found that any third party negligence in the design of the railroad crossing or operation of the train was not the sole proximate cause of the accident and Samantha’s death, and thus, that evidence of that negligence was inadmissible. However, the present ease does not fall squarely within the holdings of Filmon and its progeny because the evidence at issue here involved expert testimony regarding the acts or omissions of third parties whereas the Filmon line of cases address the issue of whether evidence is admissible to show the negligence of the decedent.

As the State points out, Wynkoop was not entirely deprived of his ability to present a defense because of the court’s ruling. Instead, he was denied the ability to present expert testimony. Wynkoop elicited the testimony of an eyewitness who observed cars crossing the broken yellow line when turning left, an expert witness who testified regarding the train’s event data recorder, eyewitnesses who testified that Wynkoop’s light was green and there was no red turn arrow when Wynkoop made the left turn into the crossing, eyewitnesses who did not recall hearing the train’s horn, and witnesses who testified that no second gate or median prevented a driver from navigating around the gate blocking the westbound traffic. Finally, photographs and diagrams of the intersection and the traffic signalization plan for the intersection were admitted into evidence allowing the jury to appreciate the design of the subject railroad crossing.

Thus, the jury was presented with evidence of the design of the railroad crossing and the operation of the train so that they could consider Wynkoop’s defenses. Wyn-koop acknowledges that lay testimony was elicited regarding the design of the crossing and operation of the train horn but argues that the essence of his defense was undermined because his expert witnesses were not allowed to testify regarding the causal link between those conditions and the accident.

Wynkoop asserts that the excluded expert evidence regarding the design of the crossing and the operation of the train horn raised reasonable doubt as to whether his conduct caused the accident, and thus, should have been admitted. Here, Wynkoop relies heavily on Florida courts’ broad policy that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Donohue v. State, 801 So.2d 124, 126 (Fla. 4th DCA 2001)(quoting Rivera v. State, 561 So.2d 536, 539 (Fla.1990)).

In Donohue, the defendant was found guilty of second degree murder and robbery after he allegedly beat a man to death and stole his belongings. 801 So.2d at 124-25. Undisputed evidence showed that paramedics unsuccessfully attempted to intubate the victim. When the victim arrived at the hospital, a physician determined that the paramedics had inserted the tube down the esophagus instead of the trachea causing asphyxiation. The trial court refused to allow a defense expert to testify that the mal-intubation could have caused the victim’s death. Id. at 125. This court held that the trial court erred in refusing to allow such evidence because limiting the admissibility of evidence of maltreatment to cases in which that treatment was the sole cause of the death would hinder Florida’s broad policy of admitting evidence which tends to raise reasonable doubt. Id. at 126.

We find Donohue particularly instructive in the present case. By refusing to allow defense expert testimony regarding the design of the subject railroad crossing and how that design may have contributed to the accident, the trial court infringed on Wynkoop’s right to present a theory of defense and to hold the State to its burden of proving beyond a reasonable doubt that his actions rose to the level of culpable negligence. While the trial court may certainly place reasonable parameters on the scope of expert evidence, to entirely exclude such evidence in this case violates the defendant’s Sixth Amendment rights.

The State cross-appeals the trial court’s issuance of a downward departure sentence arguing that it is not supported by legal grounds. Whether there is a valid legal ground for a downward departure is a question of law, to be reviewed de novo. State v. Walker, 923 So.2d 1262, 1264 (Fla. 1st DCA 2006). A trial court’s legal ground for a departure must be valid and supported by competent substantial evidence. State v. Schillaci, 767 So.2d 598, 600 (Fla. 4th DCA 2000). “A departure from the recommended guidelines sentence is discouraged unless there are circumstances or factors which reasonably justify the departure....” § 921.0016(2), Fla. Stat.

Wynkoop faced a minimum sentence of 111.15 months. At the sentencing hearing, Samantha’s mother and Wynkoop’s wife, Marissa Wynkoop testified. Marissa begged the court not to sentence Wynkoop to prison time because she had lost her mother, her father, and her daughter, and her brother was in serious trouble. Marissa explained that Wynkoop was her emotional support. Wynkoop wrote a letter to the court in which he explained that if he served prison time, his wife and his mother would lose their homes and would otherwise be in financial turmoil.

The trial court found that none of the grounds argued in Wynkoop’s motion applied but that a nonstatutory mitigator required a downward departure. Specifically, the court found that “the interest of the victim as represented by the mother” supported the departure and “the evidence is that if Scott Wynkoop goes to prison right now, the mother will suffer, probably lose her home and suffer a number of other ways emotionally and otherwise.” The court imposed a suspended sentence of ten years imprisonment with a probationary term of ten years. As a special condition, the court required Wynkoop to serve 364 days in jail on the weekends' — a condition which was later modified to be served as 364 consecutive days instead of weekends.

