source: Caselaw Access Project

author: BURKE, Judge. WINDOM, Presiding Judge,

license: Public Domain

text:
    Matthew Daniel GRANTHAM v. CITY OF TUSCALOOSA.
    CR-11-1093.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2012.

      Daniel F. Pruet, Tuscaloosa, for appellant.
    Kristen L. Love, city atty., Tuscaloosa, for appellee.
   BURKE, Judge.

Matthew Daniel Grantham appeals his guilty plea conviction of second-degree unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975, and his resulting sentence of 60 days in jail, which sentence was suspended. He was also ordered to pay a $250 fine, $25 to the Victims Compensation Assessment Fund, and court costs.

On February 27, 2010, Grantham was arrested and charged with second-degree possession of marijuana and possession of drug paraphernalia. This case was originally prosecuted in the Tuscaloosa Municipal Court. Grantham filed a motion in the Tuscaloosa Municipal Court to suppress evidence, which was subsequently denied. On May 20, 2010, Grantham stipulated to the facts of the charges and pleaded guilty to both charges. Grantham appealed his conviction for second-degree possession of marijuana to the Tuscaloosa Circuit Court.

On October 5, 2010, Grantham filed a motion to suppress the evidence resulting from the search and seizure of the evidence in this case, alleging that the law-enforcement officers did not have probable cause for a search; that they did not have specific and articulable facts that were sufficiently corroborated and necessary to perform a stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); that the officers performed an unlawful warrantless search of the vehicle; and that the officers conducted a custodial interrogation without first informing him of his Miranda rights.

On February 4, 2011, the circuit court held a suppression hearing. At the beginning of the hearing, Grantham entered into evidence a video recording of the incident that was taken from the police vehicle during the incident. At the hearing, Sgt. Billy Gene Hallman, Jr., of the Tuscaloosa Police Department testified that, on February 27, 2010, he was driving on 35th Street and his attention was drawn to the vehicle in which Grantham was riding. When the vehicle passed Sgt. Hallman’s vehicle, he noticed that the passenger, who was later identified as Grantham, was not wearing a seat belt. Sgt. Hallman then turned his vehicle around, caught up to the vehicle, initiated his emergency lights, and stopped the vehicle. As he made the traffic stop, he observed Grantham make what he considered to be a furtive movement by reaching over the middle console area with his right arm. However, Sgt. Hallman did not see anything that he could clearly determine to be a weapon or anything else in Grantham’s hand. Sgt. Hallman testified that Grantham’s actions made him suspect that he might be trying to hide something. Sgt. Hallman then approached the car, identified himself, and retrieved the driver’s and the passenger’s information. As he approached the driver’s side of the vehicle, Sgt. Hallman noticed that the driver was wearing a dark brown nylon-type jacket with a furry collar, that he described as “typically used in law enforcement,” and “reminded [him] of the old Tuscaloosa County Sheriffs Office uniforms that they had before they changed.” (R. 10.) The jacket did not have any badges or insignia, but Sgt. Hallman stated that it had a place capable of holding a badge on the left front chest. Sgt. Hall-man stated that the jacket raised a little suspicion because police officers deal with people who impersonate law enforcement and try to stop cars or approach people and fraudulently identify themselves as law enforcement. Sgt. Hallman questioned the driver concerning the jacket and then returned to his vehicle to run a computer check on the driver and the passenger.

At that time, another police unit responded to the location. The computer check revealed that the driver had a history — a second-degree-possession-of-marijuana charge. Sgt. Hallman approached the vehicle again, and asked the driver to get out of the vehicle, and the driver cooperated. Sgt. Hallman questioned the driver regarding the marijuana charge and testified that the driver was calm, cooperative, and answered every question he was asked. During this questioning, Grantham was still in the front passenger seat of the vehicle. The backup officer, Officer Hinton, was watching Grantham in the passenger seat. Sgt. Hallman asked the driver about the jacket, and the driver responded that the jacket belonged to his ex-girlfriend’s father. He further replied that he liked to wear the jacket and that it kept him warm. Sgt. Hallman then asked the driver for permission to search his vehicle, and the driver gave his consent.

After Sgt. Hallman had secured the driver’s consent to search the vehicle, Officer Hinton asked Grantham, who was still sitting in the front passenger seat, to get out of the vehicle. While Officer Hinton was talking to Grantham, Sgt. Hallman was finishing patting down the driver. When Officer Hinton initially asked Grant-ham to get out of the vehicle, Grantham refused. Sgt. Hallman then began to walk around the rear of the car toward the passenger side, and Grantham got out of the vehicle. After Grantham was outside the vehicle, Sgt. Hallman asked him to turn around and put his hands on the trunk so that .he could be patted down for the officer’s safety. Grantham was facing Sgt. Hallman and repeatedly asked Sgt. Hallman why he had to do that. Sgt. Hallman then physically turned Grantham around, placed his hands on the trunk of the car, and patted him down.

While patting Grantham down, Sgt. Hallman felt a rectangular shaped object in Grantham’s left front pocket. The object had grooves on its side and two inden-tions on its top. Sgt. Hallman stated that, based on his training and experience, he thought the object felt like a “dug out” that was commonly used to store marijuana and a smoking pipe. (R. 14.) Sgt. Hallman then removed the object from Grantham’s pocket and confirmed that it was a “dug out” containing marijuana and a pipe. Grantham then admitted that the dug out was his.

Grantham and the driver were then placed in handcuffs, and Sgt. Hallman searched the vehicle. Sgt. Hallman first searched the middle console area where he had earlier observed Grantham reach. He found additional marijuana and marijuana seeds in the console. Sgt. Hallman stated that both the driver and Grantham were then placed under arrest.

After Sgt. Hallman’s testimony, the State rested its case, and the defense did not present any witnesses. The circuit court took the case under advisement. On February 25, 2011, the circuit court issued an order denying Grantham’s motion to suppress. The circuit court’s order stated:

“[Grantham’s] motion to suppress was heard on the record on February 4, 2011. The brevity of this order does not reflect the time and attention devoted to the matter. The jacket and prior arrest record were not sufficient reasons to detain the driver or passenger. However, after reviewing the totality of the circumstances and other factors, I do not find the seizure of the evidence to be the result of a constitutionally impermissible process. Therefore, the motion to suppress is denied.”

(C. 30.)

On April 2, 2012, Grantham pleaded guilty to second-degree possession of marijuana. During his guilty-plea proceeding, Grantham gave the trial court oral notice of appeal, reserving the right to appeal the circuit court’s denial of his motion to suppress. The City of Tuscaloosa also moved to dismiss the charge against Grantham for possession of drug paraphernalia and that charge was dismissed. On April 13, 2012, Grantham filed this appeal.

On appeal, Grantham argues that the circuit court erred in denying his motion to suppress because, although he concedes that the initial traffic stop was lawful and based on sufficient probable cause, the officer was constitutionally unjustified in performing a patdown of him because the officer failed to point to any articulable, reasonable suspicion that he was involved in criminal activity or that he was armed. Specifically, Grantham argues that the arresting officer could not point to any specific, articulable suspicion of criminal activity “other than vague hunches in regard to the jacket the driver was wearing and a slight reaching movement by [Grantham],” and, thus, the arresting officer was not constitutionally justified in patting him down. The State contends that Sgt. Hall-man lawfully conducted a patdown of Grantham because, based on the totality of the circumstances, Sgt. Hallman could have formed a reasonable suspicion that Grantham was armed and dangerous.

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004).”

State v. Landrum, 18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling.

“All evidence obtained by a search that is conducted in violation of the Constitution of the United States is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966). The Fourth Amendment to the Constitution of the United States bans all unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a search is unreasonable depends upon the facts and circumstances of the particular case. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry [v. Ohio, 392 U.S. 1 (1968),] ‘stop and frisk’ situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).”

Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).

“ ‘Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a “reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur.” ’ ” State v. Davis, 7 So.3d 468, 470 (Ala.Crim.App.2008), quoting Wilsher v. State, 611 So.2d 1175, 1179 (Ala.Crim.App.1992)(internal citations omitted). When an officer stops a suspect pursuant to Terry, the officer “ ‘ “ ‘is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.’ [Terry,] 392 U.S. at 30, 88 S.Ct. 1868.”’” Smith v. State, 884 So.2d 3, 9 (Ala.Crim.App.2003), quoting Riddlesprigger v. State, 803 So.2d 579, 582 (Ala.Crim.App.2001).

“This Court has recognized that a traffic stop is ‘ “ ‘more analogous’ to the brief investigative detention authorized in Terry” ’ than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Crim.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), as well as any passenger, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Furthermore, so long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), cert. denied, 814 So.2d 988 (Ala.2001), recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 53-54 (Ala.Crim.App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).
“When a police officer properly seizes a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112, 98 S.Ct. 330. Recently, the United States Supreme Court expanded the Terry traffic stop jurisprudence in Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), holding that, as with a driver suspected of carrying a weapon, a police officer may also order a passenger out of a vehicle and conduct a patdown of a passenger if the officer reasonably believes that the passenger is armed and dangerous. The Supreme Court explained:
“‘[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.’
555 U.S. at 327,129 S.Ct at 784.”

B.A.H. v. State, 28 So.3d 29, 32 (Ala.Crim.App.2009) (internal emphasis omitted).

In State v. Hails, 814 So.2d 980, 986 (Ala.Crim.App.2000), this Court stated the following:

“ ‘Police may conduct a pat-down search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.’
“United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998). ‘And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.’ Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).”

State v. Hails, 814 So.2d at 986.

“ ‘Reasonable suspicion is a less demanding standard than probable cause,’ Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers ‘have a particularized and objective basis for suspecting the person detained of criminal activity,’ Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).” Wilsher v. State, 611 So.2d 1175, 1179 (Ala.Crim.App.1992). “To justify the investigatory stop and patdown search, the officer’s actions must not be in response ‘to his inchoate and unparticularized suspicion or “hunch,” but [must be in response] to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.’” Ex parte James, 797 So.2d 413, 415 (Ala.2000) (quoting Terry, 392 U.S. at 26) (emphasis omitted). Thus, “[i]f a reasonably prudent person [in the officer’s shoes with the officer’s experience and training] would believe that his safety, or the safety of others, is endangered, [the officer] may conduct a limited search of outer clothing to discover any weapons.” State v. Taylor, 46 So.3d 504, 508 (Ala.Crim.App.2010) (citations and quotations omitted). “ ‘This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” ’ [United States v.] Arvizu, 534 U.S. [266] at 273, 122 S.Ct. 744 (quoting [United States v.] Cortez, 449 U.S. [411] at 418, 101 S.Ct. 690).” Muse v. State, 42 So.3d 789, 792 (Ala.Crim.App.2009).

Here, Sgt. Hallman did not articulate facts that would support a reasonable suspicion that Grantham was involved in criminal activity or that he was armed. Other than stating that he saw Grantham reach over the middle console of the vehicle, Sgt. Hallman failed to provide any details that would lead a reasonable person to suspect that Grantham was involved in criminal activity. “Furtive gestures may be taken into account in determining whether probable cause exists.” Walters v. State, 585 So.2d 206, 209 (Ala.Crim.App. 1991). As the Alabama Supreme Court noted in Ex parte Tucker, 667 So.2d 1339 (Ala.1995), a furtive movement, when not a flight, “is typically some stealthy act to conceal an object from initial view by the police or by strangers or to quickly dispose of the object.” 667 So.2d at 1347-48. The Alabama Supreme Court stated the following regarding such furtive movements:

“ ‘[Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.’
“Sibron [v. New York], 392 U.S. [40,] 66-67, 88 S.Ct. [1889,] 1904 (citations omitted). Professor LaFave has commented upon this language as follows:
“‘Thus, if the police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal that object from police view, probable cause is then present.’
“W. LaFave, 2 Search and Seizure § 3.6(d) at 58 (2d ed.1987).”

667 So.2d at 1347.

However, in this case, there was no pri- or reason to suspect criminal behavior other than a seat-belt violation. The stop was made in the middle of the day, and there was no indication that the stop was made in an area that was often patrolled because of high crime rates. There was no indication in the record of any activity by the vehicle or its passengers that would have suggested involvement in criminal activity. Sgt. Hallman stated that he did not see any object in Grantham’s hand but that Grantham’s movement made him “suspicious that they might be trying to hide something or — not quite sure what was going on. But he did make a furtive movement during the initial traffic stop.” (R. 9). Sgt. Hallman did not indicate that he saw Grantham open the console, and he stated that he did not see anything in Grantham’s hand. When he approached the car, Sgt. Hallman did not observe any weapons, shell casings, firearm cases, knives, or knife sheaths in the car. He did not smell or see marijuana or other illegal substance. Additionally, Sgt. Hallman did not indicate that Grantham was nervous or belligerent. Although Grantham initially indicated that he would not willingly get out of the vehicle, he did not become aggressive and he subsequently voluntarily got out of the vehicle shortly after he was ordered to do so. Likewise, when Grant-ham first questioned why Sgt. Hallman was requesting consent to a patdown, there was no testimony that Grantham became aggressive or belligerent; rather, it appears from Sgt. Hallman’s testimony that Grantham was merely asserting his right to privacy by withholding his consent.

The State further argues that the driver’s jacket, which Sgt. Hallman stated resembled a law-enforcement officer’s jacket, contributed to Sgt. Hallman’s suspicion that the driver and Grantham were engaged in criminal activity or were armed. However, Sgt. Hallman testified that the jacket did not contain any badges or insignia; that he did not witness the driver or the passenger taking any action that would warrant a suspicion that they were trying to impersonate a police officer; and that, when Sgt. Hallman questioned the driver about his jacket, the driver calmly responded to his questions. The driver’s vehicle did not have any markings or lights on it that indicated that the suspects were involved in the criminal activity of pretending to be law enforcement. Without more, we cannot say that the officer’s suspicions about the jacket the driver was wearing were more than an “inchoate and unpartic-ularized suspicion or ‘hunch,’” and, thus, those facts cannot provide the officer with a reasonable suspicion that would justify a patdown under Terry. See Ex parte James, 797 So.2d at 415. Thus, looking at the totality of the circumstances, we cannot say that Sgt. Hallman had a particularized and objective basis for suspecting Grantham of being involved in criminal activity or of being armed, which is required to justify a patdown under Terry. See State v. Hails, 814 So.2d at 986. Accordingly, we find that the circuit court erred in denying Grantham’s motion to suppress.

Although the dissent argues that, because the driver consented to a search of the car, the inevitable-discovery rule would have been a viable option for the State to argue that the patdown and seizure was proper, the State did not ever raise this issue — at trial or on appeal. See State v. Spears, 560 So.2d 1145, 1152 (Ala.Crim.App.1989) (“In showing that the inevitable discovery exception should apply, the State must carry the burden of proving by a preponderance of the evidence that the initial search or information gained therefrom was not used in any way to gain the defendant’s consent, see United States v. Freiwald, 661 F.Supp. 559, 562 (C.D.Cal.1987), and that the evidence and information discovered during the illegal search would ultimately or inevitably have been discovered by the lawful means of the consent search. In addition, the State must prove the voluntariness of the consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).”). For this Court to reach this issue and find facts in the record to support this theory would require this Court to engage in a speculative fact-finding expedition. It is impossible to glean from the record whether Grantham, as the passenger, would have been held for a possible constructive possession charge or could have been released. This Court is not intended to be a fact-finding body; that duty is left to the trial court or the jury, depending on the circumstances of the case. See e.g. Floyd v. State, [Ms. 1080107, September 28, 2012] — So.3d -, -(Ala.2012), (Murdock, J., concurring in the result). Therefore, to contrive or conceive this theory would require this Court to abdicate its duty as a neutral arbiter of the law and could instead relegate its role to manipulating the facts.