The case which most clearly demonstrates the issue argued by the State is Rafferty v. State, 799 So.2d 243 (Fla. 2d DCA 2001), in which the defendant was convicted of DUI manslaughter and DUI serious bodily injury after he drove while intoxicated and caused an accident resulting in the death of his six-year-old son and pai’alysis of his fiancée. Id. at 244. The Second District held that the trial court erred in granting Rafferty’s motion for a downward departure on the basis that his child had died, his fiancée had been severely injured, and the family needed his financial support. Id. at 248. The court pointed out that the legislature did not intend for sentences to be decreased when the victims are family or loved ones and that “it would not be good policy for the legislature to punish those with families to support less than those without families.” Id.

A trial court may not issue a downward departure on the basis it did in the present case. However, should Wynkoop be convicted again, the court may reconsider whether any of the statutory parameters justify such a departure. Finally, while we recognize that granting a downward departure based on family suffering is not currently permissible, we think it appropriate for the legislature to consider whether the applicable statute should include these grounds in a tragic case such as this.

Reversed and remanded for proceedings consistent with, this opinion.

STEVENSON and DAMOORGIAN, JJ., concur.


text:
    P.I., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D08-2831.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Thomas J. Butler, Miami Beach, for appellant.
    Karla Perkins, Assistant District Legal Counsel, for appellee, Department of Children and Families.
    Hillary S. Kambour, Guardian ad Litem Program.
    Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
   PER CURIAM.

P.I., the mother, appeals the final judgment terminating her parental rights as to her two children, A.N. and T.M., Jr. Finding that the judgment is supported by clear and convincing evidence, we affirm.

P.I. has two children, T.M., Jr., born September 6, 2007, and A.N., born March 8, 2006. The children were placed in shelter care after A.N. was taken to the hospital because he was vomiting excessively. This had been going on for a week. The child was lethargic and had various bruises on his face and body. The bruises seemed to be a week old. There was fluid on the brain resulting from trauma. Testing ruled out any possible cause other than trauma. There was testimony that the brain injury was four to six weeks old. The Child Protection Team diagnosed severe abuse.

The trial court found that A.N.’s stepfather (T.M., Sr.) inflicted these and other injuries. P.I. was aware that T.M., Sr. abused A.N.; P.I. had left the home on three occasions because of the abuse, but returned each time. P.I. had witnessed T.M., Jr., being force-fed by the father to the point where the child had bruises on his face. She did not do anything to avoid further abuse.

The parents had a history of DCF abuse reports. The step-father had abused A.N. on three prior occasions. The step-father also hit P.I. and she was afraid of him. P.I. and her own mother have a history of mental illness. There was testimony that P.I. had attempted suicide several times, did not take prescribed medications, and felt she did not need them. She did not follow up on referrals for services.

The Department of Children and Family Services [“DCF”] sought to terminate the mother’s parental rights as to both children. DCF asserted that under section 39.806(1)(c), Florida Statutes (2008), there was no way of establishing a safe parent-child relationship. It alleged that P.I. had failed to protect the child from abuse by the step-father and had no ability to protect the children. DCF further alleged egregious conduct by P.I. and T.M., Sr., as to each child pursuant to section 39.806(1)(f), Florida Statutes (2008).

There was expert testimony that P.I. was in denial that any abuse was occurring. There was also testimony that she is utterly unable to protect the children. The guardian ad litem also recommended termination as to both children.

The court terminated the mother’s parental rights as to both children. This appeal followed.

The trial court’s final judgment is amply supported by clear and convincing evidence. The record is replete with expert testimony, as well as the testimony from the mother herself, to support the trial court’s findings of egregious conduct and abuse, and finding that there is no way the mother can safeguard the children from further such conduct and abuse. The testimony demonstrates she failed to protect A.N., and was not even fully conscious that what the child was experiencing amounted to abuse.