Based on the reasons stated above, the judgment of the circuit court is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, KELLUM, and JOINER, JJ., concur.

WINDOM, P.J., dissents, with opinion.

WINDOM, Presiding Judge,

dissenting.

I disagree with the majority’s determination that Sgt. Billy Gene Hallman, Jr., did not possess reasonable suspicion sufficient to justify a patdown of Matthew Daniel Grantham. However, even if I were to agree with the majority’s determination, I would still affirm the circuit court’s denial of Grantham’s motion to suppress because of the inevitable-discovery exception to the exclusionary rule.

“ ‘Under [the inevitable-discovery] exception, a court may admit illegally obtained evidence if the evidence inevitably would have been discovered through independent, lawful means.
For example, in Nix v. Williams, [467 U.S. 431 (1984),] the Supreme Court held that evidence concerning the location and condition of a murder victim’s body was admissible even though the pólice obtained this information in violation of the defendant’s Sixth Amendment right to counsel. The Court reasoned that a comprehensive search already under way at the time of the police illegality would have inevitably resulted in the discovery of the body.’
“Miles Clark, Project, Thirty-first Annual Review of Criminal Procedure, The Exclusionary Rule, 90 Geo. L.J. 1264, 1274-76 (2002) (footnotes omitted). See, e.g., Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (noting that inevitable discovery is actually an extrapolation from the independent-source doctrine: because the tainted evidence would be admissible if in fact it was discovered through an independent source, it should be admissible if it inevitably would have been discovered).
“... Under the inevitable-discovery exception, the prosecutor has the burden of demonstrating (1) that there is a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police, before the misconduct, were actively pursuing the alternative line of investigation. United States v. Cherry, 759 F.2d 1196 (5th Cir.1985); United States v. Brookins, 614 F.2d 1037, 1043 (5th Cir.1980).”

Kabat v. State, 867 So.2d 1153, 1156-57 (Ala.Crim.App.2003) (footnote omitted).

As the majority noted, the driver of the vehicle in which Grantham was a passenger gave Sgt. Hallman consent to search his vehicle. Ill So.3d at 177. At the time the consent was given, Grantham had not yet been subjected to the patdown, but rather was sitting in the front passenger seat of the vehicle. After Sgt. Hallman was granted consent to conduct a search, Officer Hinton asked Grantham to get out of the vehicle. Grantham initially refused, but acquiesced to Officer Hinton’s command after Sgt. Hallman began walking toward Grantham.

A patdown search of Grantham was conducted by Sgt. Hallman, during which the “dug out” was discovered. Grantham was placed in handcuffs, and Sgt. Hallman proceeded with the search of the vehicle to which the driver had earlier consented. Sgt. Hallman searched the middle console area, which is the area toward which Grantham made what Sgt. Hallman considered to be a furtive movement. There, Sgt. Hallman discovered marijuana and marijuana seeds.

Regardless of the search of Grantham, the discovery of marijuana and seeds in the vehicle, especially in an area to which Grantham made what Sgt. Hallman considered to be a furtive movement, would have provided Sgt. Hallman with sufficient probable cause to arrest Grantham for possession of marijuana. Once Sgt. Hall-man had probable cause to arrest Grant-ham, a search of Grantham’s pockets, which would have yielded the dug out, would have been proper pursuant to a search incident to a lawful arrest. See Callahan v. State, 644 So.2d 1329, 1332 (Ala.Crim.App.1994) (holding that deputy was justified in searching appellant’s pockets once probable cause to arrest had been established).

Based on the record before this Court, the three-pronged test found in Kabat was satisfied. Before the patdown search of Grantham, Sgt. Hallman had observed Grantham make a furtive movement in the direction of the middle console of the vehicle and had obtained consent from the driver to search the vehicle. Additionally, Sgt. Hallman did not acquire any new information relevant to the discovery of the marijuana in the middle console during the patdown search. Thus, even if the patdown search were illegal, there was a reasonable probability that the marijuana in the middle console would have been discovered by lawful means but for the police misconduct and that the leads making inevitable the discovery of marijuana in the console were possessed by Sgt. Hall-man at the time of the misconduct; Sgt. Hallman, before the misconduct, was actively pursuing the alternative line of investigation.

Because I believe that the “dug out” discovered in Grantham’s pocket is subject to the inevitable-discovery exception to the exclusionary rule, I believe that the circuit court’s denial of Grantham’s motion to suppress should be affirmed. Indeed, the City did not argue during the suppression hearing, nor does it argue on appeal, that the evidence should not be suppressed under the inevitable-discovery exception. However, this Court may affirm the judgment of the circuit court on any valid legal ground, regardless of whether that ground was considered by the circuit court. Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003) (citing Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing in turn Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988)); see also Humphreys v. State, 287 Ga. 63, 76-77, 694 S.E.2d 316, 330-31 (2010). Therefore, I respectfully dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM.

text:
    Jayne Y. HERNDON, Appellant, v. WINNIE PALMER HOSPITAL, ORLANDO, etc., et al., Appellee.
    No. 5D12-1004.
    District Court of Appeal of Florida, Fifth District.
    Jan. 15, 2013.
    Jayne Y. Herndon, Ocala, pro se.
    Bradley P. Blystone and Andrea Loza-noDiederich of Marshall, Dennehey, Warner, Coleman & Goggin Orlando, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Kukral v. Mekras, 679 So.2d 278 (Fla.1996); Fla. Hospital Waterman v. Stoll, 855 So.2d 271 (Fla. 5th DCA 2008); Cohen v. West Boca Med. Center, Inc., 854 So.2d 276 (Fla. 4th DCA 2003); and Royle v. Florida Hospitalr-East Orlando, 679 So.2d 1209 (Fla. 5th DCA 1996).

SAWAYA, LAWSON and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Stephen WILTSIE, Appellee.
    No. 4D12-1358.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and George Francis, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Wright v. State, 47 So.3d 972 (Fla. 4th DCA 2010).

STEVENSON, GERBER and CONNER, JJ., concur.


text:
    Craig TRAPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1190.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Rehearing Denied Mar. 8, 2013.

      Craig Trapp, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence, claiming additional jail credit. The record before the trial court does not show entitlement to relief. See Gethers v. State, 798 So.2d 829, 832-33 (Fla. 4th DCA 2001), decision approved, 838 So.2d 504, 508 (Fla.2003). Our affirmance is without prejudice to the defendant filing a motion for post-conviction relief pursuant to rule 3.850, or a facially sufficient rule 3.800 motion in which he can show that his detention in the Miami-Dade County Jail was due solely to the charges in this case.

Affirmed.

WARNER, POLEN and LEVINE, JJ„ concur.


text:
    Raphael Gilbert SURINACH, Appellant, v. STATE of florida, Appellee.
    No. 4D11-4675.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2013.
    Raphael Gilbert Surinach, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Raphael Gilbert Surinach appeals an order summarily denying his rule 3.850 motion. We affirm the summary denial of his third ground for relief without further discussion, finding the claim lacked merit, but we reverse the summary denial of the other two claims.

In summarily denying the appellant’s motion for postconviction relief, the post-conviction court relied on documents (one being an unauthenticated transcript purporting to represent the appellant’s taped confession to law enforcement), which the state admits were not part of the trial court’s files or records below until they were attached to the state’s response to the motion. This was error. Fla. R.Crim. P. 3.850(d); Smalls v. State, 18 So.3d 606, 608 (Fla. 1st DCA 2009); Johnson v. State, 736 So.2d 713, 714 (Fla. 2d DCA 1999). See also Cortinas v. State, 91 So.3d 903, 904 (Fla. 4th DCA 2012).

Affirmed in part; reversed in part and remanded for further proceedings.

WARNER, GROSS and TAYLOR, JJ., concur.


text:
    Modesto Silva GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2954.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Modesto Silva Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion filed under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    CITY OF MIAMI, Appellant, v. Carlos GUZMAN and Samyra Berrios, individually, and as Parents and Guardians of Camille Guzman, Appellees.
    No. 3D12-811.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Rehearing Denied March 12, 2013.

      Julie O. Bru, City Attorney, and Kevin R. Jones, Assistant City Attorney and John A. Greco, Assistant City Attorney, City of Miami, for appellant.
    Wadsworth Huott, and Mike Snowden, Fort Lauderdale, for appellees.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   PER CURIAM.

The appellees sued the City of Miami on behalf of their child and in their individual capacity and received a $479,962.00 jury award. Pursuant to section 768.28(5), Florida Statutes (2010), the maximum damages that the City of Miami is required to pay per claim by any one person is $100,000.00. The City of Miami appeals the trial court’s order compelling two $100,000.00 payments to appellees in both their individual capacity and representative capacity. The City of Miami also appeals the trial court’s order denying its motion to correct the final judgment pursuant to Rule 1.540(a) of the Florida Rules of Civil Procedure.

Although the appellees included both their representative and individual claims in their complaint, the appellees’ claim in their individual capacity was not argued at trial and was thus not before the jury. The appellees’ individual claim was also not noted anywhere on the verdict form. Therefore, it was a mistake to include “Plaintiffs” instead of “Plaintiff’ on the final judgment. The final judgment should be corrected to reflect the singular award in favor of the appellees in their representative capacity on behalf of their child.

We reverse with instructions that the trial court correct the final judgment in accordance with the foregoing, and we vacate the order compelling payment of damages for the appellees’ individual claim.


text:
    Damiana ALEJANDREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-698.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Ricardo R. Corona, Coral Gables, and Sahar Razzaghi-Awal, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, — So.3d -(Fla.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    John MONTOYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2592.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and LOGUE, JJ.
   PER CURIAM.

Affirmed. See § 777.201(1), (2), Fla. Stat. (2009); Munoz v. State, 629 So.2d 90, 99 (Fla.1993); State v. Robinson, 635 So.2d 130 (Fla. 3d DCA 1994).


text:
    Jharod KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5152.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Jharod Kelly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered February 17, 2011, denying petitioner’s motion to vacate and set aside sentence and reinstate probation, is granted. See Vlacos v. State, 730 So.2d 864 (Fla. 1st DCA 1999). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

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


author: CORTINAS, J.

text:
    Thomas WING-MILIKEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1696.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2013.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   CORTINAS, J.

We reverse the trial court’s modification of the defendant’s sentence following a violation of furlough proceeding, during which the defendant was not afforded an opportunity to explain his failure to appear. On remand, the trial court must allow the defendant an opportunity to explain why he failed to appear. See Fulton v. State, 66 So.3d 950, 951 (Fla. 3d DCA 2011).

Reversed and remanded.


text:
    Richard McALLISTER, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D12-1547.
    District Court of Appeal of Florida, First District.
    Feb. 1, 2013.
    Appellant Richard McAllister, pro se.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Roy M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6179.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.
    Roy M. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The lower court denied appellant’s timely motion* for post-conviction relief raising eight grounds, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm Issue I without comment, denying grounds 2, 5, 7, and 8. We reverse and remand Issues II and III for further proceedings. The state has conceded error.

As to Issue II, the lower court erred as a matter of law by concluding that the portions of the record attached to the final order conclusively established that defendant was not entitled to relief on ground 4 below. See Pennington v. State, 84 So.3d 151 (Fla. 1st DCA 2010); Williams v. State, 924 So.2d 897 (Fla. 1st DCA 2006); Tidwell v. State, 844 So.2d 701 (Fla. 1st DCA 2008).

As to Issue III, the lower court abused its discretion by failing to address defendant’s amended 3.850 motion, which defendant had filed within the two-year time limit. See Spera v. State, 971 So.2d 754, 759 (Fla.2007); Sinclair v. State, 959 So.2d 1277 (Fla. 1st DCA 2007).

Appellant did not appeal the lower court’s denial of grounds 1, 3, and 6.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

PADOVANO, MARSTILLER, and SWANSON, JJ„ concur.


text:
    A.H., The Natural Mother of: M.F., A Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D12-4097.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.
    Crystal McBee Frusciante, Jupiter, for Appellant.
    Kelley Schaeffer, Tavares, for Appellee.
   PER CURIAM.

A.H. appeals the final order terminating her parental rights to her third and youngest child, M.F. The Department of Children and Families and the Guardian ad Litem Program concede that two of the statutory grounds for termination found by the trial court — subsections 39.806(1)(c) and (1)(d)3., Florida Statutes (2011) — lack evidentiary support. As to the three remaining grounds — subsections 39.806(l)(e)1„ (1)(i), and (1)ffi, Florida Statutes (2011) — and the trial court’s determination that terminating A.H.’s parental rights is the least restrictive means of protecting M.F. from harm, we find sufficient evidentiary support in the record of the termination proceedings.

Accordingly, we affirm the termination order, in part, reverse the order, in part, and remand to the trial court to enter an amended order excluding subsections 39.806(l)(c) and (l)(d)3. as grounds.

WOLF, THOMAS, and MARSTILLER, JJ., concur.


text:
    VERIZON BUSINESS PURCHASING, LLC, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, a State Agency, Appellee.
    No. 1D12-5313.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.

      Michael J. Bowen and Peter 0. Larsen, Akerman Senterfitt, Jacksonville; Katherine E. Giddings and Kristen M. Fiore, Akerman Senterfitt, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and J. Clifton Cox and Timothy E. Dennis, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of December 5, 2012, the Court has determined that the claim disposed of by the lower tribunal in the order on appeal is inextricably intertwined with those claims left pending. Therefore, the order on appeal does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is hereby dismissed as premature. In light of the dismissal, all pending motions are denied as moot.

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Jeremy SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3014.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Jeremy Swain, Blounstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), rev. denied, 104 So.3d 1085 (Fla.2012).

DAMOORGIAN, GERBER and CONNER, JJ., concur.


text:
    George ALLISON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2989.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    George Allison, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Gomez v. State, 984 So.2d 577 (Fla. 4th DCA 2008) (citing Kronz v. State, 462 So.2d 450, 451 (Fla.1985)).

WARNER, CIKLIN and LEVINE, JJ., concur.


text:
    Javier GARCIA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2841.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Javier Garcia, Jr., Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

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


text:
    Humer MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2660.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Humer Morales, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Mauricio MANTILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2519.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.

      Carey Haughwout, Public Defender, and Heidi F. Friedman, Fort Lauderdale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and No appearance required, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, - So.3d - (Fla.2012).

POLEN, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Marvin O. TROWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2462.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Martin L. Roth of Martin L. Roth, P.A., Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, — So.3d -(Fla.2012).