This is a case where termination is the only alternative available to protect the children. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 572 (Fla.1991). The simple fact of waiting a month after A.N.’s brain injury, to take the child to the hospital — and then only after he had been vomiting and not speaking for days — supports the court’s finding. § 39.806(2), Fla. Stat. (2008). There is also every reason to believe that the abuse and neglect in this case will continue, placing the children at continued risk. A.C. v. Dep’t of Children & Families, 798 So.2d 32, 35 (Fla. 4th DCA 2001). Additionally, even a parent who is not present, or who does not personally participate in abuse, but who knowingly fails to protect the child from egregious abuse may have his or her parental rights terminated. C.S. v. State, Dep’t of Health & Rehabilitative Servs., 697 So.2d 914 (Fla. 2d DCA 1997). Based on the same reasoning, termination as to T.M., Jr., is also justified. K.A. v. Dep’t of Children & Family Servs., 880 So.2d 705, 708 (Fla. 2d DCA 2004). The mother witnessed the father’s treatment of the child but was never able to stop it. Here, DCF met its burden of presenting evidence to support the court’s finding that sections 39.01 and 39.806 were satisfied.

This opinion shall become effective immediately, notwithstanding the filing of any motion for rehearing.

Affirmed.


text:
    CURCI VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. Diana Santa MARIA, Appellee.
    No. 4D08-2260.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.

      Eric M. Glazer of Glazer & Associates, P.A., Hollywood, for appellant.
    Geoffrey D. Ittleman of The Law Offices of Geoffrey D. Ittleman, P.A., Fort Laud-erdale, for appellee.
   WARNER, J.

Curci Village Condominium Association appeals a final summary judgment in favor of a homeowner entitling the homeowner to keep improvements she has made to her property. She claimed that she had the assent of the president/developer of the condominium association. Because the evidence is clear that the condominium association rules were not complied with in that she did not receive written approval from the condominium board, we reverse.

This case arises out of landscaping modifications Santa Maria made to the backyard of her condominium unit. Santa Maria purchased a condominium unit in Curci Village from the developer Second Avenue Homes, LLC. Before control of the Association was transferred to the homeowners, Santa Maria inquired whether she could put “decorative improvements” in her backyard. Richard Shan, who was a manager of the developer as well as the president and director of the Association at the time, told her that he “didn’t see a problem with it” as long as it did not impede the water runoff, was not permanent in nature, and did not require a permit. He told her that stones and mulch would be fíne. When he gave her his “opinion” that it would be fine to make these modifications, he did so as president and director of the Association. Santa Maria never requested or obtained written permission from the Association to make the modifications. The board of directors did not discuss during any meeting the decision to grant Santa Maria permission to make modifications. Relying on Shan’s verbal representations, Santa Maria installed mulch beds, small paver stones, and crushed rock along the outside of the property. She also placed chairs and other leisui’e furniture in the area.

Shortly after control of the Association was turned over to the homeowners some four months later, the Association retained counsel who sent a letter to Santa Maria stating that the modifications were causing damage and flooding to the common areas and were violative of the declaration. Santa Maria filed a two-count complaint against the Association, alleging a claim for declaratory relief and requesting that the court enter an order finding that she was not required to remove the landscaping modifications. She also sought damages pursuant to section 718.303, Florida Statutes, due to her being forced to defend the landscaping modifications.

The Association answered, claiming that Santa Maria was in violation of the declaration of condominium. Section 22.14 of the declaration provides that “[n]o balconies, patios or terraces shall be extended, enclosed or decorate[d] in any way whatsoever by a Unit Owner without the prior written consent of the Board of Administration.” Likewise, section 22.06 states that “every Unit Owner shall ... [m]ake no alteration, decoration, repair, replacement or change of the Common Elements or to any outside or exterior portion of the building without the prior written consent of the Association.” Section 30.03 requires each unit owner to comply with the provisions of the declaration. The articles of incorporation and the bylaws reflect that the first board of directors consisted of Shan as president and two other individuals who acted as the vice-president and secretary/treasurer.

The Association and Santa Maria filed cross-motions for summary judgment. The Association asserted that the verbal permission from the developer was insufficient, because the declaration specifically required that she obtain the express written permission from the Association before the modifications were made. Santa Maria maintained that the verbal permission from Shan, as developer and president of the Association, and her reliance thereon estopped the Association from claiming that the modifications should be removed. Alternatively, she argued that the Association’s demand for the removal of the landscaping modifications was arbitrary and capricious.

After reviewing the motions, pleadings, deposition testimony, reports, and other record evidence, the court entered an order granting Santa Maria’s motion for summary judgment and denying the Association’s motion. The court found that Santa Maria was entitled to maintain the decorative mulch and rocks along the limited common elements of her property. The court awarded Santa Maria prevailing party attorney’s fees and costs pursuant to section 718.303, Florida Statutes, and section 30.03 of the declaration. Curci appeals this judgment.

The standard of review applicable to summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. The facts in this case show that the trial court erred in granting summary judgment to Santa Maria.