WARNER, GROSS and CONNER, JJ., concur.


text:
    Jimmie Lee SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2359.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Jimmie Lee Sutton, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085 (Fla.2012).

STEVENSON, GROSS and GERBER, JJ., concur.


text:
    Alvin L. KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2356.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Alvin L. Knowles, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

POLEN, STEVENSON and LEVINE, JJ., concur.


text:
    Phillip BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2302.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Phillip Brown, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

STEVENSON, CIKLIN and GERBER, JJ., concur. '


text:
    Norman ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2292.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Norman Robinson, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

MAY, C.J., DAMOORGIAN and GERBER, JJ., concur.


text:
    Luis A. ROSARIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3020.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Luis A. Rosario, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

WARNER, TAYLOR and CIKLIN, JJ., concur.


text:
    Isaac J. PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2281.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Isaac J. Peterson, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

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

POLEN, GROSS and CIKLIN, JJ., concur.


text:
    Charles ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4873.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Rehearing Denied May 3, 2013.

      Charles Roberts, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Elliott v. State, 9 So.3d 660 (Fla. 5th DCA), rev. denied, 18 So.3d 1037 (Fla.2009).

WARNER, GROSS and LEVINE, JJ., concur.


text:
    Anthony PICKLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2291.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Anthony Pickle, Lauderdale Lakes, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

POLEN, GERBER and CONNER, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Scott KETCHUM, Appellee.
    No. 3D11-1281.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The State of Florida appeals the trial court’s withhold of adjudication of the conviction against Scott Ketchum for one count of grand theft in the first degree; in violation of section 812.014(2)(a), Florida Statutes (2007). Section 775.08435, Florida Statutes (2007), prohibits a withhold of adjudication for first-degree felonies. Accordingly, we reverse the order withholding adjudication. Because the sentence was part of a plea offer by the trial court, Ketchum shall be offered the opportunity to withdraw his plea on remand.

Reversed and remanded.


author: LAGOA, J.

text:
    J.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2596.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS and LAGOA, JJ.
   LAGOA, J.

J.P., a juvenile, appeals an order adjudicating him delinquent for trespass in a conveyance, as a lesser included offense of the charge of grand theft, and for trespass on school grounds. We affirm the adjudication of delinquency for trespass on school grounds without comment.

As to the adjudication for trespass in a conveyance, the State correctly concedes that the petition fails to allege an essential element of the offense, i.e., that the juvenile willfully entered or remained in the golf cart. “Well-established law precludes a finding of guilt on a lesser included offense where the charging document fails to explicitly allege all the elements of the lesser offense.” K.D. v. State, 69 So.3d 1020, 1021 (Fla. 3d DCA 2011) (reversing adjudication for trespass in a conveyance, as a lesser included offense of grand theft, because the petition did not allege that the juvenile “willfully entered or remained in the motor scooter”). Based upon the State’s confession of error and our independent review of the record, we reverse the adjudication of delinquency for trespass in a conveyance.

Affirmed in part, reversed in part, and cause remanded.


text:
    Shannon CLARK, Petitioner, v. WARDEN, Franklin Correctional Institution, et al., Respondents.
    No. 1D12-4422.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2013.
    Shannon Clark, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROBERTS, WETHERELL, and SWANSON, JJ., concur.


text:
    MAZAL TOV 11, LLC, a Delaware limited liability company, Appellant, v. BEACH ONE RESORT, LLLP, a Florida limited liability limited partnership, and City of Hallandale Beach, a political subdivision of the State of Florida, Appellees.
    No. 4D12-3090.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Kelly A. McGovern and Richard A. Morgan of Buchanan Ingersoll & Rooney, P.C., Miami, for appellant.
    Russell Koonin, David Gersten and Michael N. Kreitzer of Bilzin Sumberg Baena Price & Axelrod LLP, Miami, for appellee Beach One Resort, LLLP.
   PER CURIAM.

Affirmed. See Ronbeck Constr. Co. v. Savanna Club Corp., 592 So.2d 344 (Fla. 4th DCA 1992), and Ibis Lakes Homeowners Ass’n v. Ibis Isle Homeowners Ass’n, 102 So.3d 722 (Fla. 4th DCA 2012).

STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.


author: STEVENSON, J.

text:
    Robert BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2463.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Antony P. Ryan, Regional Counsel, and Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STEVENSON, J.

Robert Bell was tried by jury and convicted of delivery of cocaine and conspiracy to deliver cocaine. In this appeal, the defendant challenges these convictions, insisting that he was entitled to a judgment of acquittal on both charges and that the reading of a principals jury instruction in connection with the conspiracy charge requires reversal of such conviction. We reject without further comment the defendant’s claim that there was insufficient evidence to support his conviction for delivery of cocaine. We agree, though, that the defendant was entitled to a judgment of acquittal with regard to the charge of conspiracy to deliver cocaine and write to address that issue.

By June of 2009, police were investigating two brothers for drug trafficking. In September of 2009, a confidential informant contacted police, indicating he had information concerning the brothers. Police used the confidential informant and a second confidential informant to set up drug buys from the brothers. The first informant was a middle man of sorts, making the introductions, while the second informant posed as a stripper who wanted to buy drugs to sell at the club. The first informant’s conversations with the brothers were recorded, and he was wearing a wire during the buys.

Police recorded a September 23, 2009 conversation between the first informant and one of the brothers, wherein the pair made plans to meet in an hour. The two informants drove to that brother’s residence intending to purchase an eight-ball of cocaine. When they arrived, another man was there as well. The informants identified this man as the defendant, with the second informant testifying he was introduced as “Bobby D.” The one brother and the defendant got into the back of the second informant’s car and the foursome drove to an apartment complex down the road. While both informants claimed to be fuzzy on the details, both testified the first informant handed the money to the defendant. The second informant testified that they were supposed to purchase the eight-ball for $125 and that, after the one brother walked away, she, the first informant and the defendant drove to a convenience store for change. When the store could not make change, the defendant told her they would give her credit for $5. Police monitoring the buy and the conversation confirmed that the informants and the defendant drove to the convenience store and that the defendant agreed to give the second informant a $5 credit. In a phone conversation recorded the following day, the first informant negotiates the purchase of an ounce of cocaine from the one brother and informs him that “tomorrow afternoon I ain’t dealing with that other dude” and “I don’t trust him with my money.”

Thereafter, the first informant set up several more buys with the one brother. On October 13, 2009, the first informant left that brother a voice message accusing that brother of dodging his calls and telling him “Bobby” told him to call. The final buy was made on October 22, 2009. The first informant testified that the defendant was not involved in any of the post-September 23rd buys. When police arrested the brother after the October 22, 2009 buy, the defendant was found in the parking lot of the residence where the buy took place.

To convict the defendant of conspiracy to deliver cocaine, the State was required to prove (1) that it was the defendant’s intent that the crime of delivery of cocaine would be committed and (2) that, to carry out this intent, the defendant agreed, conspired, or confederated with the one brother to cause the delivery of cocaine to be committed by both of them, one of them, or by a third person. See § 777.04(3), Fla. Stat. (2009); Fla. Std. Jury Instr. (Crim.) 5.3. “Both an agreement and an intention to commit an offense are necessary elements of this crime.” Ramirez v. State, 371 So.2d 1063, 1065 (Fla. 3d DCA 1979) (emphasis added). “ ‘[W]hen the evidence establishes ‘that the defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime,’ it is inadequate, without more, to sustain a conspiracy conviction.’ ” Dieujuste v. State, 86 So.3d 1209, 1212 (Fla. 4th DCA 2012) (quoting Jackson v. State, 74 So.3d 563, 566 (Fla. 4th DCA 2011) (citation omitted)).

Here, there was unquestionably evidence that the defendant assisted and/or participated in the September 23rd drug sale. There was, however, no evidence that the defendant had any knowledge of the drug deal before the informants’ arrival that day. The first informant negotiated the deal with the one brother and there was no evidence that either the informants or the brothers had any contact with the defendant before the defendant’s presence at, and participation in, the September 23rd buy. There was some evidence suggesting the defendant was involved with the brothers’ drug deals after September 23rd, i.e., the first informant’s October 13th voicemail for the one brother indicating “Bobby” told him to call and the defendant was found in the parking lot after the final buy. Such evidence, however, does nothing to establish that, before the September 23rd buy, there was an agreement between the defendant and the brothers to sell or deliver cocaine. The defendant was thus entitled to a judgment of acquittal on the conspiracy charge. Compare Rouse v. State, 583 So.2d 1111 (Fla. 4th DCA 1991) (affirming conspiracy conviction where defendant was unexpectedly present at prearranged drug buy, but defendant assured undercover officer supplier was legitimate, defendant called supplier when he was late, and, when drugs finally changed hands two days later, defendant was on premises and had supplier’s pager number in his pocket), with Mickenberg v. State, 640 So.2d 1210 (Fla. 2d DCA 1994) (reversing conspiracy conviction where there was evidence that defendant was present at a number of drug buys set up with a man and that defendant was seen putting money in the man’s safe, but no evidence that defendant was involved in setting up the deals). Our holding renders moot the defendant’s jury instruction issue.

Affirmed in Part and Reversed in Part.

GERBER and CONNER, JJ., concur.


author: HARRIS, C.M., Senior Judge.

text:
    Michael Robert EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1180.
    District Court of Appeal of Florida, Fifth District.
    Feb. 22, 2013.
    Rehearing Denied May 1, 2013.
    Michael R. Everett, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   HARRIS, C.M., Senior Judge.

Defendant was convicted of first-degree felony murder and burglary of a dwelling with a battery while armed with a dangerous weapon. In an earlier appeal, the burglary was reduced to the second-degree felony of burglary of a dwelling as charged in the information.

Evidence at trial revealed that at 9:40 p.m. on the evening of the offense, the victim, who was crying, called her friend, Ms. Moore, and told her that defendant had been to her house with a knife and threatened to kill her. Defendant had been drinking at Poor Walt’s lounge, but a security tape showed that he was absent from the lounge at the time of the murder. His keys were found at the scene of the crime. He was convicted and his conviction and sentence were upheld on direct appeal. Everett v. State, 7 So.3d 544 (Fla. 5th DCA 2009).

Defendant is before us now based on an amended motion for post-conviction relief in which he claims his trial attorney was ineffective for not raising the fact that a juror was asleep during crucial testimony and in failing to call two witnesses whose testimony, he urges, would impeach Ms. Moore’s testimony relating to the “excited utterance” phone call. The trial judge denied defendant’s motion.

Although defendant’s parents testified that they saw a juror sleeping, the assistant state attorney and the defense counsel, both of whom testified that they watched out for sleeping jurors, saw none on this jury. The trial court’s finding that the defendant failed to prove a sleeping juror had ample support in the record.

Concerning the failure to call the two witnesses, the court found that the record reflects that the testimony of the witnesses now urged by defendant involved a separate meeting between the victim and defendant which occurred earlier in the day. There is support for this finding.

AFFIRMED.

LAWSON and BERGER, JJ., concur.

      . There is no issue involving this second count now before us.


text:
    Timothy BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2867.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Timothy Bradley, Sneads, pro se.
    No appearance required to appellee.
   PER CURIAM.

Defendant was sentenced on four drug related counts in Palm Beach County. He filed a motion to define and/or clarify sentence indicating that counsel told him that his Palm Beach County sentence would run concurrently with a sentence imposed in an unrelated Saint Lucie County case. He stated that the Department of Corrections (“DOC”) “need[ed] to be advised of the structure in this judgment.” The trial court summarily denied the motion without explanation. The record on appeal only contains the motion and the trial court’s order. Neither includes any attachments. The limited record before this Court does not reflect how the sentences were ordered to run, or what was discussed at sentencing.

Defendant’s cursory claim can be read in two ways. First, it may be read as an assertion that counsel was ineffective for misadvising him about the sentence that he would receive. Alternatively, Defendant may just be alleging that the DOC records do not reflect that his sentence should be running concurrently with the Saint Lucie County sentence, as ordered by the court. In any event, we find that Defendant has failed to set forth an issue that requires definition or clarification.

To the extent that the motion could have been considered under Florida Rule of Criminal Procedure 3.800(a), Defendant’s claim was insufficient since he did not actually allege that the sentence was illegal, nor did he allege where in the record the information could be found and how it would explain entitlement to relief. See Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998). Furthermore, the claim could not be considered under Florida Rule of Criminal Procedure 3.850 because it was not sworn, and he did not allege that trial counsel was ineffective for advising him that the sentence would run concurrent to the Saint Lucie County sentence. See Brooks v. State, 91 So.3d 212 (Fla. 4th DCA 2012); Reed v. State, 703 So.2d 532 (Fla. 4th DCA 1997). Even if it had been sworn, the claim could not be considered under rule 3.850 because Defendant was not seeking to vacate his sentence or withdraw his plea; rather, he seemed to be more concerned with the DOC’s interpretation of the sentence.

Thus, we affirm the trial court’s denial of Defendant’s motion to define and/or clarify, but we do so without prejudice to his filing a facially sufficient motion under rule 3.800(a), or rule 3.850, to the extent that his claim may allege an illegal sentence or ineffective assistance of counsel, respectively. With regard to Defendant’s concern about the DOC’s interpretation of his sentences, he is advised that he must first exhaust his administrative remedies with the DOC before pursuing relief in the circuit court. See Cunningham v. State, 932 So.2d 1202 (Fla. 4th DCA 2006).

Affirmed without prejudice to seek the relief described above.

GROSS, TAYLOR and CIKLIN, JJ„ concur.


text:
    Naqwan WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2847.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Carey Haughwout, Public Defender, and Amy L. Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion, seeking to withdraw his plea. The state responded in the circuit court that the defendant’s prior rule 3.850 motion, which raised other grounds, should bar the instant motion as successive. We disagree with the state because the prior motion, filed through counsel, was unsworn, and thus, as a rule 3.850 motion, it should have been dismissed. Furthermore, because the prior motion was filed within thirty days after the defendant’s sentencing, it could have been considered as a rule 3.170(i) motion to withdraw his plea, which would not bar a subsequent rule 3.850 motion. Under the circumstances, we conclude the defendant’s filing of the instant motion did not constitute an abuse of procedure.

Nevertheless, we affirm the denial of the instant motion to the extent it sought to allow the defendant to withdraw his plea. We recognize the record does not refute the defendant’s claim that he was not informed by his counsel or the court that one of his charges — count I, home invasion robbery with actual possession of a firearm — carried a ten-year mandatory minimum term. However, the defendant has not demonstrated he was prejudiced, given his expressed understanding at the time he entered his plea that the court could sentence him to up to life in prison on that count. See Capalbo v. State, 73 So.3d 838, 841 (Fla. 4th DCA 2011) (“Where, under the totality of the circumstances, no objectively reasonable probability of prejudice exists, the claim may be summarily denied.”). As for the defendant’s claim that he was coerced to plead, the record refutes that claim.

Further, the state candidly pointed out in the circuit court that the defendant should be resentenced for count II, grand theft, a third degree felony for which he had been sentenced to twenty years — an illegal sentence. The defendant’s brief now seeks a correction of that sentence. Accordingly, we direct the circuit court on remand to impose a legal sentence for count II.