The declaration of condominium, which is the condominium’s “constitution,” creates the condominium and “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So.2d 452, 455-56 (Fla.2002). A declaration of condominium must be strictly construed. Palm Beach Hotel Condo. Ass’n v. Rogers, 605 So.2d 143, 145 (Fla. 4th DCA 1992). Two sections of the declaration required Santa Maria to obtain written permission of the board prior to making improvements or alterations to her property or the common elements. Santa Maria was required to comply with the provisions of the declaration pursuant to its own terms and section 718.303, Florida Statutes.

Santa Maria does not dispute that she did not obtain written consent prior to making the modifications. Instead, she maintains that the Association is estopped from claiming lack of compliance with the condominium documents because Shan, as president and director of the Association, gave her verbal permission to make the modifications. The essential elements of estoppel are “(1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State v. Harris, 881 So.2d 1079, 1084 (Fla.2004). See also WSG W. Palm Beach Dev., LLC v. Blank, 990 So.2d 708, 715 (Fla. 4th DCA 2008).

The court did not find an estoppel in Esplanade Patio Homes Homeowners’ Ass’n v. Rolle, 613 So.2d 531 (Fla. 3d DCA 1993), where only the developer’s agent, and not the homeowner’s association, gave permission to the homeowner to install a satellite dish contrary to the declaration of covenants. The association was not es-topped from enforcing the restriction, even where the developer occupied positions on the board of the association. The court ruled that two elements of estoppel were lacking: a statement by the party sought to be estopped and reasonable reliance on the representation.

In Emerald Estates Community Ass’n v. Gorodetzer, 819 So.2d 190 (Fla. 4th DCA 2002), we held that a salesperson’s statement to a unit owner that the erection of antenna would “not be a problem” fell short of the written approved required by the declaration. The fact that the association was controlled by the developer at the time provided the owner no shelter from the application procedure outlined in the declaration. The owner “needed to file a written application, and receive written approval, by the Association in whatever form it existed, i.e., the developer or its agents, in order to establish ‘previous approval’ acting as an estoppel on the Association.” Id. at 195.

In this case, as in Rolle, estoppel is inapplicable because the board of directors did not give Santa Maria permission to make the modifications, and Santa Maria could not reasonably rely on Span’s verbal representation to constitute the specific requirement of a written approval from the board. Santa Maria did not request or obtain written consent from the board pri- or to making the modifications as required by the declaration. Further, Span stated that when he spoke with Santa Maria about the modifications, he told her that he “didn’t see a problem with it” and it was his “opinion” that the modifications would be fine, similar to the sales agent in Gorodetzer. Santa Maria received merely a verbal opinion from one member of a three member board of directors. The fact that Span was also president of the Association and a member of the developer does not change that result. It is of no consequence that the modifications were made before the transfer of the Association took effect, because the declaration was already in effect at the time Santa Maria spoke with Span. Because the declaration explicitly required the prior written consent of the board of directors, Santa Maria could not have reasonably or justifiably relied on Span’s verbal statements.

Santa Maria cites Plaza Del Prado Condominium Ass’n v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977), which we deem distinguishable. In Richman, the association filed an injunction to compel the owners to remove their nonconforming terrace railings that had been installed a year earlier. At the time the owners purchased the unit, the sales representative and his supervisor gave them permission to make changes to the terrace railings. The owner/developer testified that the supervisor had the authority to approve the changes. Other unit owners had been given permission by the owner/developer or the association to make changes to their terrace railings. Based on these facts, the Third District concluded that the association was estopped from claiming any lack of compliance with the bylaws. The court noted that as a result of terraces being changed with permission, the exterior appearance of the building was not uniform. Also, the “plaintiff was under a duty to assert itself sooner than one year after the defendants’ alleged violation of the by-laws.” Id. at 852.

In contrast to Richman where the association waited one year to notify the owners that they were in violation of the bylaws, here the Association took action and sent Santa Maria a letter regarding the violation soon after the Association received control from the developer, only about four months after Santa Maria made the alterations.

The final summary judgment in favor of Santa Maria is reversed. Although no genuine issue of material fact exists as to Santa Maria’s noncompliance with the declaration of condominium, she has also raised a claim that the board’s refusal to consent to the modifications is arbitrary and capricious. A party may challenge the enforcement of an otherwise valid restrictive covenant by proving defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner. Gorodetzer, 819 So.2d at 193. On this issue, there are genuine disputed issues of material fact. We therefore remand for further proceedings.

Because we have reversed the final summary judgment, we also reverse the attorney’s fee award predicated on that judgment.

Reversed and remanded for farther proceedings.

HAZOURI, J., and SHAHOOD, GEORGE A., Senior Judge, concur.