Affirmed, but remanded for con~ection of sentence.

POLEN, TAYLOR and GERBER, JJ., concur.


text:
    Glenda MARTINEZ, Petitioner, v. John CRAMER and J. Alan Smith, Respondents.
    No. 4D13-368.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for petitioner.
    Ellen S. Morris of Elder Law Associates PA, Boca Raton, for respondent John Cramer.
   PER CURIAM.

Petitioner, Glenda Martinez, petitions for writ of prohibition to prevent the trial judge from presiding over further proceedings in the guardianship of the petitioner’s spouse, for whom she is the designated healthcare surrogate. We grant the petition.

The substantive test for whether a motion to disqualify is legally sufficient is “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Santisteban v. State, 72 So.3d 187, 193 (Fla. 4th DCA 2011). “It is not a question of what the judge feels, but the feeling in the mind of the party seeking to disqualify and the basis for that feeling.” Corie v. City of Riviera Beach, 954 So.2d 68, 70 (Fla. 4th DCA 2007). It must, however, be objectively reasonable. Foy v. State, 818 So.2d 704, 706 (Fla. 5th DCA 2002). The reasons for disqualification must also show personal bias or prejudice to the litigant.’ Levine v. State, 650 So.2d 666, 667 (Fla. 4th DCA 1995).

We have reviewed the verified motion and the transcript of proceedings on which the motion was based. We conclude that the judge’s acts of ejecting petitioner from the courtroom, later striking her testimony on the basis of a perceived insult to him, and his comment that petitioner’s entire demeanor, including that “her face, her voice, her sound, maybe unpleasant to everyone else,” save the ward, would lead any reasonably prudent person to fear that she would not receive a fair hearing before the judge. See, e.g., Colarusso v. Colarusso, 20 So.3d 985, 986 (Fla. 3d DCA 2009).

Although respondent contends that a judge’s comments in the course of attempting to control the courtroom are ordinarily not legally sufficient to require disqualification, see Braddy v. State, 111 So.3d 810, 833-34, 2012 WL 5514368 (Fla. Nov. 15, 2012), we conclude that the judge’s actions as well as his personal comments about petitioner, when taken in combination, far exceeded comments or actions necessary to control his courtroom and were sufficient to evidence to a reasonable person bias requiring disqualification, even if the judge may have felt that he had no bias.

Therefore, we grant the petition but withhold the formal issuance of the writ, as we are sure that the trial judge will act in conformance with this opinion and remit his disqualification so that the matter may be assigned to a different judge.

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


author: STONE, BARRY J., Senior Judge.

text:
    EXOTIC MOTORCARS AND JEWELRY, INC., Appellant, v. ESSEX INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 4D11-2795.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Opinion on Rehearing April 3, 2013.
    Bambi G. Blum of Bambi G. Blum, P.A., Miami, and Lance W. Shinder of Lance W. Shinder, P.A., Boca Raton, for appellant.
    Mitchell L. Shadowitz of Shadowitz Associates, P.A., Boca Raton, for appellee.
   On Appellee’s Motion For Rehearing And/Or Reconsideration

STONE, BARRY J., Senior Judge.

We grant appellee’s motion for rehearing and/or reconsideration, withdraw our opinion dated December 5, 2012, and substitute the following in its place.

Final judgment was entered in favor of Essex Insurance Company in a dispute over insurance coverage in this action for declaratory judgment and breach of contract. The judgment contained no findings of fact, conclusions of law, or other indication of the basis for the trial court’s ruling.

The claim arose out of an accident while the Porsche sports car in question was driven off premises by Dennis Kennedy, the owner of Exotic Motorcars, the insured luxury sports car dealership. It is undisputed that Exotic’s automobile inventory was insured by the Essex policy.

The Porsche was obtained by Exotic from a California wholesale dealer, iLux. Although it is disputed whether Exotic proved that it received a signed title certificate, it did receive a bill of sale and invoice, and placed the car on its showroom floor. It is also undisputed that two days later a buyer from Exotic signed a purchase contract for the Porsche with a $5,000 deposit.

Kennedy testified that at the time of the accident he was en route to have the car inspected by another dealer with a planned pick up by the buyer following the inspection. Essex disputes the purpose for which the car was being driven, thereby negating coverage.

Essex also contends that there is no coverage because the Porsche was not a “covered vehicle” under the policy terms because, under Florida law, Exotic did not hold “title” on the date of the collision. The policy defines a “covered vehicle” as a “titled vehicle held by [Exotic] for sale at a location scheduled on the Declarations .... ” (Emphasis added).

We recognize that there are Florida Statutes mandating that dealers acquire certificates of title and to file dealer reassignment forms. See, e.g., §§ 319.22, 319.23 & 320.27, Fla. Stat. (2010). Whether Exotic had complied with these statutes, however, is not controlling as to whether this was a “titled” vehicle within the meaning of the policy. The policy explicitly grants coverage to “titled” vehicles.

We conclude that the Porsche was a titled vehicle; being one, even as in part acknowledged by Essex claims-manager, that can be licensed for road use. Even were the words “titled vehicle” to be deemed susceptible of more than one interpretation, the words must be read in accordance with their ordinary meaning and, in any event, any ambiguity construed against the insurer. Harrington v. Citizens Prop. Ins. Corp., 54 So.3d 999, 1001 (Fla. 4th DCA 2010).

In this case, there were several grounds upon which the trial court might have found for Essex. On one of those, whether there was policy coverage for the vehicle because it was a “titled” vehicle, we conclude that Exotic was entitled to prevail. However, as to the remaining grounds, the issues were of fact and the evidence was conflicting or subject to differing interpretations.

In cases where, as here, orders on review cannot be resolved without meaningful findings, effective ■ review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute. See Featured Props., LLC v. BLKY, LLC, 65 So.3d 135, 137 (Fla. 1st DCA 2011). This may particularly be the case where the action is one for declaratory relief. See Local 532 of the Am. Fed’n of State, Cnty. & Mun. Emps. v. City of Fort Lauderdale, 273 So.2d 441 (Fla. 4th DCA 1973).

Because the grounds upon which the court found for the insurer do not appear and it is possible that the trial court may have found for the insurer because the court concluded that the Porsche was not a “titled” vehicle, we find the judgment incapable of meaningful review. Accordingly, we reverse and remand for the trial court to enter an amended final judgment and to make findings accordingly-

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Severino MARRON, Appellee.
    Nos. 3D11-1900, 3D11-1781.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.
    Ana M. Davide, Miami, and Andrew McCutcheon, for appellee.

      Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ON MOTION TO RECALL MANDATE

SCHWARTZ, Senior Judge.

Upon consideration of the State of Florida’s motion for .clarification and to recall mandate, we recall the mandate issued on March 8, 2013, withdraw the opinion issued on February 20, 2013, and substitute the following in its stead:

The appellee was convicted, after trial, of possession of cannabis in excess of twenty grams and possession-of a place for purpose of trafficking. Although his sentencing score merited a prison term of twenty-one months to twenty years, the trial court, over the State’s objection, sentenced the appellee to three-hundred sixty-six days in prison followed by community control and reporting probation. The State appeals the downward departure. Because we find that the trial court departed from its statutory obligations, we reverse and remand.

I.

It is axiomatic that a trial court choosing to depart from the sentencing guidelines must provide valid written reasons for doing so. State v. McCray, 31 So.3d 871 (Fla. 3d DCA 2010). The legislature has provided numerous avenues for complying with this requirement. The court may either annotate the scoresheet, Fla. R.Crim. P. 3.704(d)(27)(a), file written reasons within seven days after sentencing, id.-, § 921.00265(2), Fla. Stat. (1998), or, if it orally pronounces its reasoning at the sentencing hearing, provide a written transcription of that pronouncement, id. Despite the State’s repeated objections to the downward departure, the lower court failed to file any written reasons for its decision until twenty-seven days after the date the written judgment and sentence was filed and forty days after the oral pronouncement of the departure sentence. We reject the appellee’s claim that, in any appropriate sense, the court’s reasons were ever “orally announced.” The claim is based upon the fact that during the sentencing colloquy, the trial judge asked questions such as, “[H]e was cooperative with police. Right?” and, “What about the fact [sic] going back to work and being a productive member in society?” Questions like this during an oral colloquy, either in the trial or the appellate court, surely cannot serve as a cognizable statement of a judge’s actual ruling. We are thus obligated to vacate the sentence and remand for the imposition of a new sentence that accords with the statutory requirements.

II.

We also find that the grounds for departure cited in the court’s ad hoc justification are invalid. Its finding that the appellee cooperated with the State’s investigation is unsupported in the record. His admission that two houses, which he owned, contained marijuana grow operations, upon being discovered by police unloading barrels of soil onto one of the properties, does not constitute the type of cooperation contemplated by the statute. See, e.g., State v. Ertel, 886 So.2d 423, 425 (Fla. 2d DCA 2004). His alleged cooperation did not lead to the solving of any crimes or the arrest of any persons. See State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005). The finding that the appellee was a mere accomplice or minor participant is also unfounded. The appellee’s assertion, cited in the trial court’s order, that he was merely an unknowing landlord is not supported by competent, substantial evidence. See State v. Massingill, 77 So.3d 677, 679 (Fla. 3d DCA 2011). See also U.S. v. Rodriguez De Varon, 175 F.3d 930, 944 (11th Cir.1999) (“The fact that a defendant’s role may be less than that of other participants engaged in the relevant conduct may not be dispositive of role in the offense, since it is possible that none are minor or minimal participants.”).

III.

We therefore vacate the sentence, and reverse and remand for a new sentencing hearing. See Jackson v. State, 64 So.3d 90 (Fla.2011). This ruling does not preclude the trial court from imposing a downward departure sentence, supported by valid grounds and procedurally compliant, on remand.

Reversed and remanded.

      . The defendant separately appealed his convictions, and this Court consolidated the two appeals. We affirm, without further discussion, the defendant’s convictions below.

      . This is refuted most clearly by the fact that the jury convicted the appellee of (and the appellee was being sentenced for) possession of a place or structure for trafficking, which required the State to prove that the appellee was "knowingly ... in actual or constructive possession of [a] place [or] structure ... with the knowledge that the place [or] structure ... will be used for the purpose of trafficking in a controlled substance_" § 893.1351(2), Fla. Stat. (2008). The appellee’s claim at sentencing that he was merely an "unknowing landlord” cannot be reconciled with the jury's finding of guilt on this charge.


author: ROWE, J.

text:
    Brent Matthew LUKASZEWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3600.
    District Court of Appeal of Florida, First District.
    April 8, 2013.

      Nancy A. Daniels, Public Defender, and Kara Fenlon, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Virginia Chester Harris and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   ROWE, J.

Brent Lukaszewski appeals his conviction and sentence for felony cruelty to animals in violation of section 828.12(2), Florida Statutes (2011). Lukaszewski argues that the trial court erred in ruling the evidence was sufficient to deny his motion for judgment of acquittal, asserting that 1) the evidence was insufficient to show that his actions were not necessary as discipline or training of his dog; and 2) the evidence was insufficient to show repeated infliction of unnecessary pain or suffering. We affirm Lukaszewski’s conviction and sentence, holding that the evidence in this case was legally sufficient for the jury to find that the elements of the crime were met.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo. Gibson v. State, 940 So.2d 1263, 1265 (Fla. 1st DCA 2006) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). In reviewing a trial court’s denial of a motion for judgment of acquittal, the appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the state. Id. “Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). Where the state has presented evidence to support each element of the crime, a motion for judgment of acquittal must be denied. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999).

To establish the elements of felony cruelty to animals under section 828.12(2), Florida Statutes (2011), the state was required to present competent substantial evidence to show that Lukaszewski committed an intentional act which resulted in “the excessive or repeated infliction of unnecessary pain or suffering” to the dog. See Fla. Std. Jury Instr. (Crim.) 29.13. Section 828.12(2), provides that “[a] person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree....” Because section 828.12(2) is a general intent statute, it does not require intent to be cruel, but only intent to commit the act that results in the cruelty. Reynolds v. State, 784 So.2d 509, 511 (Fla. 1st DCA 2001).

Lukaszewski’s neighbor, an eyewitness, testified that he heard a dog whining and yelping and that it sounded like an animal in distress. He went to see what was going on after about ten minutes of yelling and barking, and he “saw the dog was tied up, hanging on — just standing on two feet, was tied up around the neck, on [what] looked like an old washing pole for the backyard, and just had [the dog] tied up by the collar, and it was hanging there.” The neighbor testified that he saw Lukaszewski strike the dog in the ribs with a two by four, and the dog looked scared and “in a good bit of pain” while she was hanging there. The neighbor testified that when he confronted Lukaszew-ski about abusing his dog, Lukaszewski replied that it was his dog and he could do with it as he pleased.

An investigating officer testified that Lukaszewski told him that his dog went to the bathroom on the floor and he could not let that go; he took the dog outside, put a rope around the dog’s neck, and hung the rope over a tree limb; he cinched the rope tightly enough to keep the dog from escaping; and then he “spanked the dog on the butt with a piece of two by four.” Lukasz-ewski testified at trial that he took the dog outside and “smacked him” with either a “two by four or a two by two piece of construction debris” after the dog defecated in the house; he cinched the dog in order to keep the dog from getting away from him; and the dog-yelped a couple of times when he “spanked” him.

Another officer testified that the dog was elderly, limping, and moving slowly, and that the dog had blood in her mouth and several lacerations to her body. An animal control officer testified that the dog had cuts on her legs. The veterinarian who examined the dog testified that the dog had a bruise on the side of her head and a bruise on her leg and that she was most likely struck more than once because of the physical separation of the areas of bruising on the head and on the front leg. The veterinarian also testified that the injuries to the leg and the head were too far apart on the dog’s body to have occurred from only one strike.

There was testimony that the dog yelped more than once and was struggling to get free, that the dog had its tail tucked and its legs were shaking, and that the dog was suffering or injured. There was testimony that Lukaszewski’s yelling and the dog’s barking continued over a period of at least ten minutes.

The defense moved for a judgment of acquittal, arguing that the state had failed to show that the alleged abuse was not necessary for discipline of the dog or that there was repeated infliction of unnecessary pain or suffering. In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also admits all conclusions favorable to the adverse party that a jury might “fairly and reasonably infer from the evidence.” See, e.g., State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999) (citing Lynch v. State, 293 So.2d 44, 45 (Fla.1974)). Here, the trial court denied the motion on the basis that there was sufficient evidence for the jury to decide the question of whether the alleged abuse was unnecessary, and on the basis that because “the instruction and the information are written in the disjunctive,” the state could prove either “excessive or repeated” infliction of pain or suffering from the evidence presented to the jury.

We agree with the trial court and find the state presented competent substantial evidence for the jury to determine whether the alleged abuse was unnecessary and whether the alleged abuse was excessive or repeated infliction of pain or suffering in violation of section 828.12(2).

We, therefore, AFFIRM Lukaszewski’s judgment and sentence for felony cruelty to animals.

BENTON, C.J., and MARSTILLER, J„ concur.